On Wednesday, the House of Representatives passed HR 761, the poorly titled National Strategic and Critical Minerals Production Act of 2013. Every member of the House Majority voted for it joined by fourteen House Democrats.
Smoke and Mirrors
Divorcing policy substance from pretext, HR 761 is not at all about so-called strategic minerals. The bill is about limiting community consent and shortcutting environmental protections. It does so by subverting the time-tested outreach and environmental review process outlined in the National Environmental Policy Act (NEPA). For more than forty years, NEPA has for everyone involved- regulators, miners, concerned citizens, and investors- a predictable process that provides market certainty, stakeholder participation, transparency and the consideration of alternatives.
Why the Delay?
Effectively ending NEPA is not the only problem with this bill. HR 761 sets an arbitrary deadline of 30 months to issue permits. Of course, the Federal Government, on average, only takes around 36 months anyway, very close to the window HR 761 mandates. Any excess delay occurs for two reasons. First, NEPA has caught on, and many states have instituted similar processes to protect their own citizens. Despite any beef the House Majority may have with the Feds, how states permit mines is not part of their agenda.
The mining industry itself creates most delays in permitting by dragging their feet. Sometimes this happens for perfectly legitimate reasons. Maybe a mining company decides to place the tailings pile in one location instead of another. Or they may change their minds about precisely where or how much to dig. Or maybe the price of the target mineral goes up or down. Each time mining permit applicants change their minds about a plan of operations, they need to update the regulator. Some of these decisions are extremely complicated requiring sophisticated and time consuming scientific, engineering, or other technical expertise. Performing this analysis completely and accurately accounts for most delays.
When Does a Mineral Become Critical?
Dwarfing this misdiagnosis in permit delay is the sheer breadth of HR 761’s application. Defining strategic and critical minerals as just about anything dug out of the ground fails to distinguish the so-called rare earth elements from ordinary sand and gravel. Calling critical anything extracted for national defense, energy production, health care, or domestic infrastructure distracts from serious consideration of policies that could really address our nation’s mineral needs. So even if a natural disaster creates a premium for certain building materials, this does not mean the country has a choke in the gravel supply chain. We’re not running out of sand. Neither is there suddenly an earring shortage in this country.
Fortunately, HR 761 is not likely to become law. The Senate refused to consider similar legislation last year and the Obama Administration issued a statement opposing it. What has changed since last year is that the level of support for this bill has dropped slightly. Everyone benefits from a workable and efficient process that seeks community involvement. NEPA accomplishes this already. Strengthening community involvement, researching alternatives, and reforming the 1872 Mining Law (HR 2467) will ensure we never run low on our irreplaceable natural and mineral resources.
