United States: Separate Bills In The House And Senate Take Aim At The Often Protracted Permitting Process For Critical Minerals

Last Updated: May 5 2015
Article by Amy J. McMaster and Douglas H. Green

On April 22, Congressman Mark Amodei, R-Nevada, along with 29 original cosponsors, introduced the National Strategic and Critical Minerals Production Act of 2015, which seeks to streamline the critical mineral permitting process in order to achieve timely mine permit decisions, thereby increasing domestic production and reducing reliance on foreign critical mineral imports. On March 26, Senator Lisa Murkowski, R-Alaska, introduced the American Mineral Security Act of 2015, with similar goals and objectives. Both bills are primarily directed at federal permitting decisions by the Secretary of the Interior (acting through the Director of the Bureau of Land Management) and the Secretary of Agriculture (acting through the Director of the Forest Service), i.e., the nation's largest landowners.

Although Senator Murkowski and Representative Amodei have introduced substantially similar legislation in previous Congresses, the issue seems to be gaining (some) traction. CBS News' 60 Minutes recently highlighted the importance of critical minerals to the United States' growth and security. And, unlike in the previous two Congresses, when Representative Amodei's bill passed the House but stalled in the Senate, Republicans now control the Senate as well. Still, the question remains, is the current concern over the future supply of critical minerals in the U.S. enough to actually prompt meaningful mining legislation reform?

Why Does This Matter?

Although the U.S. was formerly a major producer of critical minerals, it has become dependent on an increasing number of rare earth element imports, which risks supply disruptions outside of U.S control. The seven to ten years it takes (on average) to permit a new mine in the United States is a major impediment to mining companies contemplating new or expanded operations. Proponents of these bills (and other similar bills introduced in past Congressional sessions) believe that expediting the permitting process for critical minerals would increase the amount of critical minerals produced domestically, thereby reducing U.S. dependence on foreign suppliers and increasing U.S. jobs and spending, among other benefits.

While there is no U.S. definition of critical minerals, which are also colloquially referred to as rare earths, they are typically considered to be those minerals that are crucial to the functioning of a vital sector of the economy or important to the nation's defense system. While these bills leave it to the Administration to select the minerals covered, critical minerals often include the following: antimony, beryllium, cobalt, fluorspar, gallium, germanium, graphite, indium, magnesium, niobium, platinum group metals, rare earths, tantalum, and tungsten.

Maximizing Efficiency and Effectiveness – Proposed Steps

As with their prior bills, Senator Murkowski and Representative Amodei's bills do not list the minerals that would qualify as "critical." Rather, Senator Murkowski's bill requires the Secretary of the Interior to develop a methodology for identifying critical minerals based on certain criteria, while Representative Amodei's bill simply provides the criteria to be used in identifying which minerals are "critical." Both bills would also apply Executive Order 13604, "Improving Performance of Federal Permitting and Review of Infrastructure Projects," to all critical mineral manufacturing projects, such that they would be considered infrastructure projects.

Representative Amodei's bill includes a number of steps designed to reduce the current seven-to-ten-year average permitting timeframe. This includes an option for the lead agency to find that the National Environmental Policy Act (NEPA) does not apply if "any State and or Federal agency acting pursuant to State or Federal (or both) statutory or procedural authorities, has addressed or will address" six factors identified in the bill: environmental impact, adverse effects, alternatives, local long and short-term uses of the environment, irreversible and irretrievable resources, and public participation. Even if NEPA applies, Representative Amodei's bill sets a maximum of 30 months for the lead agency to complete all steps of the permitting process, and also attempts to expedite any judicial review of the permitting decision by setting time limits on the litigation as well.

Senator Murkowski's bill also contains measures designed to "improve the quality and timeliness of decisions," most of which are carried over from her 2013 bill, although some with additional details provided. These include a requirement that the Secretary of the Interior and the Secretary of Agriculture provide "demonstrable improvements in the performance of Federal permitting and review processes, including lower costs, more timely decisions, and a healthier and cleaner environment." They must also generate a report that "quantifies the amount of time typically required to complete each step associated with the development and processing of applications, operating plans, leases, licenses, permits, and other use authorizations for critical mineral-related activities on Federal land." It seems the latter could be helpful in identifying the "long poles" in the respective Secretaries' permitting processes, enabling both the applicant and the regulators to focus efforts on improving efficiency in those areas.

Reducing Delay and Expediting Mine Permit Decisions without New Legislation – Self-Help Tools for the Mining Industry

Although these bills are not yet (and may never be) law, many of the steps listed to "improve the quality and timeliness of decisions" can be undertaken by an Applicant independent of (or in conjunction with) the reviewing Agency – such as reaching out to stakeholders and project opponents early in the permitting process to develop credibility and resolve potential issues before they manifest themselves. Venable has worked with mining companies to use multiple strategies to obtain timely mine permitting.

Setting timelines and adhering to those timelines is another area where an active and engaged Applicant can help the reviewing Agency stay on track with its permitting goals and objectives. The same is true of early and active consultation with State, local, and Native American tribal governments to avoid duplication of effort. While an Applicant's role cannot supplant that of the reviewing agency, an Applicant's efforts may reduce the ultimate burden on the Agency, thereby expediting the permit process. An Applicant also should not hesitate to suggest that regulators adopt processes that have proven effective in other permit applications, particularly those where permits have been issued well short of the usual seven-to-ten-year permitting timeframe.

Adequate staffing, highly credible technical expertise, and proactive coordination are as important on the Applicant's side as on the reviewing Agency's. Developing information, aligning data with the environmental regulatory requirements, and coordinating these efforts across multiple federal and state agencies to obtain a successful and timely result requires special expertise and close cooperation between the Applicant, consultants, and counsel as they work with the agencies to get their permit application expeditiously approved. Applicants should take care to assemble the right permitting team before beginning the application process, and should not hesitate to add bench strength to support areas that get bogged down. Earning and maintaining the intellectual respect of the reviewing Agency (and the third-party contractor for NEPA) is critical to a timely permit decision.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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