The chances of the US Congress passing a bill to expedite
the country’s lengthy mine permitting process are
slimming as the time before the end of the current
congressional cycle runs out.
Legislation to reduce the country’s seven-to-10
year average mine permitting period is part of an energy bill
now in conferencing stage following the passage of the
National Strategic and Critical Minerals Production Act
of 2015 through the House of Representatives last October and
the Energy Policy Modernization Act of 2016 through the Senate
US legislative practice means that once both Houses of
Congress pass related bills they must be conferenced by
negotiators on both sides, with a compromise bill ultimately
agreed on for signing by the US President – if an
acceptable middle ground can be reached.
It had been hoped that negotiations would have led to an
agreement on a compromise bill by the end of the summer, but
this was not the case.
Following their return to the Capitol after Labor Day on 5
September, nominated conferees from both parties and both
houses began meeting in earnest, but at the time of
publication, no agreements had been reached.
"We hoped something would happen before the August recess,
but it hasn’t," Katie Sweeney, general counsel at
the National Mining Association, told IM in
She added that the bills are "definitely conference-able"
and said she was still hopeful of the permitting legislation
Following the appointment of the conferees, the "easy
decisions" as to what is on the table for negotiation from both
bills were quickly made, Laura Skaer, executive director of the
American Exploration and Mining Association, told
IM, but any decisions of substance remain up
The provisions of both bills relating to permitting reform
are among those that remain "on the table" Skaer noted, but the
chances of a bill passing have dropped from 70:30 to 50:50 she
said. And even if a bill is passed, there is no guarantee that
the permitting elements will be included.
"My personal view is if they don’t get it done
in the four weeks they’re back in September,
it’s not going to happen," said Skaer.
An October break followed by the November elections will
rule out further conferencing before legislators return to a
"lame duck" Congress, where passing a bill to keep the
government funded will dominate proceedings.
Once a new President takes office in January, both bills
become void, meaning both houses would have to return to the
Sweeney however believes there is a possibility of progress
right up to the last day of Congress, driven by Senator Lisa
Murkowski, sponsor of the Senate bill.
For her part, Skaer remains hopeful that a desire to appear
active ahead of the election will push members of Congress to
complete the process as soon as possible, "especially with all
the rhetoric about how Congress never does anything", she
The length of time taken to permit a mining operation has
been a bone of contention in the US for some time, with a
report by SNL Metals and Mining finding that 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
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
The bill passed by the House of Representatives last year
was the latest in a series of attempts to deal with the
permitting issue. But in recent years the Senate had not
followed suit, meaning that the passage of the bill in the
upper house this year marked the "furthest the legislation has
ever made it," according to Sweeney.
The two bills are markedly different, however.
The House of Representatives bill seeks to cap the time
taken to approve or disapprove a permit at 30 months,
coordinate the process better and limit litigation
"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 sponsor of the House bill, told IM at the time.
The Senate bill is a slightly "watered down" version of
this, according to Sweeney. "It has process to stop delay, best
management practices and a lot to whittle down bureaucracy. But
it is a lot more aspirational in nature," Sweeney previously
The bills also differ in terms of their definitions of what
minerals are "critical" – and, as a result, under the
purview of the legislation.
The House bill proposes a broad definition, with proponents
arguing that the critical nature of a given mineral may
change quickly, something that provoked criticism from the
The Senate bill calls for the US Department of the Interior
to formulate a methodology to determine what is critical and
apply and update it each year.
Which elements of each bill make it through to the
conferenced compromise energy bill remain to be seen.
Permitting overhaul remains a priority for the Republicans,
according to Skaer. The Democrats, for their part, will be
pushing for renewable energy and efficiency-related elements to
appear in the final draft.
"We’ll see what kind of horse trading gets
done," said Skaer.