Report Calls for Modernizing Hardrock Mining

The Biden administration published its long-anticipated report today on the state of domestic mining laws and regulations. It is the result of a Department of the Interior (DOI)-led Interagency Working Group formed in early 2022 to respond to Executive Order 14017 and a comprehensive rulemaking petition from environmental groups, including NRDC. 

The timing could not be better. The transition to an electrified economy continues to accelerate, driving new demand for materials and minerals that, to a certain degree, will require new mining both domestically and internationally. Meanwhile, there are signs everywhere of a climate system breakdown that is already straining our abilities to manage and adapt to the growing risks and dangers created by climate change. Indeed, as the first global stock-take of progress toward the 2015 Paris Agreement goals recently showed: we need to be doing far more, far faster to drive immediate and continual deep cuts in global emissions. 

But to the extent there’s a need for more mining, it has to happen within a legal and regulatory framework that avoids creating new environmental harms or saddling communities—especially Indigenous communities and nations—with a new round of environmental burdens. In the U.S., the regressive, colonial-minded 1872 Mining Law cannot form the basis of a modern mining renaissance. But so long as that law is on the books, regulatory changes around the margins are critical. 

In the report, the Biden administration recognizes this tension between needing new legislation and needing new regulatory guardrails as soon as possible. It lays out 65 recommendations, including 30 suggested changes to the 1872 Mining Law. Among those changes, here are the sort of fundamental legislative shifts that would finally bring U.S. domestic mining out of the 19^th Century: 

• Eliminating patenting—curtailed since the 1990s, this process allows the government to transfer title of all minerals and surface resources to a mining claimant, thereby selling off public lands to mining companies. 
• Applying a royalty to extracted minerals—currently, companies producing valuable minerals from federal lands pay nothing to taxpayers in exchange for the right to mine on federal public lands. The government charges royalties of some form on all other types of resources extracted from federal public lands. 
• Dedicating certain revenues to address mining impacts—mining has left a significant and lasting legacy across much the western U.S. Forty percent of the headwaters of western watersheds are polluted by mining, at least 140,000 abandoned mine features are known to persist on the landscape, and ongoing mining is the single largest source of toxic pollution in the U.S. At the same time, funding is needed to help communities address future social, environmental, and economic impacts associated with new mining. 
• Developing a leasing system—mining on most federal lands is governed by a claim system, whereby lands potentially open to mining can be claimed using a Gold Rush-era system of driving stakes into the ground and paying a nominal fee for the right to potentially develop a mine. A leasing system would allow land managers to improve siting and permitting and help to drive development toward areas with the fewest possible environmental, natural resource, cultural, and socioeconomic conflicts. 
• Disincentivizing speculative claims—under the claim system, there is essentially no current limit on speculation and the system can be abused to block other valuable and higher uses of public lands. 

Congress must pass these needed reforms, but in the meantime, the administration’s report identifies regulatory actions agencies can take today to significantly improve mine permitting and performance. Specifically, it suggests: 

• Maximizing coordination between the mine proponent and all relevant agencies at the federal, Tribal, and state levels. 

• Maximizing engagement with Tribes and communities as early in the process as possible to ensure that their views and concerns are understood and considered throughout the permitting process. 
• Maximizing benefits to frontline communities of new mines by requiring the negotiation of community and Tribal benefit agreements. 
• Increasing transparency in mine operations by creating a public portal for accessing monitoring and enforcement data and giving the public mechanisms to submit concerns that may require investigation and enforcement. 
• Clarifying permitting requirements by establishing baseline data requirements that mine proponents must provide to all relevant regulators to ensure an efficient and smooth permitting process. 

This country needs a pathway to right the historic wrongs of mining and chart a course for a modern, environmentally, and culturally responsible mining industry.  

What does that mean in practice? It means siting mines away from critical ecosystems, avoiding culturally sensitive areas, and designing mining plans that minimize the use of and impact on increasingly scarce water resources. It means engaging with Tribal governments and communities, frontline communities, and other stakeholders early and often and adjusting mining plans and designs based on their feedback and concerns. And it means there are enforcement mechanisms and funds available to prevent environmental harms and clean up mine sites so that we avoid another century or more of newly contaminated lands and waters. 

That may sound like a sea-change, but a lot of the work has already been done. Representative Raul Grijalva and Senator Martin Heinrich have written legislation that reforms the 1872 Mining Law and achieves all the goals above. And federal land managers have a lot of tools at their disposal to permit new mines efficiently, transparently, and responsibly. Today’s report weaves many of these pieces together. It’s a rational approach to modernizing mining in the U.S.—an approach we desperately need as a clean energy-driven mining resurgence builds across the country and around the world.