STATEMENT: Senate considers two drastically different approaches to hardrock mining

Dec 12, 2023

Denver—Today the Senate Energy and Natural Resources Committee’s Subcommittee on Public Lands, Forests, and Mining will hear testimony on two bills that would significantly alter how hardrock mining occurs and is regulated on our public lands: the Clean Energy Minerals Reform Act, a long overdue update of the nation’s mining laws which would bring hardrock mining into the 21st century, and the Mining Regulatory Clarity Act, which would be worse than the Civil War-era status quo in its giveaway of the nations’ public lands for mining companies to use as free trash dumps.

The Clean Energy Minerals Reform Act, introduced by Senator Martin Heinrich of New Mexico, would make several urgently needed and long overdue reforms to the General Mining Law of 1872, which continues to govern hardrock mining virtually unchanged since its passage more than 150 years ago. The reforms include: creating a leasing system for hardrock mining similar to the system that already exists for oil and gas; requiring, for the first time, that mining companies pay a royalty to taxpayers for minerals extracted from public lands; and charging companies a fee that will fund reclamation of abandoned mines. Several of the reforms proposed in this legislation were also identified by a federal Interagency Working Group on Mining Laws, Regulations, and Permitting. Following Tribal consultations, a series of information sessions, and a request for comments from the public, the working group released a report in September 2023 outlining a number of common-sense reforms and updates to bring mining into the 21st century.

By contrast, the Mining Regulatory Clarity Act, introduced by Senator Catherine Cortez Masto of Nevada and Senator Jim Risch of Idaho, would allow mining companies to dump mine tailings and other waste on neighboring public lands where the company has a mining claim but has not proven that valuable minerals exist. For the past 150 years, mining companies have been accustomed to dumping their mine waste on public land based on a loose interpretation of the General Mining Law of 1872, which held that if a mining company had staked a mining claim on public lands, it could dump mine waste on adjacent public lands. However, recent court decisions have updated this interpretation, finding that a mining company must prove that valuable minerals exist on a claim before it can occupy that land by dumping waste on it and that federal agencies must verify the existence of valuable minerals rather than taking the company’s word for it. The Mining Regulatory Clarity Act seeks to enshrine the previous pro-industry interpretation in statute, which would be worse than the already-outdated law currently in effect and would undo the recent interpretation which holds both companies and government agencies accountable.

The Center for Western Priorities released the following statement from Policy Director Rachael Hamby:

“At this critical juncture in how our nation chooses to face the worsening global climate crisis, the last thing we need is to double down on obsolete policies that are relics of a bygone era. Westerners have been living with the consequences of inadequate safeguards for the past 150 years and they want to see these safeguards updated to better protect communities and landscapes from irresponsible mining. The clean energy transition is not an excuse to take shortcuts around our bedrock environmental protections, and should not come at the expense of the health of Western communities and landscapes.”

The historical and ongoing harm to Western communities and landscapes over the past 150 years of hardrock mining under the General Mining Law of 1872 clearly demonstrates that our laws and safeguards need to be updated to reflect lessons learned. In August 2023 the Center for Western Priorities released Backyard Problems, a report that highlights twelve sites around the West where the impacts of past mining and other extractive activities are still wreaking havoc on the environment, in some cases decades after the original project operator walked away.

The Center for Western Priorities’ Winning the West poll, conducted in July 2023, surveyed voters in Arizona, Colorado, and Nevada on their concerns around mining on public lands. When asked how important it is to update the General Mining Law of 1872, 84 percent of respondents said it’s important, with 36 percent indicating it’s very important. 68 percent of respondents prefer an approach that includes modernizing our mining laws, preventing companies from dumping mining waste on public lands, and requiring companies to pay royalties on the minerals they extract.

Furthermore, voters aren’t fooled by the mining industry’s assertions that current laws and regulations are sufficient and that modernizing our laws and regulations would make us more dependent on foreign countries. In the July 2023 Winning the West poll, almost two-thirds of voters—63 percent—understand that the reason the U.S. hasn’t updated the General Mining Law of 1872 is that the mining industry has spent millions of dollars lobbying decision-makers and donating to political campaigns. In just the first three quarters of 2023, the National Mining Association has spent nearly $2 million on federal lobbying, according to the Center for Responsive Politics. Individual mining companies also spend heavily on federal lobbying; Rio Tinto Group, First Quantum Minerals, and Antofagasta, the top three mining industry spenders on federal lobbying, spent a combined total of $2,540,000 in the first three quarters of 2023. Senators Cortez Masto and Risch, the sponsors of the Mining Regulatory Clarity Act, have received $84,097 and $131,973, respectively, over the course of their careers so far, according to the Center for Responsive Politics.

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Feature image: An open pit mine in Nevada, Bureau of Land Management