State of Minnesota by Smart Growth Minneapolis, et al., Appellants, vs. City of Minneapolis, Respondent.
A19-0999
STATE OF MINNESOTA IN COURT OF APPEALS
Filed March 9, 2020
Florey, Judge; Concurring specially, Johnson, Judge
Hennepin County District Court, File No. 27-CV-18-19587
Timothy J. Keane, Kutak Rock L.L.P., Minneapolis, Minnesota; and
Nekima Levy-Pounds, Minneapolis, Minnesota (for appellants)
Erik Nilsson, Interim Minneapolis City Attorney, Ivan Ludmer, Kristin R. Sarff, Assistant City Attorneys, Minneapolis, Minnesota (for respondent)
Considered and decided by Florey, Presiding Judge; Johnson, Judge; and Hooten, Judge.
S Y L L A B U S
An action under the Minnesota Environmental Rights Act (MERA) is properly dismissed for failure to state a claim for which relief can be granted when the only relief sought by the plaintiffs is environmental review that the defendant is exempt from conducting under the Minnesota Environmental Policy Act (MEPA).
FLOREY, Judge
This appeal by Smart Growth Minneapolis, the Audubon Chapter of Minneapolis, and the Minnesota Citizens for the Protection of Migratory Birds (collectively, appellants) arises from an action alleging that the 2040 comprehensive plan (the plan) adopted by respondent City of Minneapolis violates MERA,
FACTS
I. Background
MERA was enacted in 1971, and provides citizens a civil remedy to protect the air, water, land, and other natural resources within this state.
MEPA and rules adopted by the Minnesota Environmental Quality Board (EQB) govern environmental review within the state. The EQB has rulemaking authority and was
MERA provides a mechanism for citizens of the state to bring a civil action “for the protection of the air, water, land, or other natural resources . . . from pollution, impairment, or destruction.” MERA states that “whenever the plaintiff shall have made a prima facie showing that the conduct of the defendant has, or is likely to cause the pollution, impairment, or destruction of the air, water, land or other natural resources located within the state, the defendant may rebut the prima facie showing by the submission of evidence to the contrary.”
Comprehensive planning processes and requirements for the city of Minneapolis are governed by
II. Procedural Posture
Appellants filed a complaint and moved for declaratory and injunctive relief on December 5, 2018. Appellants alleged that the Minneapolis City Council‘s scheduled approval of the plan violated MERA because it would “likely . . . cause the pollution, impairment, or destruction of the air, water, land or other natural resources located within the state.”
The city council voted to submit thе plan to the Metropolitan Council on December 7, 2018. Later that month, the city moved to dismiss appellants’ claim pursuant to
ISSUES
Did the district court err by granting the city‘s Rule 12.02(e) motion?
A. Appellants fail to state a viable claim under MERA because the only relief they seek is environmental review that the city is exempt from conducting under MEPA.
B. Appellants fail to state a viable claim under MERA because they have not pleaded facts sufficient to support a causal link between the сity‘s comprehensive plan and “pollution, impairment, or destruction” of natural resources.
ANALYSIS
On appeal from the dismissal of a case pursuant to
A. Appellants fail to state a viable claim under MERA because the only relief they seek is environmental review that the city is exempt from conducting under MEPA.
Appellants’ MERA claim sought to enjoin the city from approving the plan until the city satisfies its rebuttal or affirmative defense pursuant to MERA—namely an “exhaustive environmental review.”
Both parties rely on Holte v. State, a case involving a MERA challenge to the Minnesota Grasshopper Control Act (MGCA). 467 N.W.2d 346, 348 (Minn. App. 1991). The issue in Holte was whether MERA provided a vehicle to challenge the MGCA. Id. This court stated that, “had the legislature wished to subject the MGCA to MERA, it could
Cities are required to review and amend their comprehensive plans evеry ten years.
Based on the plain language of both MERA and MEPA, we conclude that appellants’ MERA claim cannot force environmental review of the plan pursuant to MERA because MEPA expressly exempts such review. Because MEPA was adopted subsequent to MERA and contains a specifiс exemption, MEPA controls. Accordingly, we affirm the district court‘s rule 12 dismissal of appellants’ claim.
B. Appellants fail to state a viable claim under MERA because they have not pleaded facts sufficient to support a causal link between the city‘s comprehensive plan and “pollution, impairment, or destruction” of natural resources.
Even if a MERA action could be used to obtain environmental review of a comprehensive plan, the district court proрerly granted the city‘s motion to dismiss because appellants have failed to plead a prima facie case. The district court concluded that appellants have not sufficiently alleged that the city “has, or is likely to cause the pollution, impairment, or destruction” of natural resources because appellants “can point to no City project or action that would itself cause any pollution, impairment, or destruction of natural resources” and allege only that the approval of the plan will cause “an immediate and full build-out of the City per its 2040 Plan.” We agree.
Appellants did not plead any specific facts to support their allegations that the approval of the plan is likely to materially and adversely affect the environment, or anything beyond repeated conclusory allegations that there is the “potential for and likelihood” of “dramatic” increases in the amount of impеrvious surface area and number
The city contends that appellants have not pointed to any “discrete, identifiable projects” that are likely to materially and adversely affect the environment. Appellants appear to allege that thе mere approval of the plan is conduct that will necessarily lead to “pollution, impairment, or destruction.”
Both sides rely on Stansell v. City of Northfield, in which this court affirmed a district court‘s determination that a MERA challenge to the building of a retail store in a historical district was “speculative and tenuous” because the challenger‘s “chain of causation relies so heavily on economic considerations that are beyond MERA‘s intended
Our cases addressing the nature of a “prоject” for MEPA purposes are instructive. While not directly on point, we applied similar reasoning in Minnesotans for Responsible Recreation v. DNR, 651 N.W.2d 533 (Minn. App. 2002) (MRR). There, the issue was whether Department of Natural Resources (DNR) system plans were “projects” for the purposes of MEPA and thus subject to environmental review. Id. at 538. While MEPA does not define “project,” the rules governing environmental review suggest that a project is “a governmental action, the results of which would cause рhysical manipulation of the environment, directly or indirectly” and that the determination “of whether a project requires environmental documents shall be made by reference to the physical activity to be undertaken and not to the governmental process of approving the project.”
We recently applied the reasoning from MRR in Metallic Leases, 838 N.W.2d at 213. Metallic Leases concerned the sale of state mineral leases. 838 N.W.2d at 212. The DNR concluded that the sale of mineral leases alone did not constitute a “project” for the purpose of triggering an environmental review under MEPA. Id. at 213-14. Based on the reasoning from MRR, we agreed. We noted that “[t]o the extent that the leases grant exclusive rights to explore for and mine minerals, they also contemplate the possibility of on-the-ground physical changes to the environment.” Id. at 217. We also noted that the leases “are somewhat site-specific;” but that “the contemplated physical changes are indefinite,” that “the locations of any particular future activities are not ascertainable now,” that it was “uncertain whether any of the lessees will conduct invasive exploratory activities on the leased sites,” and that such activities “will depend not only on . . . [the] lessees’ business decisions to pursue them, but also on their ability to obtain required approvals and permits.” Id. at 217-18.
Here, the plan is analogous to the system plans described in MRR, Stansell, and Metallic Leases. Based solely on the allegations in the complaint, appellants have failed to state a claim upon which relief can be granted because they did not allege any facts surrounding adoption of the plan that are likely to materially and adversely affect the
D E C I S I O N
The district court correctly granted the city‘s motion to dismiss pursuant to
Affirmed.
State of Minnesota by Smart Growth Minneapolis, et al., Appellants, vs. City of Minneapolis, Respondent.
A19-0999
STATE OF MINNESOTA IN COURT OF APPEALS
JOHNSON, Judge (concurring specially)
I join in part B of the opinion of the court without qualification. But I respectfully disagree with the reasoning аnd the conclusion in part A of the opinion of the court.
The two statutes at issue in part A—the Minnesota Environmental Rights Act (MERA), which is codified in chapter 116B of the Minnesota Statutes, and the Minnesota Environmental Policy Act (MEPA), which is codified nearby in chapter 116D of the Minnesota Statutes—are two parts of “a coherent legislative policy.” People for Envtl. Enlightenment & Responsibility, Inc. v. Minnesota Envtl. Quality Council, 266 N.W.2d 858, 865 (Minn. 1978) (PEER). MERA was enacted first, in 1971. See 1971 Minn. Laws ch. 952, §§ 1-14, at 2011-19. MEPA was enacted two years later “to complement MERA.” PEER, 266 N.W.2d at 865; seе also 1973 Minn. Laws ch. 412, §§ 1-7, at 895-902. The supreme court has given effect to both statutes without declaring that one statute supersedes the other. See PEER, 266 N.W.2d at 865Id. The supreme court also has stated that the legislature did not intend for other, contemporaneously enacted environmental statutes “to supersede MERA.” Id. Rather, the supreme court has recognized that “the legislature passed all these statutes to ensure that administrative agencies would discharge fully their environmental responsibilities.” Id. This court has followed supreme court precedent by allowing a plaintiff to simultaneously pursue relief
In this case, the district court reasoned that “MEPA exempts comprehensive plans from environmental review” and, without any precedent, reasoned further that the MEPA exemption “applies to environmental review under MERA.” It should be noted that the MEPA exemрtion on which the district court relied is contained in an administrative rule, not in MEPA itself. See
This court‘s opinion in Holte v. State, 467 N.W.2d 346 (Minn. App. 1991), is easily distinguishable from this case. In Holte, we considered whether a MERA claim was barred by the Minnesota Grasshopper Control Act (MGCA), which was passed by the legislature in May 1989 and signed by the governor in June 1989, see 1989 Minn. Laws ch. 350, art. 10, § 2, at 3139, 3161, shortly after the state department of agriculture had determined in “the sрring of 1989” that “‘the increased population [of grasshoppers] posed a risk to
In PEER, the supreme court held that the Power Plant Siting Act (PPSA), which at the time was cоdified in chapter 116C of the Minnesota Statutes, does not supersede MERA. Id. at 865-66 (citing
The legislature, being aware of the existence of MERA when it passed the PPSA, cannot be assumed to have exempted PPSA proceedings from having to comply with MERA without
express statutory language to that effect. Since such language is absent, the legislature must have intended to permit private citizens to bring or intervene in civil actions to protect the state‘s natural resources whenever they think the MEQC1 has not done so adequately.
Id. The reasoning in PEER with respect to PPSA should apply in the same way in this case with respect to MEPA. The MEPA and PPSA statutes were enacted within days of one another, two years after the еnactment of MERA. See No Power Line, Inc. v. Minnesota Envtl. Quality Council, 262 N.W.2d 312, 323 (Minn. 1977). In the absence of any language in MEPA expressly stating that either the act itself or the exemption rule supersedes MERA, this court should not conclude that the exemption rule bars appellants’ MERA claim.
It appears that appellants elected not to petition the environmental quality board pursuant to MEPA for environmental review of the city‘s 2040 plan. See