9th Circuit upholds Interior approval of massive lithium mine

By Niina H. Farah, Hannah Northey | 07/18/2023 07:28 AM EDT

The court found the Interior Department did not violate the National Environmental Policy Act when it greenlighted the Thacker Pass mine.

A dump truck and an excavator work on construction at the Lithium Nevada Corp. mine site.

Construction at Lithium Nevada Corp.'s Thacker Pass mining site on April 24 near Orovada, Nev. Rick Bowmer/AP Photo

A federal appeals court on Monday upheld the Interior Department’s approval of a contested lithium mine in northern Nevada, angering environmentalists even as supporters said it was a victory for batteries in electric vehicles.

The 9th U.S. Circuit Court of Appeals ruled that a lower court acted appropriately when it found earlier this year that the Bureau of Land Management had not violated the National Environmental Policy Act and other federal laws when it approved the Thacker Pass mine.

“The BLM’s approval of the Project was not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with NEPA,” the 9th Circuit said in its 11-page memorandum disposition, a type of concise explanation of the court’s decision.


Jonathan Evans, CEO of project developer Lithium Americas Corp., praised the decision, saying, “We have always been confident that the permitting process for Thacker Pass was conducted thoroughly and appropriately.”

“We are pleased to see such a decisive ruling to further support this decision,” he said. “Construction activities continue at the project as we look forward to playing an important role in strengthening America’s domestic battery supply chains.”

The ruling comes less than a month after the 9th Circuit held oral arguments in the case. At the time, the three-judge panel appeared likely to side with the Interior Department and questioned whether the case belonged back before the U.S. District Court for the District of Nevada.

The Biden administration has supported the project as part of the president’s broader climate objectives. Lithium is a key component of batteries used in EVs and for grid storage, and is facing a supply squeeze.

The mine, which began construction in March, had been fast-tracked by former President Donald Trump.

The 9th Circuit decision follows other setbacks for the mine’s challengers, who failed to convince Nevada District Court Judge Miranda Du to issue an emergency order in February to prevent the project from breaking ground.

“The decision [by the appeals court] will affirm one [of] the worst environmental impact statements that I have seen in my near 20 years of mining accountability experience,” said John Hadder, director of the Great Basin Research Watch, one of several groups challenging the mine.

Sage grouse, tribes and ‘good faith’

Du, an Obama pick, had ordered BLM to redo part of its environmental analysis that focused on how the mine should handle waste and tailings. The agency completed its review in May. The appeal decided on Monday focused on the parts of the analysis that the lower court had not ordered BLM to reconsider.

The 9th Circuit decision also affirmed Du’s order to send the analysis of how to handle waste back to the agency rather than toss it out, after determining that she had correctly found that BLM was likely to be able to back up its decision-making on remand.

BLM does not comment on pending litigation, but in oral arguments, Justice Department attorneys said the district court judge had been correct to not toss out the agency’s analysis of the mine.

Tribal and environmental groups claimed in their appeal that the open-pit mine would lead to the destruction of ancestral lands and important habitat for species like the pronghorn.

Erik Molvar, executive director of Western Watersheds Project, said the court’s ruling also would mean the destruction of vital sage grouse habitat and sacred sites and could spell “imminent extinction” of a rare springsnail.

“We all recognize the need for renewable energy, but it can’t come at the cost of making the biodiversity crisis worse,” Molvar said in a statement.

The challengers said they were still considering their next course of action. Their options include asking the 9th Circuit to reconsider the ruling before a new panel or en banc before a full panel of active judges on the court.

Katie Fite, public lands director for WildLands Defense, blasted BLM for spending millions of dollars on projects in and around Nevada to protect “core sagebrush habitat,” even while allowing Thacker Pass to move forward. The agency, she said, is allowing Lithium Americas to destroy “irreplaceable priority” habitat for sage grouse to make way for the open-pit mine, waste storage and processing plant.

“This shows how broken BLM public lands management really is,” said Fite.

In its decision, the 9th Circuit concluded that BLM’s analysis of the project included a “reasonably complete discussion” of how to mitigate harms stemming from the project, including effects on groundwater, wildlife and air pollution. The agency had considered baseline conditions facing pronghorns, greater sage grouse and other wildlife, the court found.

The court also determined that BLM “reasonably and in good faith identified tribes for consultation,” rejecting claims that the agency had not done enough to consult with the Burns Paiute Tribe.

Judges Kenneth Lee and Lawrence VanDyke, both Trump picks, decided the case, along with Judge N. Randy Smith, a George W. Bush appointee.

Correction: An earlier version of this article misstated the administration that approved the Thacker Pass lithium mine.