We dug into the details to find out how the Biden administration proposes to fix America’s broken mining laws
The Biden administration is recommending a suite of important reforms to the laws, regulations, and policies that govern mineral exploration and development on national public lands. The recommendations include: updating the General Mining Law of 1872 to bring mining law into the 21st century; creating a leasing system and collecting a royalty on hardrock minerals, similar to the current leasing system and royalty structure for oil and gas; and significantly improving when and how federal agencies and mining companies engage with Tribal nations and impacted communities when reviewing proposed mining projects.
These recommendations are the result of a process that began in February 2021 when President Biden signed Executive Order 14071, America’s Supply Chains, which tasked several federal agencies with reviewing vulnerabilities in supply chains for critical minerals and materials. The resulting report, released in June 2021, recommended that the Department of the Interior (DOI) establish and lead a working group of federal agencies and other stakeholders to “identify potential sites where critical minerals could be sustainably and responsibly produced and processed in the United States while adhering to the highest environmental, labor, community engagement, and sustainability standards.” In response, DOI established the Interagency Working Group on Mining Laws, Regulations, and Permitting (IWG).
Meanwhile, in September 2021, a coalition of Tribes, Indigenous organizations, and conservation organizations submitted a Petition for Rulemaking to the Bureau of Land Management (BLM), suggesting a number of needed improvements to the inadequate safeguards currently in place. In addition, the Bipartisan Infrastructure Law, signed into law in November 2021, directed the Interior and Agriculture departments to report to Congress on legislative and regulatory opportunities to accelerate permitting for mineral exploration and development. After months of work, including Tribal consultations, a series of information sessions, and a request for comments from the public, the IWG released its report and recommendations on September 12, 2023, which reflects the work of the IWG while also responding in part to the rulemaking petition and fulfilling the requirements of the Bipartisan Infrastructure Law.
The IWG report starts by acknowledging four “hard truths” the working group grappled with in the formulation of the report. First, already-announced policies, needed to meet the nation’s and the world’s climate goals, are driving an increase in demand for minerals and other materials required by the technologies that are currently available to transition away from fossil fuels. Second, the U.S. is not self-sufficient in many of these minerals and materials, and is dependent on other countries — including, in some cases, countries that are not considered allies — to supply these minerals and materials, a potential vulnerability. Third, the severely outdated General Mining Law of 1872 is a major obstacle to addressing and expediting domestic mineral supply chains. And finally, underinvestment in agency capacity and other resources has caused, and continues to cause, inefficiencies and delays in ramping up domestic mineral development and production.
In short, the report argues that our current legal and regulatory framework is inadequate to meet our current challenges and must be reformed. The report also emphasizes that future mineral development must not repeat the mistakes of the past, and cannot come at the expense of Tribes, communities, wildlife, and our shared land, air, and water. Both of these points were also made in the Center for Western Priorities’ Backyard Problems report, which highlights sites across the West that exemplify the impacts of extractive activities that continue to impact communities decades later. As the IWG report summarizes: “The American public must have confidence that the minerals and materials used in our electric vehicle batteries, smartphones, solar panels, and other technology are sourced under responsible social, environmental, and labor standards — and that the Federal government wisely stewards our shared natural resources for both Americans today and future generations.”
So how does the IWG suggest the nation begin to address these complex challenges?
In its report, the IWG makes a total 65 recommendations across six sub-categories. Of these 65 recommendations, 21 require legislative action by Congress, with an additional 9 that require some mix of legislative action along with regulatory or policy action by federal agencies. Importantly, this leaves 35 recommendations that can be implemented without Congress: eight recommendations require regulatory change, five recommendations require a mix of regulatory and policy change, and 22 recommendations can be made through agency policy without creating or amending any new regulations or laws.
Among the highlights:
- Permanently end patenting of federal lands (legislative): Under current law, a person who files a mining claim on federal public land can apply to convert that land to private land, for a fee. Congress has refused to provide funding to process these applications since 1994, placing an effective moratorium on this practice, but it could restart at any time if Congress decides to resume funding.
- Develop a leasing system (legislative): Instead of the current convoluted claim process, mineral exploration and development on public lands should be handled in the same way we currently handle oil and gas: through a system in which parcels are offered for lease through a transparent, competitive auction.
- Ban repeat bad actors (legislative): Among Western states, only Montana and Nevada have state-level laws in place that ban repeat offenders from continuing to develop new mining projects in that state. The IWG report recommends giving the BLM and the U.S. Forest Service the authority to prevent repeat bad actors from developing new mining projects on federally-managed public lands.
- Royalty on mineral production (legislative): Currently, mining companies do not compensate American taxpayers for the public resources they extract from public lands and sell for private profit. The IWG report recommends charging a royalty on minerals extracted, similar to the existing royalty for oil and gas extracted from public lands.
- Increase claim maintenance fees and create an escalating fee structure (legislative): Currently, anyone holding a mining claim can hold on to that claim without doing anything with it simply by paying a nominal annual fee. The IWG report recommends discouraging this practice, and incentivizing actually producing the minerals for which there is increasing demand, by increasing the annual fee and by having the fee increase over time if the claim holder is sitting on the claim and not conducting meaningful exploration or production. A similar structure is also being considered for oil and gas production through an ongoing oil and gas rulemaking.
- Create a fee on material displaced by mining operations to fund abandoned hardrock mine remediation (legislative): Ongoing pollution from legacy mines, in which no responsible party can be identified and made to pay, is a major problem across the West and the costs currently fall on American taxpayers. The IWG report proposes shifting some of these costs back to the mining industry by charging a reclamation fee that would go into a fund that could be used to address damaging pollution from these abandoned mines.
- Permitting improvements (legislative, regulatory, policy): The IWG report makes a variety of recommendations to improve the permitting process for mining projects, including prioritizing mine plans that maximize environmental and social best practices, and developing clear procedures for engaging stakeholders earlier in the process and in a more meaningful way.
- Transparency improvements (regulatory, policy): The IWG report recommends making more information, such as all proposed and ongoing mining projects and compliance performance records, available and easily accessible to the public.
- Working with Tribal nations (legislative, regulatory, policy): The IWG report makes a number of recommendations to improve consultation and coordination with Tribes. These include: requiring that Tribes be included earlier in project development and creating clear procedures for their inclusion throughout the process; providing funding to ensure Tribes can fully participate throughout the process; and providing additional protections for Tribal cultural sites, sacred sites, and resources.
- Enact Good Samaritan protections (legislative): Currently, there are organizations that are interested in undertaking reclamation and remediation of abandoned mines but are unwilling or unable to take on the liability associated with performing that work. Liability protection can be provided for this type of work, but great care must be taken to ensure that the intent is clearly captured and that mining companies or others cannot unfairly take advantage of liability protections that are not meant for them.
- Encourage remining and reprocessing of previously disturbed sites (legislative, policy): This is a commonsense recommendation to prioritize processing mine tailings and other already-mined areas first to recover any remaining minerals before tearing up intact lands and wildlife habitats.
- Prohibit mine operations that would result in the need for perpetual water treatment (legislative): In some cases, the impacts of a mining project on water in the area would be so drastic that ongoing water treatment would be needed forever — literally. Recognizing that some mining is simply not worth the damage to other resources, the IWG report recommends that projects needing water treatment in perpetuity should not be allowed to proceed.
- Strengthen review of mines left in extended non-operating status (regulatory, policy): Similar to the recommendation that claim maintenance fees escalate over time if no exploration or production is occurring, the report recommends that agencies more closely scrutinize mines that pause operations for long periods of time to discourage this practice.
- Strengthen requirements for financial assurance instruments (regulatory): This recommendation would ensure that bonds (conceptually similar to a security deposit put down by mining companies) are adequate to cover actual costs of any needed reclamation and remediation work, and that those costs are not passed on to taxpayers if the bond is inadequate to cover the full cost of cleanup, or if the company goes bankrupt.
Featured image: A mine in Nevada, Bureau of Land Management