Simply put, the U.S. needs to find a path forward that expands domestic mining to accomplish its energy transition goals.  Of course, this expansion of U.S. mining will need to be accomplished in a way that protects environmental and natural resources and takes account of social considerations, particularly with respect to Indigenous peoples.  Mine developers and operators understand the relationship between expanding critical mineral supplies and mining responsibly to secure and maintain the requisite social license – both objectives must be achieved simultaneously.

It is not clear, however, that regulatory agencies in the U.S. are ready to address these strategically important mining and energy considerations with the speed and predictability necessary to solve growing supply-chain risks. Two recent decisions in two U.S. mining projects illustrate the situation.

NorthMet Mine

Poly Met Mining, Inc. (now NewRange Copper Nickel LLC) received all necessary state and federal permits – after over ten years of regulatory reviews – in late 2018 and early 2019 for its NorthMet mining project. The permits authorized the company to construct the first copper-nickel mine in Minnesota, which is host to one of the world’s largest undeveloped copper, nickel, and platinum group metal regions. Predictably, litigation followed, but heading into summer 2023 it appeared there was a viable path forward .[2]

Then, on June 6, 2023, over four years after issuing a Clean Water Act (“CWA”) Section 404 permit, the U.S. Army Corps of Engineers (“USACE”) revoked the permit based on objections that the project, which includes cleaning up legacy mining conditions from a prior owner, would create pollution that violates tribal water quality standards at a reservation more than one hundred miles downstream.  The Corps’ revocation letter asserted its permit did not “ensure compliance with the [tribal] water quality requirements” of the Fond du Lac Band of Lake Superior Chippewa.[3] 

The agency’s decision memorandum invoked this same legal standard, and found it was not met because there were “uncertainties” about the mine’s potential impacts due to conflicting scientific evidence in the record.[4]  The decision memorandum also asserted there were foreseeable pollution discharges “unaccounted for” in the various state and federal permits.

The USACE memorandum, however, did not identify any specific errors in the Minnesota Pollution Control Agency’s CWA 401 certification that concluded the NorthMet project would meet all applicable water quality standards, including those of the downstream Fond du Lac Band.[5] Instead, the Corps’ decision essentially summarized the competing testimony in the record, and then observed the agency was “not able to resolve the scientific differences of opinion that have been presented.”  Given the seeming inevitability of such scientific disagreement in most mining projects, this reluctance to weigh and resolve the merits of environmental questions, if it were generally adopted by permitting authorities, could effectively stop many projects in their tracks.

Thacker Pass Mine

Lithium Nevada Corporation (“LNC”) secured state and federal permits and other regulatory approvals in 2021-2022 for its Thacker Pass lithium mining project in Nevada.  Environmental and tribal groups have opposed the project, including through litigation in federal courts.

In February 2023, the federal district court in Nevada rejected arguments against the project advanced under various environmental and consultation laws. The court, however, remanded one issue to the U.S. Bureau of Land Management (“BLM”) because the agency did not make the necessary determination that LNC held valid federal mining claims for all its properties, particularly the proposed sites for certain solid waste infrastructure.[6]  

Just four months later, the Solicitor’s Office of the U.S. Department of Interior issued an opinion adopting a new evidentiary standard for addressing the validity of mining claims under certain federal laws.  The new standard required only that the administrative record contain “at least some evidence of sufficient . . . mineralization,” which left BLM with considerable discretion to evaluate the facts relating to claim validity.[7]

BLM applied the new standard in Thacker Pass to find that there was indeed sufficient evidence in the record to prove the validity of most – but not all –  of LNC’s claims.  Notably, the cited evidence was well below that which typically would be required in a conventional validity-determination review under applicable mining statutes and regulations.[8]

Implications

While the legal issues presented in these two projects are very different, both  reveal an important consideration that has to be taken into account in connection with the domestic supply of critical minerals in the U.S. Specifically, agencies and courts need to become comfortable with the fact that basically all major mining projects in the U.S. will be fiercely contested, and it is effectively impossible to eliminate every theoretical risk associated with a mining project.

Challengers to the NorthMet and Thacker Pass projects presented predictable arguments under various environmental, consultation, and mining laws, as well as the typical conflicting positions of experts on potential project impacts. The agencies in Thacker Pass sorted through the conflicting evidence relatively quickly to make their decisions without applying unrealistic legal requirements to the relevant engineering and scientific data.

In NorthMet, in contrast, the federal agencies imposed extreme legal standards to engineering and scientific matters – the Corps and EPA effectively required an advance guarantee, with no uncertainties or qualifications, that there would never be the possibility of any violations of water quality standards. Then the federal agencies compounded that position by not seriously addressing the extensive pollution reduction and control measures created by the company and state agencies, and largely ignoring the substantial evidence assembled by the state authorities explaining why they believed no water quality violations would occur.

It is appropriate, and indeed necessary, to require robust, defensible engineering and scientific evidence that U.S. mining projects will not adversely affect environmental and natural resources.  Demanding absolute certainty that no adverse effects will ever occur is neither technically valid nor sound policy, however. If the U.S. intends to achieve its stated objectives for a clean energy transition, realistic approaches to the legal standards for evaluating scientific disputes and risks in mine permitting and litigation will need to be employed.

[1]The Aspen Institute, Energy & Env. Program, Spring 2023, A Critical Minerals Policy for the United States at 7.

[2] Decisions of the  Minnesota appellate courts have remanded two state permits for the NorthMet project to the issuing agencies, but those decisions specifically identified limited issues to be addressed through established administrative procedures.

[3] U.S. Army Corps of Engineers, Revocation Letter (June 6, 2023).

[4] U.S. Army Corps of Engineers, Record of Decision (June 6, 2023).

[5] The Corps’ decision memorandum pointed out that MPCA’s permits did not address the Band’s water quality standard for specific conductance, but acknowledged that the Band adopted the standard after MPCA had issued its permits and 401 certification.  The Corps did not consider whether the new specific conductance standard could be addressed when the NPDES/SDS permit is up for renewal, which was scheduled for later this year.

[6] Bartell Ranch LLC v. McCollough, 2023 WL1782343 (D. Nev. Feb. 6. 2023).

[7] U.S. Dep’t of Interior, Office of Solicitor, Memorandum M-37077 (May 16, 2023) (emphasis added)..

[8] U.S. Dep’t of Interior, Bur. of Land Mgmt., Thacker Pass Project, Plan of Op. and Recl. Permit (May 16, 2023).

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