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The Senate Energy and Natural Resources committee is in recess this month. About a third of its members are either running for re-election or looking forward to retirement. One piece of their remaining business is to create an effective strategic and critical minerals policy. Prized for their electrical and chemical properties, these minerals are essential for many high-tech, military, and clean energy applications. And China, which produces some 90% of our domestic needs, has squeezed their production output creating an antsy marketplace for investors and a squabble in international trade circles.

What are they looking for?

The bill under consideration is the Critical Minerals Policy Act of 2012 (S. 1113/HR 4402). Earthworks opposes this bill because it burdens community groups seeking to add their voice to the permit review process. Section 115 spells this out with great specificity. This provision directs the Interior Department to meticulously examine every step in the mining permitting process. What are they looking for? Time intervals. The bill’s language says the Interior Secretary will submit a report that:

Evaluates the quantity of time typically required (including the range derived from minimum and maximum durations, mean, median, variance, and other statistical measures or representations) to complete each step (including…judicial review, applicant decisions, or State and local government involvement) associated with the development and processing of applications, operating plans, leases, licenses, permits, and other use authorizations…

The result is a harsher NEPA regime containing highly detailed, strict performance metrics designed to reduce permit times, streamline the process, and reduce opportunities for public input. This level of rigidity contrasts with the bill’s discussions of environmental protection that is seemingly relegated to a non-binding rhetorical afterthought. This approach is not unique. The Federal Land Policy and Management Act, the 1976 law governing Federal land use decisions, instructs the Interior Department against making decisions that cause “undue degradation” to the environment. Most advocates I know view the no undue degradation standard as feckless. And this fuels the criticism that HR 4402’s olive branch offerings of environmental protection mean little.

What is critical?

The other major problem with this bill is how the government determines which minerals are critical. The bill selects the so-called rare earth elements, numbers 57-71 on the periodic table, with a couple extra elements that share similar chemical properties. In addition, the Secretary of Interior selects up to nine additional metals, and after a few years, could pick more. I was tossing this idea around with some mining experts and one of them said, “Well, that’ll just about cover all mining.” We started to name some metals just off the top of our heads. Once we listed about seven or eight, we pretty much exhausted all the major target minerals out there. So, our fear is that some less scrupulous Interior Secretary could use this legislation as a back door way to streamline permitting of traditional hardrock mines.

Where do we go from here?

The conventional wisdom tells us that nothing will happen before the election. We have also heard conflicting reports that the Senate may try to hotline this bill any day now. The first attempt to do so a few weeks ago was held up by a couple of Senators preoccupied with a different bill. This newly amended critical minerals bill has added some funding sweeteners perhaps intended to soften that opposition. Either way, conferees will have to reconcile this bill with the much more terrible House version that passed back in July creating the likelihood that an already problematic policy might get even worse. There are some good pieces to this bill. I discuss some of them in an earlier post. The gist is that we do need a diversified supply chain of rare earth minerals. Focus on study, recycling, workforce training, international cooperation, and development of alternatives is essential. However, let us not fool ourselves in to thinking that removing basic environmental protections and truncating community input will increase Chinese exports or domestic production.