A federal judge in Nevada on Monday upheld the federal government’s approval of the largest proposed lithium mine in the nation, dismissing arguments that the Thacker Pass project would degrade nearby aquifers, air quality, and habitat for the imperiled greater sage grouse.
But U.S. District Judge Miranda Du in her ruling also asked the Bureau of Land Management to revisit a portion of its environmental analysis. The agency violated federal law by failing to validate that developer Lithium Americas Corp. has the rights to dump waste and tailings on about 1,300 acres at the site in Humboldt County, the judge concluded.
While the court’s decision is a setback for environmental groups, nearby Indigenous communities and a local rancher opposed to the project, it marks a significant milestone for the mine, which would be built on 5,700 acres of federal land in north Nevada.
Lithium Americas in a statement hailed the ruling as “favorable” and said it confirms that the permitting process was conducted thoroughly and responsibly. The company has said it wants to begin construction this year.
“The favorable ruling leaves in place the final regulatory approval needed in moving Thacker Pass into construction,” said Jonathan Evans, the company’s president and CEO.
Thacker Pass could help the United States transition away from gasoline-powered cars by giving automakers a domestic supply of lithium carbonate chemicals needed for electric vehicle batteries. Lithium is a critical component in EV batteries and renewable technologies, and demand is expected to triple in coming years.
Just last month, General Motors Co. announced it was investing $650 million in the project if it survived the lawsuit, marking the largest single investment to date by an automaker in a lithium mining project. Developers have estimated that the mine could produce enough lithium to support the production of as many as 1 million EVs annually (Greenwire, Jan. 31).
Currently, there is only one lithium mine operating in the United States.
But the Thacker Pass project has faced multiple challenges after receiving a “record of decision” from BLM in 2020 under the Trump administration, arguments that Du acknowledged and addressed in her order.
“While this case encapsulates the tensions among competing interests and policy goals, this order does not somehow pick a winner based on policy considerations,” she wrote. “That is not this Court’s role.”
Instead, Du said, the court’s role is “to carefully apply the applicable standard of judicial review” to consider BLM’s decision, an agency that is “generally entitled to deference.”
Du remanded — but did not vacate — BLM’s so-called record of decision, saying the records suggest the agency could address the lack of a mining rights validity determination.
“The Court will remand for BLM to fix the error — to determine whether Lithium Nevada possesses valid rights to the waste dump and mine tailings land it intends to use for the Project,” she wrote.
BLM did not immediately respond to a request for comment.
Parallels to Rosemont
The order highlights an ongoing legal debate over the reach of the 1872 General Mining Act and the responsibility federal agencies and developers face when it comes to handling and dumping mine waste and tailings.
At the center of the argument is BLM’s approval of the Thacker Pass mine in 2020 upon conducting an environmental review under the National Environmental Policy Act and the Federal Land Policy and Management Act.
In months that followed, environmental groups, an Orovada rancher, and the Reno-Sparks Indian Colony and Burns Paiute Tribe sued and argued that the agency had failed to analyze the project’s effect on the environment. They also argued that BLM failed to fully consult Indigenous tribes.
Du in her order found that the groups were persuasive in arguing that BLM had violated federal law by failing to make a “mining rights validity determination” around Lithium Americas Corp.’s plan to dump waste on 1,300 acres before issuing a record of decision.
Specifically, environmental groups including the Western Watersheds Project, WildLands Defense, Great Basin Resource Watch, and Basin and Range Watch based their arguments in part on a precedent-setting case in Arizona tied to the open-pit Rosemont copper mine near Tucson in the Coronado National Forest and Santa Rita Mountains.
In the Rosemont case, the 9th U.S. Circuit Court of Appeals last year reiterated that the 1872 law requires a company to discover valuable minerals before permanently occupying any land — and that includes waste dumps and tailing piles.
The appeals court’s decision ultimately scrapped the Forest Service’s approval for developers of the Rosemont mine to store waste rock on nearly 2,500 acres of national forest lands where no mill sites have been built and no valuable minerals are located, sending the decision back to the agency (Greenwire, May 13, 2022).
Du in her order identified parallels between the Rosemont case and that of Thacker Pass.
“Rosemont is about a copper mine on Forest Service land, not a lithium mine on BLM land,” she wrote. “But the language of the regulations at issue in Rosemont is so similar to the language of the regulations at issue here, and the reasoning of Rosemont otherwise so applicable to these facts, that the Court finds Rosemont controlling.”
‘Green light’ or ‘illegal’?
Lithium Americas in its statement noted that the court remanded the decision to BLM to decide whether the company possesses adequate mining-claim rights to the lands for waste storage and tailings.
The company also said it “intends to work closely with the BLM to complete the required follow-up.”
But Greta Anderson, deputy director of the Western Watersheds Project, said in an email that her group is still reviewing the decision and that it would be “premature” for Lithium Nevada to consider this a “green light.”
“The court properly found the Bureau’s decision was unlawful and so moving forward with the mine would still be illegal,” said Anderson. “There’s nothing ‘green’ about species extinction, groundwater contamination, devastation of important Indigenous sites, and habitat loss.”
Anderson vowed to continue working with tribes to protect the land they call Peehee Mu’huh, or “rotten moon.” Some local tribal members have said they are direct descendants of Ox Sam, believed to be one of the few survivors of a 1865 massacre of Native Americans at that location (Greenwire, Jan. 27, 2022).
Du in 2021 said there wasn’t enough evidence to support tribal contentions that the mine will be built at the massacre site (Greenwire, Nov. 12, 2021).
In her latest ruling, Du dismissed other arguments raised by the mine opponents, including concerns about groundwater aquifers and air quality. She noted that the company under BLM’s record of decision will not be allowed to violate state water quality standards or federal and state air quality standards.
Du also dismissed environmental groups’ assertions about there being a lack of data around sage grouse habitat as “simply inaccurate,” noting that BLM had conducted baseline surveys and included those findings in its environmental review, as it did for springsnails and pronghorn.
She also concluded that the agency had not violated federal law by not consulting two tribes that claim a connection to the land — the Reno-Sparks Indian Colony, or RSIC, and the Burns Paiute Tribe in Oregon — before issuing the record of decision. The Fort McDermitt Paiute and Shoshone Tribe, which is located about 40 miles away from the project, has not joined the lawsuit, and signed a “community benefits agreement” with Lithium Americas, according to the company.
“BLM made a reasonable decision not to consult RSIC or Burns Paiute Tribe on the Project before issuing the ROD,” she wrote. “BLM did not violate [the National Historic Preservation Act] in making that decision.”