The National Strategic and Critical Minerals Production Act
of 2015 (NSCMPA), seeking to address prolonged delays in the
permitting of mines in the US, passed the
country’s House of Representatives on 22 October
2015 by a vote of 254 to 177.
This is the fourth such bill to make its way through the
lower house in the past three Congresses and with the mining
and environmental lobbies still at loggerheads, it is far from
guaranteed that the legislation will pass the Senate.
A report entitled "The impact of permit delays on the United
States mining industry" by SNL Metals and Mining found that of
all developed nations, "the US is afflicted most severely by
protracted delays in obtaining mining permits". According to
the study, it takes an average of seven-to-10 years to obtain
permits to commence operations in the US, compared to two years
in Canada and Australia.
The problem is one of bureaucracy, rather than of higher
environmental standards in the US, Katie Sweeney, general
counsel at the US National Mining Association (NMA), told
IM. "What we’re looking for is
more efficiency," she said.
The SNL paper also found that the US accounts for just 7% of
worldwide spending on mineral exploration, "despite being home
to abundant mineral resources" and that a typical mining
project loses more than one third of its value as a result of
bureaucratic delays in receiving the permits needed to begin
A separate study, carried out by market research firm
Edelman Berland, found that of 400 manufacturing executives
surveyed, three in four believed the country’s
existing permitting process to be too slow. "In the past 35
years, permitting delays have gotten worse," Timothy McCrum, a
natural resources lawyer and partner at DC mining law firm
Crowell and Moring, told IM, "the length and
depth of the studies carried out had increased."
Laura Skaer, executive director of the American Exploration
and Mining Association, described the process as "paralysis by
The NSCMPA aims to expedite the permitting process in a
number of ways. It sets a 30-month timeframe in which the
permitting review process must be completed (this can then be
extended by mutual agreement). "It tries to give predictability
and certainty. You have 30 months to make a decision. It
doesn’t require a yes," Rep. Mark Amodei, a
Republican congressman for Nevada and the bill’s
sponsor, told IM.
The bill also aims to coordinate the process between the
various federal and state agencies involved. It introduces the
role of a lead agency, whose function is to bring the different
parties together, preventing duplication of efforts.
It limits the relief available to litigants against
prospective licencees, forcing them to "have some skin in the
game" and bringing the process closer to the British "loser
pays" system of Canada and Australia, where "you need to be
pretty sure in order to file a case", Skaer said.
Further, the legislation aims to address national security
fears stemming from reliance on other countries for key
minerals. "Why are we buying our rare earths from China?"
Amodei asked, "Why buy them when
you’ve got them here?"
Speaking to IM, George Byers, vice
president for government and community relations at Rare
Element Resources Inc., an exploration company developing the
Bear Lodge rare earth project in northeast Wyoming, cited the
example of the Ohio-class submarine replacement, which he
described as America’s principal nuclear deterrent
"Where will the rare earths permanent magnets come from to
enable this truly 'run silent, run deep’
technology?" he asked. "What are the odds that China will
generously step up and give America a 'good deal’
on magnet elements? Wouldn’t domestic
sourcing through a complete home-grown supply chain be more
sensible and secure?"
But the bill has been criticised for its definition of
"critical minerals" being overly broad. According to the bill:
"The term 'strategic and critical minerals’ means
minerals that are necessary (A) for national defense and
national security requirements; (B) for the
Nation’s energy infrastructure, including
pipelines, refining capacity, electrical power generation and
transmission, and renewable energy production; (C) to support
domestic manufacturing, agriculture, housing,
telecommunications, healthcare, and transportation
infrastructure; or (D) for the Nation’s economic
security and balance of trade."
"Not one of the witnesses during our House Natural Resources
Committee hearing could name a single mineral that would not be
considered a "strategic and critical mineral" under the
all-inclusive definition in this bill," Rep. Alan Lowenthal, a
Democratic congressman for California, told
IM. "Sand, gravel, and every other mineral we
know of would qualify as a "strategic and critical mineral" and
receive environmental review short-cuts," he added.
But Amodei told IM that the definition was
meant to be wide-ranging: "It is purposefully broad because
critical doesn’t have the same meaning every day
of the week or every month of the year." Amodei cited recent
storms in South Carolina and earthquakes in California as
examples of situations where the rebuilding of essential
transportation infrastructure became critical and, as a result,
so too did sand and gravel for freeways.
The bill has also been disparaged for reducing environmental
protections. "As written, the bill would avoid proper National
Environmental Policy Act review, with its accompanying public
input, for any and all mineral extraction and, in addition,
make mineral extraction the first-priority use of our public
lands," Lowenthal said.
But proponents dismiss this criticism out of hand: "This
doesn’t lessen the environmental review; it just
makes the process more efficient," Skaer said, "and it
doesn’t change the substantive nature of
environmental laws and regulations, it just makes the process
Similar legislation is included in the Energy Policy
Modernisation Act 2015, sponsored by Republican Senator Lisa
Merkowski of Alaska and Democratic Senator Maria Cantwell of
Washington, which passed out of committee by a vote of 18 to
four and is expected to reach the floor of the Senate in the
While the Senate legislation is slightly watered down
compared to the House bill – for example, it
doesn’t contain the 30-month time limit –
industry participants hope that should it pass the upper house,
a congressional conferencing session may be able to strengthen
But first it must pass a super majority Senate vote,
requiring 60% support. When questioned on the chances of this
happening, Lowenthal’s reponse was simple:
Amodei was more optimistic: "Nobody’s crystal
ball works really well," he said "They [the Senate] have done
nothing in the past three or four years. The fact that
they’re doing something now is a good thing."