Biden unveils long-awaited mining revamp

By Hannah Northey | 09/12/2023 01:36 PM EDT

The administration outlined more than 60 recommendations to speed up mine approvals and change the 151-year-old law that governs hardrock mining, but bypassed stricter time limits for public lands permitting.

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

Construction in April at the Thacker Pass lithium mine site near Orovada, Nev. The mine, which is owned by Lithium Americas, will supply lithium to General Motors. But it was opposed by many members of nearby tribes. Rick Bowmer/AP Photo

This story was updated at 2:33 p.m. EDT.

The Biden administration released its road map to securing a domestic supply chain of the minerals needed for the energy transition Tuesday, but rejected calls to include stricter time limits for permitting of mines on public lands — a change that both the industry and some in government say is needed.

In a highly anticipated report originally due last year, the interagency working group led by the Interior Department faced a difficult task: balancing the need for mining of minerals critical to renewable energy with the environmental damage mines often create for surrounding communities.


The end result was a document that laid out more than 60 recommendations to update federal agency policies and the 151-year-old law that governs hardrock mining on federal land.

The working group was born of the Biden administration’s aggressive climate agenda, which will require a rapid build-out of supply chains for electric vehicles, solar panels and other technology that needs high inputs of materials like lithium, cobalt and nickel.

Thanks in part to incentives in Democrats’ 2022 climate law, the United States has seen a steady stream of announcements of EV battery factories and other manufacturing facilities.

But experts have repeatedly warned that demand is poised to outstrip the production of critical minerals — a sector that China currently dominates — while domestic mining projects often face opposition and litigation.

The working group offered a host of legislative, regulatory and policy process recommendations that could make their way into a permitting reform package, which bipartisan senators are planning to discuss in coming days.

On the legislative side: changing the law to create a mine leasing system and impose royalties on minerals extracted from public land. On the federal agency side: synchronizing permitting efforts of different departments, but not shortening environmental reviews.

The final report also reflects the administration’s difficult challenge, given mounting tribal objections to high-profile mining projects, many of which are close to reservation lands and waters. While stopping short of recommending that Native American tribes be able to halt mines on non-tribal land, the report does call for agencies to prioritize projects for which developers show they have obtained “free, prior and informed consent” from tribal nations.

Such streamlining and upfront consultation is critical, given inefficiencies and problems that currently plague the federal review process, not to mention litigation, according to the report.

The report was met with applause from House Natural Resources Committee ranking member Raúl Grijalva (D-Ariz.), but also calls for more action from environmental and tribal groups, as well as pushback from the National Mining Association, the mining sector’s largest trade association. That group warned the blueprint lacks urgency and that some provisions like leasing and the proposed royalties would actually create obstacles for domestic projects and increase reliance on countries with questionable practices.

“While we’re still reviewing the report, it’s clear that when it comes to the global minerals game, the U.S. is critically outmatched — by our geopolitical rivals and allies alike, and the administration acknowledges this,” said Rich Nolan, NMA’s president and CEO. “Unfortunately, if the Biden-Harris administration’s stated objective is to secure our nation’s domestic mineral supply chains while supporting responsible mining, the recommendations contained in this report don’t do anything to advance the ball.”

Kathy Bancroft, tribal historic preservation officer for the Lone Pine Paiute-Shoshone Tribe, said it’s disappointing the administration didn’t consider the tribe’s petition for rulemaking. “For too long our tribal cultural resources have been threatened by mineral exploration, and consultation remains inadequate, “ said Bancroft. “To uphold Indigenous sovereignty, I once again urge the Biden administration to revise the outdated mining regulations.”

Added Allison Henderson, the Southern Rockies director at the Center for Biological Diversity: “These modest reforms are a good first step, but they’re not enough to safeguard our water and communities.”

While agencies intend to implement changes they can make internally, an administration official who was granted anonymity to speak freely acknowledged in an interview with E&E News that pushing changes through a divided Congress could be more challenging.

That includes calls for lawmakers to impose a leasing system on miners, a move that the industry has rejected as a non-starter. The report also calls for companies to pay a net royalty of between 4 and 8 percent on minerals extracted from public lands, money that would then go toward reclaiming disturbed land, helping establish a leasing system, and supporting communities and tribes affected by the project.

As it stands, the General Mining Act of 1872 requires mines to pay no royalties, but the official said the mining sector has said it would support a rate of 2 percent.

Absent from the report are changes tied to industry complaints about long permitting timelines. Authors of the report rebuffed assertions from EV makers like Ford Motor Co. and from the National Mining Association that it can take between seven to 10 years to secure federal approvals for mines in the United States, while it takes just two to three years in countries like Australia and Canada.

But the report said such claims are unfounded, and federal data shows that most environmental reviews have taken four to five years to complete.

The administration official said that while there’s room for efficiencies throughout the federal review process, the overall timeline of about 16 to 17 years from exploration to production is on par with what’s happening around the world and cannot be significantly truncated.

“You’re not going to take a 17-year process and bring it down to five years,” said the official.

The bigger challenges, the report’s authors contend, are a combination of incomplete mining applications and plans, underfunded and understaffed federal agencies, and federal regulations or consultation that’s duplicative or misaligned.

Addressing those problems, the official said, will ultimately help the agencies comply with a provision tucked into the debt ceiling deal passed earlier this year, which imposes a one-year deadline for producing environmental impact assessments and a two-year maximum for environmental impact statements.

Separately, the Interior and Agriculture departments are also developing an internal metric by mid-December to track the efficiency and pace of permitting, a requirement of the bipartisan infrastructure law.

“We didn’t find any evidence that we needed to institute shot clocks or page limits,” said the official. “Now, of course, we know that with the Fiscal Responsibility Act, certain things are in the law, and we will obviously follow the law. But we think that these recommendations will help us meet those timelines.”

‘Social license’

Whether or not the nation can produce the minerals it needs to feed an EV boom will hinge on companies’ success in finding and developing deposits, said the official. Where the final report can make a big change is in ensuring that companies get a “social license” to operate and buy-in from local communities and tribes, the official said.

The administration official said there are some places that shouldn’t be mined, a nod to Interior Secretary Deb Haaland’s decision earlier this year to withdraw hundreds of thousands of acres in areas like Minnesota’s pristine Boundary Waters from mining and geothermal development.

But mining has moved forward in other areas successfully, said the official, pointing to the Eagle copper and nickel mine in Michigan, which enlisted an independent third party to monitor the environmental effects of the project. The official also highlighted BLM’s recent issuance of a final environmental impact statement for a vanadium mine in Nevada, saying it involved early tribal engagement and faced little pushback.

“How do we build the trust that you need in order for a mine to be accepted in an area?” asked the official. “There are some places that are not appropriate, some places that we’ll never want to mine, but there are a lot where if you just do it right, you can build that support.”

Still, the time it takes to permit a mine in the United States has emerged as a flashpoint on and off Capitol Hill as Republicans accuse the administration of looking abroad for EV battery metals while blocking off domestic production.

But the interagency working group found that agencies often don’t track that information or do so in a way that doesn’t easily allow for comparisons.

To address that, the working group drilled down on federal permitting data to gauge the length of environmental reviews under the nation’s bedrock law, the National Environmental Policy Act.

Upon analyzing EPA’s records, the interagency working group found that the Forest Service and Bureau of Land Management since 2000 have completed 33 new mine projects’ environmental impact statements. Almost half of the reviews were completed in four years, while the remainder were completed in less than five.

In addition, a close review of BLM data shows that the agency between fiscal 2013 and 2023 took an average of about three years to complete environmental impact statements, according to the report.

“While much can be improved about the U.S. mine permitting process, it should be noted that the total ‘gestation period’ — the length of time between the initiation of exploration for a mineral and the start of commercial production — appears to be roughly 16 years in the U.S., which is fairly consistent with the worldwide average,” authors of the report concluded.

The report’s authors rebuffed suggestions from industry that it takes seven to 10 years to permit a mine in the United States but only two to three years in other countries like Canada and Australia, a point that top Biden officials have also echoed in recent months.

“Although widely repeated and buttressed by a number of individual examples of mines that took exceptionally long to permit, no data was provided to support these numbers,” they wrote.

‘Common ground’

The administration is keenly aware that some of the proposals will face a challenging outlook in a divided Congress, but is also hoping there’s room for agreement and compromise.

“For legislation, I think there actually is some opening for this,” said the administration official, noting that the mining industry backs provisions around royalties, streamlining overlapping federal regulations at the Forest Service and BLM, and clarifying and increasing upfront consultation with tribes.

The report, for example, calls on Congress to enact so-called good Samaritan legislation that would facilitate the cleanup of abandoned mines by limiting liability for groups seeking to help on a voluntary basis.

Such a recommendation would align with past bipartisan legislation from Sen. Martin Heinrich (D-N.M.) and others, which would direct EPA to create a pilot program for cleanup of abandoned mine sites by outside groups. Heinrich is expected to reintroduce that bill, which has the backing of both environmental groups and NMA.

Other provisions are already facing pushback.

Creating a leasing system, for example, would require an overhaul of the current system that allows for exploration and extraction.

“The thing I think, quite frankly, is not tremendously likely is a leasing system,” said the official, adding that the concept of mine leasing was added as more of an “aspirational vision” for the way officials believe things could work better.

Under such a system, companies would possibly be required to secure a lease to occupy, explore and mine on public land, a move that NMA has criticized as a time-consuming process that would raise legal questions and throw into question how quickly the United States can advance mines and secure supply chains.

Democrats like Grijalva and Heinrich have for years pushed to create both a leasing system and the first-ever royalty for hardrock mines on public lands.

When asked how the administration plans to gain traction in a divided Congress, the official said there’s hopefully something everyone can support in the recommendations, but also acknowledged it won’t be easy.

“You add tribal engagement, at the same time creating a source of revenue to clean up abandoned mines,” he said. “I wouldn’t say it’s going to be easy, but certainly, you know, we’re definitely happy to have those conversations.”