In re Final Alt. Urban Areawide Review & Mitigation Plan for the Upper Harbor Terminal Dev.

973 N.W.2d 331

FINAL ALTERNATIVE URBAN AREAWIDE REVIEW AND MITIGATION PLAN FOR the UPPER HARBOR TERMINAL DEVELOPMENT.

A21-1428

Court of Appeals of Minnesota.

Filed March 28, 2022

Melissa Lorentz, Evan Mulholland, Minnesota Center for Environmental Advocacy, St. Paul, Minnesota (for relators Community Members for Environmental Justice and Minnesota Center for Environmental Advocacy)

Charles N. Nauen, Rachel A. Kitze Collins, Lockridge Grindal Nauen PLLP, Minneapolis, Minnesota; and

James R. Rowader, Jr., Minneapolis City Attorney, Mark Enslin, Assistant City Attorney, Minneapolis, Minnesota (for respondent City of Minneapolis)

Considered and decided by Bryan, Presiding Judge; Florey, Judge; and Wheelock, Judge.

SPECIAL TERM OPINION

BRYAN, Judge

Respondent City of Minneapolis approved a final alternative urban areawide review¹ for the proposed redevelopment of the Upper Harbor Terminal in Minneapolis and published notice of its final decision in the EQB Monitor. Relators Minnesota Center for Environmental Advocacy and Community Members for Environmental Justice subsequently filed this certiorari appeal based on the provisions of Minnesota Statutes section 116D.04, subdivision 10. Relators also filed a declaratory-judgment action in district court, which the district court stayed pending this appeal. Respondent moved to dismiss this appeal, arguing that subdivision 10 does not authorize certiorari review of final decisions regarding an alternative urban areawide review.

We agree with respondent that, by its plain language, subdivision 10 refers only to environmental impact statements and environmental assessment worksheets; it does not refer to other forms of environmental review created as alternatives to environmental impact statements and environmental assessment worksheets.² We therefore grant the motion to dismiss this appeal.

DECISION

Relator's argument that subdivision 10 of section 116D.04 permits certiorari review of final decisions regarding an alternative urban areawide review requires us to consider the meaning and effect of that portion of the statute. The first step of statutory interpretation is to "determine whether the statute's language, on its face, is ambiguous." Am. Tower, L.P. v. City of Grant , 636 N.W.2d 309, 312 (Minn. 2001). "A statute is ambiguous only if it is susceptible to more than one reasonable interpretation." 500, LLC v. City of Minneapolis , 837 N.W.2d 287, 290 (Minn. 2013). "In determining whether a statute is ambiguous, we will construe the statute's words and phrases according to their plain and ordinary meaning." Christianson v. Henke , 831 N.W.2d 532, 536 (Minn. 2013) (citation omitted) (internal quotations marks omitted).

Section 116D.04 is clear and susceptible to only one reasonable interpretation: certiorari review is authorized only for final decisions relating to environmental impact statements and environmental assessment worksheets, not to those regarding alternative urban areawide reviews. Our analysis begins with the acknowledgement that section 116D.04 refers to three distinct types of environmental review documents, two specific types (environmental impact statements and environmental assessment worksheets) and one generic category of alternative forms of environmental review. First, section 116D.04 references environmental impact statements and describes the components of environmental impact statements:

The environmental impact statement must be an analytical rather than an encyclopedic document that describes the proposed action in detail, analyzes its significant environmental impacts, discusses appropriate alternatives to the proposed action and their impacts, and explores methods by which adverse environmental impacts of an action could be mitigated. The environmental impact statement must also analyze those economic, employment, and sociological effects that cannot be avoided should the action be implemented. To ensure its use in the decision-making process, the environmental impact statement must be prepared as early as practical in the formulation of an action.

Minn. Stat. § 116D.04, subd. 2a(a) (2020).

Second, section 116D.04 refers to environmental assessment worksheets. In contrast to the analytical and detailed environmental impact statement, an environmental assessment worksheet is a "brief document ... designed to set out the basic facts," and it serves a unique purpose: "to determine whether an environmental impact statement is required for a proposed action." Id. , subd. 1a(c). Section 116D.04 also discusses when one or the other environmental review document should be prepared, id. , subd. 2a(a),(b),(c),(j) (2020), as well as procedures and timelines unique to each document, id. , subds. 2a(d),(e), 3a (2020).

Third, the legislature contemplated circumstances in which a streamlined environmental review process might be appropriate and it created an alternative to environmental impact statements and environmental assessment worksheets: a generic, catch-all category, using the term "alternative forms of environmental review."³ The legislature authorized the Environmental Quality Board (the board) to determine what would fall within this third category, directing the board to specify the characteristics, requirements, and procedures to be followed for any type of alternative environmental review document that the board created:

Alternative review. The board shall by rule identify alternative forms of environmental review which will address the same issues and utilize similar procedures as an environmental impact statement in a more timely or more efficient manner to be utilized in lieu of an environmental impact statement.

Id. , subd. 4a (2020).⁴

Having determined that the plain language of the statute identifies three separate types of environmental review, we now review the language of the authorization for certiorari review in subdivision 10. In this subdivision, the legislature referred to the first and second types of environmental review, expressly using these two terms of art, and it did not reference any alternatives to environmental impact statements and environmental assessment worksheets, either specifically or generally:

Review. A person aggrieved by a final decision on the need for an environmental assessment worksheet, the need for an environmental impact statement, or the adequacy of an environmental impact statement is entitled to judicial review of the decision under sections 14.63 to 14.68. A petition for a writ of certiorari by an aggrieved person for judicial review under sections 14.63 to 14.68 must be filed with the court of appeals and served on the responsible governmental unit not more than 30 days after the responsible governmental unit provides notice of the final decision in the EQB Monitor.

Minn. Stat. § 116D.04, subd. 10. The language is clear: the legislature only authorized certiorari review for final decisions regarding environmental impact statements and environmental assessment worksheets. Because the authorization of certiorari review does not include any reference to alternative forms of review identified or created by the board pursuant to subdivision 4a, we conclude that this court cannot exercise certiorari review over the alternative urban areawide review decision in this case.

Relators argue that the term "environmental impact statement" in subdivision 10 unambiguously includes the term "alternative urban areawide review." Relators base their argument on the legislative history of section 116D.04, the history of the board's regulations, and the phrase "in lieu of an environmental impact statement" in subdivision 4a. We are not persuaded for three reasons.

First, the argument contravenes our caselaw regarding how this court determines ambiguity. Only after identifying ambiguity in the current statutory language should we consider legislative history or the history of the board's regulations. E.g. , In re Welfare of Child. of J.B. , 782 N.W.2d 535, 545 (Minn. 2010) ("Resort to legislative history to interpret a statute is generally appropriate only where the statute itself is ambiguous."); Laase v. 2007 Chevrolet Tahoe , 776 N.W.2d 431, 435 n.2 (Minn. 2009) (acknowledging that legislative history is an extrinsic source and cannot be relied on to determine ambiguity); Nelson v. State , 896 N.W.2d 879, 885 (Minn. App. 2017) ("[A]bsent ambiguity, this court does not resort to legislative history to interpret a statute." (quotation omitted)), rev. denied (Minn. Aug. 8, 2017).

Second, relators misunderstand the meaning of the phrase "in lieu of an environmental impact statement" in subdivision 4a. Under subdivision 4a, the board is authorized to establish "forms of environmental review" that are "more timely or more efficient" than an environmental impact statement, and this streamlined process can "be utilized in lieu of an environmental impact statement." The phrase "in lieu of" plainly reflects the board's authority to create an alternative to an environmental impact statement, but the use of this phrase does not relate to judicial review, and the creation of the alternative urban areawide review process does not change the plain meaning of the term "environmental impact statement" as that term is used in subdivision 10. We cannot agree that the use of the phrase "in lieu of" makes the term "alternative urban areawide review" interchangeable with the term "environmental impact statement." Environmental impact statements, environmental assessment worksheets, and alternative urban areawide reviews are separate forms of environmental review, and governmental units are required to follow one path or another, but these terms are plainly not substitutes for one another.

Third, we do not accept relators’ argument because the current administrative rule regarding judicial review supports respondent's motion to dismiss. In 1982, the board promulgated a rule regarding judicial review of the environmental review process,...