The protection of Minnesota’s environment is both a core value of many Minnesotans and a heavily debated topic within the state. Minnesota was among the first states to pass its own Environmental Policy Act and is currently one of only sixteen states to have such a law in place. The attention paid to these issues, as well as many other environmental debates, demonstrates Minnesotans’ desire for involvement in a responsible environmental review process. However, certain mechanics of that review process are flawed.
When the Minnesota Environmental Policy Act (MEPA) was first passed, one purpose of the law was to force agencies to consider alternatives in determining the use of Minnesota’s natural resources. The statute prohibits projects with significant environmental effects from going forward where a feasible and prudent alternative exists. However, alternatives analysis has become increasingly rare.
Thorough consideration of reasonable alternatives to projects in environmental review provides government agencies with stronger input into the development of proposed projects. Additionally, providing project alternatives in environmental review helps inform the public of the impact of a project and the potential alternative options for projects, thereby providing the public an opportunity to contribute to the development of the project. Such involvement encourages public trust and acceptance of projects and builds trust between agencies and the public. The notion of a public weighing of environmental costs against economic or other benefits from a project encourages robust environmental review in as many projects as possible. For these reasons, alternatives should be considered in as many projects as possible. Unfortunately, as others have observed, project proposers and Responsible Government Units (RGUs) often avoid alternatives review in Minnesota.
This Note argues that the Environmental Quality Board (EQB) should revise its rules to require consideration of alternatives in environmental assessment worksheets in order to better fulfill the intentions of MEPA and the Minnesota Environmental Rights Act (MERA). This Note will also briefly discuss the potential for a MERA Section 10 suit to compel such action. Under MERA Section 10, a party may challenge an agency’s rules or procedures, and if the party can present a prima facie case that said rules or procedures are insufficient to protect the natural environment, a district court must require the agency to undergo a rulemaking process. The agency is then required to show, by a preponderance of the evidence, that in the rulemaking process they adequately addressed the issue presented by the plaintiff. Part II of this Note explains the basics of environmental review in Minnesota. Part III documents the shift in the use of Environmental Assessment Worksheets (EAWs) and Environmental Impact Statements (EISs) in Minnesota’s environmental review program, and through comparison, will show that Minnesota considers alternatives at a lower rate than similar states. Part IV argues that a rule amendment is necessary to ensure adequate alternatives analyses. Ultimately, to protect our natural resources and ensure that our natural resources are used in the most responsible way, as intended by MEPA, a greater number of project proposals should consider alternatives. One way to do this is for the EQB to require alternatives in EAWs.