US mining permits fast tracked? Legal insights on Trump critical minerals executive order

President Trump’s  March executive order was issued to boost the United States’ ability to produce critical minerals as part of a broad effort to ramp up development of domestic natural resources to render the country less reliant on foreign imports. Amid the geopolitical drama incited by a turbulent trade war, China’s export controls on metals vital across the defence and tech sectors spotlight the urgent need for more robust domestic supply chains.  The order to stimulate US production aims to alter the political landscape of languishing mining project permitting files by prioritizing mineral development and invoking the Domestic-Production Act. In April, the administration reinforced the order, beckoning an archaic bureaucracy into the age of digital efficiency by issuing Updating Permitting Technology for the 21st Century, which states the significant delays to important infrastructure projects that impact the nation’s economic well-being “will now change.”MINING.com spoke with Jason Hill, former DOJ trial attorney in the Environment and Natural Resources Division and current Public Policy & Regulation partner at Holland & Knight in Houston, Texas, who shared his insights on what it all means for miners in this exclusive interview.MDC: What can we anticipate changing with the executive order, and within what timeline? Hill: This executive order comes in the midst of a lot of change and emphasis on permitting reform and streamlining. A lot of the environmental review process comes under the National Environmental Policy Act (NEPA) that was passed in (19)70, and those regulations were put out in the late 70s under Carter. But we have seen a lot of change in that area over the last five years, and especially over the last five months. One thing that’s become clear is both sides of the aisle recognize the need for permitting reform in some fashion. When they did that initial regulatory revision effort in 2020, the Council on Environmental Quality (CEQ), which was created under NEPA, had done some studies and determined that it was taking on average about four and a half years to complete an Environmental Impact Statement (EIS). And with 25% taking over six years and 25% taking less than two years.  Secretary Bernhardt had put out Secretary’s Order (S.O.) 3355 that had limited those times to one year for an EIS and six months for an Environmental Assessment (EA).So much of the time it takes to complete these is not because they’re actually being worked on, but because they’re sitting on someone’s desk for a review.Most of the time, the desk that they’re sitting on is not somebody that’s required by statute or regulations to review it, but somebody in a policy role making sure it’s consistent with an administration’s policy priorities. One of the things they did under S.O. 3355 was to consolidate those reviews of all the different policy makers so that there was less time in between when the field office completed doing the work and they got approval to move forward with carrying out the approvals or modifications. That was picked up government-wide in the 2020 regulation changes to the CEQ regulations for NEPA with a requirement that an EIS (Environmental Impact Statement) be completed within 2 years, and an EA in 1 year. The Biden administration came in and did some revisions to the 2020 regulations in 2022.Then Congress, through the Fiscal Responsibility Act, amended the NEPA statute to incorporate several of the 2020 regulatory changes, including the timelines for completion, before the administration could do a more substantial rewrite of CEQ’s regulations, which it finalized in 2024.Congress actually created a cause of action under NEPA for the first time that allowed project proponents, like a mining company, to bring a cause of action if the government went outside those statutory limits. So the new mineral executive order unleashes and expands on prioritizing mineral development and invokes the Domestic- Production Act. MDC: How will the Executive Order be deployed at a high level? Hill: It directs the agencies to prioritize these applications. They’ll be looking at them faster than other things initiated by the department or other types of projects. The interesting thing about the mineral executive order is it talks about the critical minerals list maintained by the USGS – there are two critical mineral lists, one by DOE, one by Interior. The executive order specifically references the USGS list, but it also adds other minerals to that list that aren’t typically on the critical minerals list, like uranium, copper, potash and gold. Then it allowed for the NEDC, under the energy czar role to add other minerals. So there’s an opportunity to lobby and add other minerals that either aren’t on the critical mineral list or haven’t been specifically called out in the executive order to get that same prioritization.  Then they issued a new executive order that essentially amended the first one by adding coal to that list. I think the overall effort here is a longstanding recognition that the amount of time to get things permitted is unacceptable to both sides of the aisle. This is trying to tap into that and speed the permitting process, saying that as a national priority and as a policy for the nation, we’re going to prioritize these mineral development projects for permitting and environmental review. MDC: Is there a timeline imposed that can prevent a file from languishing? Hill:  What had historically happened, early in NEPA, is the field people did their jobs. But somewhere along the way, the chief of staff for the Secretary of Interior came in for a required review at that level before NEPA documents could be finalized – when it’s at that level, the deputy secretary says, ‘if they’re going to review it, I need to review it before they do’. And then the assistant secretary says, ‘if they’re gonna review it, I need to review it.’And then the director says, ‘if they’re going to review it, I’m going to review it.’ And then the state director says, ‘if they’re going to review it, I’m going to review it.’ The end result is that you get the field staff putting this together, and then it goes up, and sits on their boss’s desk until their boss finds time or prioritizes reviewing it to make sure it’s consistent with whatever the policy is. Then it goes down for edits. And then once those are made, it goes up to the next level. Then repeat multiple times. Before there was no real accountability for where it was in the process, and no real tracking ability either. MDC: What’s different now?They put in a tracking system in order to be able to follow those documents and know who had them at a particular time. A digital tracking system. With that, you could tell (if they entered it into the document tracking system) whose desk it was sitting on and how long it had been there. That was one way for transparency, for management and visibility. The other problem is; imagine you’re a career field person. You’ve got all these bosses above you and it’s sitting on your boss’s boss’s desk. And are you in a position to say, ‘hey, can you hurry up?’ You’re not.  That’s where these things sit for months or years. It’s not that they’re being worked on. It’s not that you’re getting a better document out of it. You’re sitting there waiting for somebody to tell you, yes, this is consistent with our policies, you can proceed or no, it’s not. And if you need to make changes, then it goes back down. But the longer it takes in that review process, by the time it goes down to the people that originally worked on it, they’ve moved. So you’ve got to get somebody new in place to kind of read everything, relearn it, put it together and then move it back up again. It interjects opportunities for mistakes in what is done because they’re not familiar with the document. They correct it in three spots, but leave it in one spot uncorrected. And that’s what a plaintiff picks up on, so it makes it more vulnerable to legal challenge. One aspect of the review process that the first Trump administration at Interior said, is all these people, the BLM director, the assistant secretary, the deputy secretary, all the people in their offices that are going to review – “When the field office has the document ready, go to the assistant secretary, let them know that you’ve got it ready. They’ll distribute it to everybody. They’ll have five days to review it. We’ll have a meeting where you’ll present this. We’ll have reviewed the document. We’ll tell you what our concerns are about it. And if there are any, then we’ll give you a single point of contact to make sure that those concerns are addressed and it can move forward.” So instead of multiple months of multiple levels of review, you had a single review opportunity within a couple of weeks. MDC: What about potential lawsuits?Hill: One of the things they did was assign a solicitor very early on in the process to work with the field staff to make sure that everything was legally sufficient and there weren’t any issues at the end. And so that helped streamline it, make a better, legally defensible document. Each state or region within BLM or other offices have what they call senior executive service people, which are managers paid at a higher rate to make sure they manage things. And a lot of these things just weren’t being reviewed at that level. And so it was holding those people accountable for actually reviewing the document before their staff submitted it. That way you can find things that can be omitted. For instance, you probably don’t need to tell the BLM Director that they manage lands under the Federal Land Policy Management Act. They probably know that already. But you certainly don’t need to tell them that more than once in the same document.  I think when people started reading documents they started seeing things like that in there that could be cut.  In the end, you get a much more streamlined document that was actually easier to read for the public and the decision maker. And they imposed distinct page limits, so you’re not getting these 10,000 page documents anymore. You’re getting a concise document that has a page limit that’s reasonable. And much more in line with the original intent of NEPA. I think some of the right sizing on streamlining is coming through with recent developments, and I think some of these executive orders will reimpose some of those limits to prioritize, take good practices and put them into the agencies’ regulations, and hopefully speed the process along.MDC: What are the national security and economic implications? Hill: I think understanding what critical minerals are.  They are rare earths minerals that have a single point of failure in the supply chain, with an adversary being in control of the processing or sourcing of the material – the March executive order was geared at increasing domestic production to remedy that issue [because]  a lot of those minerals have military applications. There’s a real national security component to making sure that we can produce and refine those products domestically.What this executive order is geared towards is increasing that. Where I’ve seen the opportunities are in situations like with gallium, where we need to domestically store that for military application, and working on the technology. The interesting thing is you have a lot of mines that have produced a lot of material that wasn’t economical, or it was a byproduct when they were going after a target mineral. There are a lot of waste piles that can be refined. Some of the opportunities that the government is looking at are ways to go over those ‘already produced but not refined’ waste piles to acquire some of these minerals and find an opportunity for storage of those minerals for military application. I think there are great opportunities there and I’ve met some of the companies that are working with the government and the military specifically on those projects, to refine already produced waste piles and develop technologies to continue to extract those from what they already produce in their operations.I think it’s a trend you’re seeing in the public-private opportunities where government is working with companies to produce technologies in an economically feasible way to take what’s a waste product and turn it into revenue.Weiter zum vollständigen Artikel bei Mining.com Weiter zum vollständigen Artikel bei Mining.com