The National Environmental Policy Act (NEPA) is the granddaddy of federal environmental law. It requires federal agencies to look before they leap into a decision that could harm our environment. This simple but essential process is threatened by a rider that Rep. Mark Amodei (R-Nev.) has attached to the House of Representatives’ version of the unrelated, “must pass” National Defense Authorization Act.
If it becomes law, the rider would allow federal agencies to forego NEPA compliance for virtually any type of mining operation based upon a bare assurance that the host state will address the environmental impacts of the project. States would not be required to offer any public process or otherwise provide meaningful public input regarding decisions about lands that are owned by all Americans.
Although Amodei’s rider purports to apply only to “critical minerals,” it defines that term so broadly as to encompass everything from sand and gravel operations to gold and silver mines. Also, the Critical and Strategic Materials Defense Stockpiling Act already identifies and stockpiles materials critical for national security. The free market for these minerals allows supply to meet demand. And, despite its attachment to the National Defense Authorization Act, Amodei’s rider has absolutely nothing to do with national defense.
So, this is not about critical minerals or defense. Rather, it is about exempting the mining industry from fundamental environmental and public oversight. What makes this most outrageous is that it is offered to an industry that the Environmental Protection Agency has labeled as the nation’s top toxic polluter.
The United States is one of the most mine-friendly countries in the world, as found by the Fraser Institute’s 2016 Annual Survey of Mining Companies. And a report from the nonpartisan U.S. Government Accountability Office concluded that mine permitting takes, on average, just two years — similar to other major developed countries. Delays in the process are primarily attributed to mining companies, not the government.
It is unsurprising that such a dangerous amendment came about as the result of 11th-hour sessions without observing House protocols designed to guarantee an opportunity for informed debate. Moreover, it was rushed to approval without a modicum of concern for ordinary citizens concerned about the significant environmental impacts of modern hardrock mining.
To be sure, mining law reform is desperately needed, but not to loosen the already weak programs that are supposed to protect our communities. The 1872 General Mining Law, which still governs public land mining, is a relic of manifest destiny policies adopted to promote western settlement. It has allowed mining companies, many from foreign countries, to extract billions of dollars of public land minerals without paying a dime in royalties to the owner of those minerals — the American people. And it has left a legacy of abandoned mines that have and will continue to cost the American people billions of dollars in clean-up costs.
We should not provide mining companies with a special exemption from a bedrock environmental law. Rather, we should require that they pay a fair return for the public land minerals that they take, and to hold them to account for the devastation they have caused — and are continuing to cause — to our public lands.
Sen. Tom Udall (D-N.M.) and Rep. Raul Grijalva (D-Ariz.) have offered bills that, at long last, would reform the antiquated General Mining Law and ensure a fair return to the public while protecting communities and the environment.
Minerals and mineral development are important to our economy, and indeed, even to our way of life. But we can accommodate mining, even here in the United States, without sacrificing bedrock principles. That means that when the government considers public land mining projects they should be designed to protect our environment and carried out in a manner consistent with our values.
Because it not only fails to achieve but actively undermines these goals, the Senate must reject the Amodei rider. Fortunately, the Senate version of the National Defense Authorization Act does not contain the rider. Before the NDAA is sent to the President for his signature to become law, the House and Senate versions of the bill must be reconciled into a single, final bill. When that occurs, Senate negotiators must require Amodei’s “critical minerals” rider be dropped from the final.
But Congress should follow up with public hearings on sensible mining law reform proposals, such as those offered by Sen. Udall and Rep. Grijalva. That’s a subject truly worthy of congressional debate.
Mark Squillace is a professor of law at the University of Colorado Law School and a member of the board of directors for Earthworks. He is the author or co-author of numerous articles and books on natural resources and environmental law.
NOTE: Before the Senate version of the NDAA was passed, an earlier version of this blog was published as an op-ed in The Hill.