Low-Energy Fridays: One Mining Permitting Issue Congress Still Needs to Address
In 2022, a federal court ruling known as the Rosemont decision threw the future of hardrock mining in the United States for a loop.
Perhaps it goes without saying, but because mining is the process of extracting specific rocks (excuse me, minerals) from the ground, it also yields a lot of useless “waste” rock. In the past, mines could just dump waste rock; however, the Rosemont ruling changed this.
For context, “Rosemont” refers to the Arizona copper mine on which the court’s decision focused. Operators were expected to dump nearly two billion tons of waste rock in a national forest, which understandably led to blowback from conservation groups who sought to litigate Rosemont’s mining permit, arguing that it didn’t cover the dumping of waste rock.
The court agreed with the conservation groups. As odd as it seems that a mining permit wouldn’t cover basic activities related to mining, the courts ruled that the permit only covered activities on land that was part of the lode claim. This meant all activities must be confined to land with minerals beneath the surface.
This creates a challenge for mining because the industry has a larger footprint than just the mine itself—part of that footprint will include sites to dump waste rock. Confining dumping to land within the lode claim becomes especially challenging when the geometry of a mineral deposit makes the large production of waste rock unavoidable. This makes it impractical to limit dumping within a small footprint. Essentially, a normal part of hardrock mining—where to put the rocks coming out of the ground—is now far more complex.
Despite the obvious added difficulty, the court’s interpretation of the law was reasonable. Technically, the permit only covered activities on the lode claim, not waste rock dumping on surrounding land (though that’s long been the industry norm). But there’s a difference between policy outcomes and legal outcomes. Just because the law says one thing, it doesn’t mean the policy outcome is effective. In this case, the policy effect is to make it extraordinarily difficult to mine in the United States—a major problem since we need a lot more minerals than we currently produce to feed rising clean energy demand.
Policymakers are aware of this disconnect and attempting to devise a solution. One effort proposed in the Senate is the Energy Permitting Reform Act, which would address this issue by expanding the coverage of mining permits to “mill sites,” the areas where ancillary mining activities occur. This solution to the problems addressed by the Rosemont decision is appropriate because these activities should be included in the scoping required as part of issuing a permit.
The Mining Regulatory Clarity Act is a separate bill proposed in the U.S. House of Representatives that would codify into law the long-standing tradition of utilizing nearby public land for purposes ancillary to a mining permit. This would also address issues caused by the Rosemont decision and would likely have a similar permitting effect as the Energy Permitting Reform Act.
Realistically, whatever solution is settled upon ought to come from Congress. Sure, the incoming president could try to use national security-focused authority for mining to circumvent such requirements, but that would be a bad move. Perhaps he could craft new regulations or interpretations of permitting processes (though they could be challenged in court). Any of these solutions, though, are vulnerable to future reversal. Ultimately, Congress is the appropriate body to set permanent policy with respect to the Mining Act.
Whatever Congress does, policymakers must acknowledge the rising demand for mineral resources, whether produced domestically or abroad. There are also outstanding questions regarding the national security and human rights implications of forgoing domestic development in favor of imported resources. While national security and human rights are policy concerns that may lead to one mineral source being favored over another, a well-functioning mineral market enables market entry of new mines while addressing these issues.
The Rosemont decision undercuts natural market forces, creating an arbitrary barrier to permitting for mining. Not surprisingly, more government red tape can reduce supply and lead to higher costs. Making it harder to extract minerals domestically can also lead to greater reliance on foreign supply. The policy debate will likely focus on domestic conservation versus the economic and national security benefits of increasing domestic mineral supply.
Despite its significance, problems created by the Rosemont decision are relatively simple for Congress to address in a policy space. The outstanding question, though, is whether the political will to act exists, as mining issues tend to be politically fraught. Regardless, Americans will consume minerals. The question is where those minerals will come from and at what cost.