In September, a working group of federal agencies delivered a set of recommendations on how to improve mining on public lands. The Interagency Working Group (IWG), which included the departments of the Interior, Agriculture, and Energy, as well as the Environmental Protection Agency and State Department, convened to address concerns raised by several Tribes, Indigenous-led organizations and conservation groups (including Earthworks) that federal mining policy failed to protect natural resources and cultural sites.
While these concerns are not new–we have been urging Congress to reform the archaic and inadequate 1872 Mining Law for decades–they have become urgent. The Biden administration and Congress are investing heavily in the transition to electric vehicles, the batteries for which require minerals like lithium and nickel. Meeting demand for these minerals using our existing mining laws would be a disaster.
The IWG’s recommendations ultimately fell short of what we believe is necessary to protect Indigenous rights and public lands resources in the clean energy transition. Yet, if fully implemented and enforced, the IWG did suggest a collection of helpful tools mining-impacted communities can use. Some may help agencies deny, modify, or delay the worst mining projects. Others promise better data, transparency, and standards.
The IWG’s primary recommendation is for Congress to update the 1872 Mining Law and phase in a leasing system. Every other nation in the world (and many states) issues leases for metals mining because they allow governments to collect royalties and clearly choose where mines do not belong. Earlier this year, Congressman Raul Grijalva (D-AZ) introduced the Clean Energy Minerals Reform Act of 2023 to do just that.
Unfortunately, the chances of this bill or any other to reform our mining laws in the current Congress is remote. Fortunately, the IWG also recommends changes to public lands mining rules that the Biden administration can implement without approval from Congress. They include codifying reforms announced during last year’s White House Tribal Nations Summit.
New public lands mining rules for Tribal cultural sites, sacred sites, and resources
According to investment research firm MSCI, the overwhelming majority of the underground reserves and resources of metals used for EV batteries are within 35 miles of Native American reservations. The current system allows many exploration mines to proceed without notice to Indigenous or non-Native communities. These mines threaten cultural sites, sacred sites, treaty-reserved rights, water, endangered species, and other resources.
The IWG proposes a couple of fixes. First, they specifically urge the Bureau of Land Management (BLM) and United States Forest Service (USFS) to require notice to Tribes and provide extra time for public review. Second, current public lands rules require mines meet specific performance standards in order to prevent “unnecessary or undue degradation” (UUD or “significant disturbances” in USFS parlance). Because those performance standards do not account for Tribal sites and resources, the IWG recommends a new performance standard specially tailored to protect them.
The IWG did not say exactly how mines will avoid undue degradation to Tribal resources, but does urge both BLM and USFS to update, coordinate, and define what UUD and “significant disturbances” mean. The public lands agencies are now considering proposing rules adding new protections for Tribal resources, clarifying when disturbances become significant, and when degradation becomes unnecessary or undue.
Policies and rules for better science, transparency, and supply chain standards
The mining rules petition also asked BLM to require operators to provide a climate change management plan. In response, “The IWG…recommends that the BLM and USFS amend their regulations to require the submission of a climate change adaptation plan as part of a plan of operations.” For transparency, the IWG also recommends publishing user-friendly mining data, including operations notices, claim staking information, geological data, financial assurances, reclamation plans, and compliance records on a publicly available website.
Most of the report focused on domestic public lands mining. However, it also discussed the global mineral supply chain, including reducing demand for new mines by growing the circular economy for metals. The IWG also notes various multilateral initiatives like the State Department’s Mineral Security Partnership and recommends third-party public audits against voluntary mining standards, particularly highlighting the Initiative for Responsible Mining Assurance (IRMA). Ultimately, the government’s choices among standards for mining, circularity, and human rights due diligence could become an express condition to receive public funding. For instance, IWG report reads:
(T)he Department of Defense could condition financial support under the Defense Production Act on adherence to specified voluntary standards, or DOE (Department of Energy) could do the same with loan authority. Conditioning Federal procurement on adherence to best practices, as is done for other products, should also be explored.
To be clear, a voluntary standard is no substitute for needed changes in domestic mining law and regulation. Yet, the federal government should use its purchasing power to favor circularity over new mines. To do so, the IWG recommends agencies incorporate conformity assessments across standards regimes and sectors so that mineral sourcing decisions follow government-wide best practices. For example, the Department of Commerce is now requesting information from the public for appropriate mineral supply chain standards.
The bottom line
The IWG report mostly limited its scope to public lands mining reforms and does the right thing by urging Congress to pass the Clean Energy Minerals Reform Act. Aside from Congress, our public lands agencies need to swiftly finalize the rules and policy updates the mining rules petition and IWG recommended. Even with reforms, we cannot mine our way out of the climate crisis. For this reason, the IWG also recognized that the preferred way to source the materials we need ultimately will come from circular economy standards.
