Congress Makes Modest Headway on Mine Permitting Reform

The Current State of Mine Permitting

In June, President Biden signed the Fiscal Responsibility Act into law, advancing a bipartisan agreement to raise the debt ceiling that included modest and common-sense permitting reforms. The most important changes were the designation of a ‘lead agency’ authority for environmental reviews and right-sizing the scope, time, and even length of those reviews focusing on foreseeable environmental impacts rather than speculation. This means one federal agency will serve as the coordinator of all other federal agencies conducting environmental reviews and that they will all work to prepare a single environmental review document, which is focused on actual environmental impacts and mitigation. This makes so much sense that it leaves many wondering why it wasn’t done sooner.

President Biden said of the agreement, “No one got everything they wanted. But the American people got what they needed.” While there is some truth to this statement, the needs of the American people will not be met without further bipartisan agreements that address what we already know – the government shouldn’t need a decade or longer to assess and permit an energy project such as mining for nickel, lithium, cobalt, silver or gold.

While the permitting reforms signed into law as part of the Fiscal Responsibility Act are helpful, they are only one piece of the bureaucratic puzzle. Congress can finish the work by passing a comprehensive permitting reform package – bills like the Spur Permitting of Underdeveloped Resources (SPUR) Act and Revitalizing the Economy by Simplifying Timelines and Assuring Regulatory Transparency (RESTART) Act.

The Building American Energy Security Act of 2023

The Building American Energy Security Act of 2023 is designed to reform energy permitting to ensure American energy security and independence.

Key provisions:

1. Sets maximum timelines for permitting reviews, including two years for NEPA reviews for major projects and one year for lower-impact projects.
   1. If deadlines are missed, allows project sponsors to seek a court order directing agencies to finish reviews, with a deadline not to exceed 90 days from the court order.
   2. Requires a single inter-agency environmental review coordinated by lead agency and concurrent agency reviews for other authorizations.
   3. Establishes page limits on environmental documents.
   4. Expands eligibility for the Federal Permitting Improvement Steering Council (FPISC) streamlining programs to include smaller energy projects, critical minerals/mining and other programs.
   5. Improves the process for developing categorical exclusions under NEPA.
2. Addresses excessive litigation delays.
   1. Sets 150-day statute of limitations for court challenges.
   2. Requires reviewing courts to set litigation of energy project permits for expedited consideration.
   3. Requires that if a federal court remands or vacates a permit, the court must set and enforce a reasonable schedule and deadline, not to exceed 180 days, for the agency to act on remand.
   4. Requires random assignment of judges for all federal circuit courts.
   5. Requires public reporting and a public comment opportunity on consent decrees and settlement agreements seeking to compel agency action affecting energy and natural resources projects.

The SPUR Act

The SPUR Act is designed to expedite permitting, increase American energy production and enhance energy security. For domestic minerals mining, it offers solutions to cut through bureaucratic red tape and cumbersome reviews.

Key Provisions:

1. Sets timelines on the environmental review process.
   1. Requires an environmental impact statement be completed within two years and an environmental assessment be completed within one year.
   2. Authorizes a project sponsor to contract their own environmental reviews subject to federal agency approval to ensure the reviews are completed timely and withstand legal scrutiny.
2. Sets timelines on legal action and challenges.
   1. Requires lawsuits against permits and licenses for mining projects to be filed within 60 days.
3. Puts in place congressional checks on Executive land withdrawals.
   1. Requires Congress to pass a resolution of approval before the Secretary of Interior’s mineral withdrawals in excess of 5,000 acres can take effect.
   2. Prohibits the Secretary of Interior from imposing a moratorium on issuing leases, claims or permits for mining on federal lands.

The RESTART Act

The RESTART Act offers commonsense permitting and project review reforms to build in America, lower prices and protect the environment.

Key Provisions:

1. Streamlines environmental reviews.
   1. Requires agencies to prepare a single environmental review document with page limits, and designates a process for when NEPA applies.
   2. Implements strict deadlines for agencies to complete project review documents such environmental assessment (EA) and environmental impact statement (EIS).
   3. Allows projects to advance if an agency misses a deadline without threat of judicial review.
2. Sets timelines on legal action and challenges.
   1. Establishes time limits to prevent endless legal battles, requiring courts to process challenges and issue a final judgement within 180 days.
   2. Enacts a stricter statute of limitations for filing court challenges to NEPA documents.

A Long-Term Minerals Strategy

The minerals needed for advanced energy will come from somewhere, but we should be sourcing them domestically, where we know they will be mined in accordance with the world’s top environmental labor and safety standards, as stated by the president of the National Mining Association in testimony before the Senate. America cannot afford to spend another decade debating hardrock mine approvals. With each new announcement of a blocked mine or foreign source agreement, we are locking in our position of competitive weakness.