Mining law has barely changed since 1872. Can Congress agree on a fix?
This year has already brought some unusual setbacks for mining companies, thanks to the Biden administration. On January 26, the administration dealt a possibly fatal blow to Twin Metal Minnesota’s decades-long effort to reopen a nickel and copper mine near the Boundary Waters, the most visited wilderness area in the country. A few days later, the Environmental Protection Agency vetoed the proposed Pebble Mine, invoking the Clean Water Act to halt a gold and copper mine near one of the world’s largest spawning grounds for salmon in Alaska.
The rejections were rare for the industry — in the case of the Pebble Mine, it was the first time that the Clean Water Act was used to stop a hardrock mine. While tribes and environmental organizations welcomed the news, mining companies and their allies in Congress criticized the Biden administration for standing in the way of its own clean energy goals.
Metals like copper, nickel, and lithium are all used in electric vehicle batteries as well as for wind and solar energy storage; as such, they’ve been dubbed “critical” to getting the United States off fossil fuels. The landmark Inflation Reduction Act that Biden signed into law last summer aims to bolster domestic production of these minerals, with billions for mine development and tax credits for cars that use materials mined in the United States (or supplies from free-trade agreement partners). At the moment, there’s only one lithium mine in the country.
“If Democrats were serious about developing renewable energy sources and breaking China’s stranglehold on the global market, they would be flinging open the doors to responsible mineral development here in the U.S.,” said Bruce Westerman, a Republican representative from Arkansas and the new chair of the House Natural Resources Committee, in a statement following the news about Boundary Waters.
Metals mining is the country’s largest source of toxic waste. But there are ways to get more of these critical metals that would minimize the damage to ecosystems and local communities. The problem, according to experts, is that the country’s outdated mining laws are blocking the path forward.
Mining in the U.S. is largely governed by a Gold Rush-era law that hasn’t been significantly changed since Ulysses S. Grant was president; it includes no guidelines on tribal consultation, reclamation, or environmental protection. And it covers more than 90 percent of hardrock mines in the country. Environmental groups say the law makes it too easy for mining companies to pursue projects in places that put people and the environment most at risk.
“You put a stake in the ground, go to the local Bureau of Land Management office, and file a fee and some paperwork,” said Aaron Mintzes, senior policy counsel for Earthworks, a nonprofit focused on preventing the destructive impacts of extraction. “As long as you discover minerals there, you have a valid mine play.”
Unlike with oil and gas drilling and coal mining, hardrock mining on public lands doesn’t require companies to secure a lease from the federal government or pay royalties to develop minerals under the General Mining Law of 1872.
According to Roger Flynn, founding director of the nonprofit law center Western Mining Action Project, the Bureau of Land Management and the U.S. Forest Service treat a mining claim as a right to mine and interpret the law as giving them little authority to deny a proposal. “The BLM and the Forest Service, with a few minor exceptions, have never said no to a major mine,” said Flynn.
Laws like the National Environmental Policy Act, the Endangered Species Act, and the Clean Water Act also govern mines; federal agencies are required to study and disclose the possible harm from mining, receive public input, and present alternatives. But Blaine Miller-McFeeley, a senior legislative representative with Earthjustice, says that because of how mining is regulated, adherence to these federal standards effectively becomes “a box-checking exercise” for companies. The level of pollution allowed is also so high, he said, that it’s hard to enforce any type of cleanup when a mine closes.
Patrick Donnelly, the Great Basin Director for the Center for Biological Diversity, says the lack of planning and guidance for where mines should be approved sets companies up for protracted legal battles. “We just give out mining permits to anybody, for any mining proposal, wherever it is,” Donnelly said. “If the mining industry [wasn’t allowed to] propose such terrible mines, maybe they wouldn’t get fought so much.”
For their part, Republicans have taken aim at the environmental review and public participation processes required by the National Environmental Policy Act, known as NEPA, in order to speed up permitting. In a congressional hearing on energy and mining on Wednesday, they called for shortening the NEPA process and other reforms that conservationists say would weaken agencies’ ability to assess the environmental impacts of proposals and restrict the window of time in which communities have a say.
Earlier in January, Representative Pete Stauber, a Republican who represents the Minnesota district that would have been home to the Twin Metals mine, introduced the Permitting for Mining Needs Act. The bill would set time limits on environmental reviews under NEPA and limit lawsuits to 120 days after a permitting decision. Stauber’s proposed legislation could become part of the larger permitting reform package that Westerman is trying to pass this spring. Last year, Westerman’s own bill, the Strengthening American Minerals Supply Chains Act, would have similarly streamlined the review process, while also prohibiting federal agencies from withdrawing permits and allowing companies to get waivers for certain types of pollution.
“Opening a mine in the U.S. typically involves multiple agencies and the navigation of tens or even hundreds of permitting processes,” wrote Ashley Burke, a spokesperson for the National Mining Association, in a statement to Grist. She said a lack of transparency, fuzzy timelines for environmental assessments, and little coordination between various agencies were reasons why the mining industry supported Westerman’s bill. “Ours is one of the longest permitting processes in the world for mining projects,” she said.
Environmental lawyers contest that claim, pointing to a Government Accountability Office report from 2016 showing that permitting times ranged from 1 month to 11 years, but lasted 2 years on average. To Miller-McFeeley, that’s reasonable when compared with other countries where hardrock mining occurs, like Canada and Australia. The outlier mines that take longer to permit “are often the ones that are the most impactful or the most problematic,” he said.
The GAO report cited incomplete paperwork from mining companies and understaffed federal agencies as the two main reasons why the process can get bogged down. With the IRA’s infusion of $1 billion toward environmental analysis and permitting, environmental advocates say the process should speed up, allowing the BLM to get through the backlog of applications under review without truncating the NEPA timeline. They also agree with efforts by Republican lawmakers to promote better coordination between the permitting agencies, but are critical of proposals to let one agency oversee the process.
House Democrats are pulling together their own proposal for mining law reform, which they say would make the process more efficient while strengthening environmental standards and community protections. It would also set up federal guidelines for tribal consultation since the vast majority of “critical” metals are located on or near Native American reservations.
“Right now, there really is no federal guidance [on tribal consultation],” said a policy staffer for the Democrats’ House Natural Resources Committee Energy and Mineral Resources Subcommittee. “It’s one of the places where we might be able to see bipartisan compromise because it’s hard for mining companies to operate without social license.”
The House Democrats’ proposal is expected to build on the Clean Energy Minerals Reform Act, introduced last session by Representative Raúl Grijalva from Arizona, which would have created a leasing system for mines and required companies to pay royalties.
Meanwhile, an interagency working group led by the Department of the Interior is working on recommendations to Congress for updating the 1872 mining law. The group is also drafting new rules that environmental advocates hope will give the BLM and the Forest Service more teeth in reviewing and deciding to approve new mines. A coalition of tribes, Indigenous groups, and conservation organizations has outlined their proposed revisions, which include clarifying the BLM’s authority to protect tribal resources and closing loopholes that allow the mining industry to avoid consultation with local communities near proposed mines.
Take the Lithium Americas mine at Thacker Pass in northern Nevada. The company received its permits in February 2021, less than a year after it started its environmental review. But the project has been in court since then after conservation groups, a rancher, and two local tribes sued the BLM for failing to consider the project’s environmental impacts and failing to properly consult the tribes. On Monday, a federal judge upheld the mine’s approval but sent it back to the BLM for additional review of the mine’s right to dump its waste in the area.
“Thacker Pass used a fast-tracking process which overlooked key points about water reclamation at the end of the project,” said Gary McKinney, a member of the Duck Valley Shoshone Paiute Tribe and the People of Red Mountain, who is fighting the controversial mine. “The general public was kept from understanding the true negative impacts of lithium mining.”
If the mine goes through, McKinney said he would be concerned that lithium mining will destroy ancestral land in North America just as it has in South America.
While the mining industry and Republican representatives emphasize the human rights abuses connected to the production of critical minerals abroad as a reason to expand mining at home, Mintzes from Earthworks says that doesn’t mean the U.S. should lower the bar and encourage more mining by weakening federal regulations.
“The message from the GOP is, ‘Why have slave labor in the Congo source your cobalt when you can find it in the Boundary Waters?’” Mintzes said. “The message from our community is that the State Department should use due diligence to root out slave labor everywhere, raising standards abroad and here, including through mining law reform.”