COP Nuclear Pledge and Federal Land Choices

 

For those of you not following the COP, the US signed a Declaration to Triple Nuclear Energy. The Department of Energy posted it here.

Commit to supporting the development and construction of nuclear reactors, such as small modular and other advanced reactors for power generation as well as wider industrial applications for decarbonization, such as for hydrogen or synthetic fuels production;

Recognize the importance of promoting resilient supply chains, including of fuel, for safe and secure technologies used by nuclear power plants over their full life cycles;

When it comes to federal lands and various energy forms, I’m not surprised that some folks who are physically close to the new infrastructure, be they mines, solar arrays, turbine fields or geothermal do not want them (this differs by area and kind of infrastructure), and many times folks like our friends at CBD are against them for biodiversity reasons.  It’s problematic and a ripe field for litigation.

These different energy forms also differ by the need for new power lines. Power lines being both sources of wildfire and wildfires causing danger to them.  Meanwhile our current power line infrastructure is in bad shape, and power companies can go bankrupt for damages from inadequately managing the power lines.  As far as I can tell, the cost of constructing and maintaining these new power lines is not taken into account when accounting is done for new energy sources. And permitting issues will slow down any build-out of new transmission lines.

Enter C2N . The Breakthrough Institute wrote a piece on a strategy for coal to nuclear (C2N).

The Breakthrough Institute proposes a U.S. Department of Energy (DOE)-led program aimed at alleviating regulatory uncertainty. This program would assess retiring CPP sites nationwide, categorizing and prioritizing them based on local need for power, remediation, viability of existing infrastructure, and demand for workforce transition. Under the Energy Policy Act of 2005, the DOE can apply for an ESP to conduct site-specific evaluations of a location with potential for a nuclear power plant before the actual construction and operation of the facility begin. This process allows the DOE to assess the suitability of the site and address any potential safety and environmental concerns in advance. The proposed program targets eligible sites with transferable workforces and essential infrastructure, helping to facilitate a seamless transition for C2N projects. In the proposed program, the DOE’s role will be to mass-acquire ESPs for multiple eligible C2N sites and subsequently to transfer those permits to utility companies and developers to recover the costs.

You could add environmental justice concerns of various kinds and community support to the list of criteria.  It might be a better “workforce transition” than many; involving high-skilled union jobs. Best of all, from the federal lands perspective, and the cost perspective,  the transmission structure already exists.

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The other story is called History of U.S. Uranium Industry: Decoupling Past Practices from Future Endeavors

Side story: I did my Ph.D. dissertation so long ago that the Forest Service had only the Data General and PCs were not around.  Because the Forest Service determined that I had done my graduate work without their funding, I was not allowed to use the FS computer for my dissertation.   I worked at the Supervisor’s Office in Lakeview, Oregon.  So I found a woman in town that could type it for me.  She worked at the Lakeview Lumber mill, so my little Mazda hatchback would wait in line with the log trucks so I could get to the window and hand her my drafts.  Now I wish someone had taken a photo of my tiny car amid the trucks, but.. cameras on cell phone were a long way away.  Some of you might wonder “what on earth does that story have to do with uranium”? But former and current Lakeview folks know that Lakeview Lumber was/ is? located on the former uranium processing site. The Fremont had two uranium mines, the White King and the Lucky Lass, which apparently went into the nuclear weapons program.

Anyway, back to the Breakthrough story..

Past uranium mining practices loom over the future of U.S. prospects. Beyond question, the uranium mining industry of the late 1940s through the early 1980s has inflicted significant harm upon workers and local communities, particularly Navajo and Hopi people who continue to face environmental and health risks from un-remediated uranium mines that still lie abandoned across their ancestral homelands. The American people and the U.S. federal government must take responsibility by compensating citizens exposed to pollution and redoubling public funding and agency efforts to clean up abandoned mine sites.

Weaponizing mining misrepresents nuclear power efforts. At the same time, rhetorical efforts to frame Cold War-era tragedies as the unforgiving, original sin of the domestic uranium mining industry and by extension the civil power sector are undeniably misrepresenting history and do little to contextualize the past, present, and future of uranium mining for nuclear fuel production. Addressing unquestioned perceptions is vital for the advancement of low-carbon nuclear power during the industry’s decades-long period of inactivity.

The analysis presented herein investigates the timeline of the U.S. uranium industry during the Cold War era to delineate causes of the historical malpractices, emphasizing the following major points:

  • Environmental impacts from uranium mining arose from the absence of environmental laws and regulations from the late 1940s to the early 1980s, an issue common to the overall U.S. mining sector with uranium mines constituting only a fraction of abandoned mine lands. The vast majority of historic domestic uranium production occurred during this period of accelerated nuclear weapons and defense-related production, before the federal government enacted even the most basic safeguards in place today;

  • Federal agencies undeniably could have been more proactive in mitigating impacts of radiological health hazards to laborers. Instead, they engaged in willful complacency, presumably influenced by the need to maintain uranium supply chains for national defense purposes and weapons programs. To a lesser degree, state agencies and mine operators were in similar positions motivated by their own respective interests;

  • Despite low rates of production, the domestic uranium mining industry has operated responsibly since the end of the Cold War with the establishment of environmental and health standards as part of regulatory reform efforts targeting the overall mining sector;

  • The majority of growth in uranium demand for U.S. civilian nuclear fuel supplies for energy production occurred following these key reforms, suggesting that arguments framing the expansion of the U.S. civil nuclear sector as irrevocably synonymous with legacy uranium mining impacts are selectively misstating the historical record.

Nevertheless, the future of uranium mining is not impervious to the potential occurrence of new injustices. In the broken checkerboard of Navajo Nation lands near the site of the 1979 Church Rock uranium tailings dam failure and other uranium industry superfund sites (EPA Church RockEPA HomestakeEPA Jackpile), Canadian firm Laramide Resources’ recent quiet commencement of uranium exploration activities (NMPR, 2023) highlights the risk that the mining sector could continue to aggravate tensions with local communities by failing to engage deeply and demonstrate a strong commitment to sharing benefits and reducing risks. While on paper, Laramide may be proceeding in line with regulations, this illustrates a case where Laramide’s social license to operate depends critically upon its willingness to undertake outreach efforts and make community guarantees well above and beyond the requirements of written law.

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When President Biden was working on the new Grand Canyon National Monument, E&E had this story.

Most monument proclamations since 1996 have barred new mineral leases, mining claims, prospecting or exploration activities, while carving out protections for valid, existing rights, according to a recent report from the Congressional Research Service.

Legal experts say it could also throw existing claims into question unless companies can show they can mine the claim at a profit.

“It’s frankly very unlikely that any existing claims would be valid,” said John Leshy, who served as Interior’s solicitor during the Clinton administration and is now an emeritus professor at the University of California College of the Law in San Francisco. “But that’s a fact question, and you’d have to go claim by claim.”

Companies eager to mine in the area have argued they have valid and existing rights. What’s more, mining advocates say a national monument designation would throw Biden’s own climate and national security strategy into question.

They’re quick to note that the U.S. currently relies on Russia for a share of its low-enriched uranium. And with the war in Ukraine pushing up prices, they argue the need for advancing extraction and rebooting idled mines has only grown in importance.

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I don’t know how all this will turn out.. it seems like one way would be to estimate how much and what kind of uranium the US would need to live up to its COP commitment, considering recycling and whatever today’s current technologies are. Then assume we can still import from Canada and the Aussies. Then figure out how much we need, and do a programmatic EIS comparing different strategies/places the uranium could be mined and processed.

Yes, whose ox gets gored will always be a political decision. But at least the public would know the pros and cons of the choices.  Which might increase public trust.

Recent developments in mining and energy litigation and policy – July 2023

I only recently started specifically looking for BLM cases, so I may be catching up late on some of them.  Most seem to involve mining and energy.  (This summary includes one Forest Service case.)

New lawsuit:  Center for Biological Diversity v. Haaland (D. Nev.)

On July 7, CBD and Amargosa Conservancy challenged the BLM’s authorization of the Let’s Go Lithium mineral exploration project on federal lands in BLM’s Pahrump Planning Area, in the vicinity of springs in the Ash Meadows National Wildlife Refuge, and two BLM Areas of Critical Environmental Concern.  Lithium mining requires a lot of water.  The project would involve up to 30 exploratory drillholes.  The proposal allegedly violates FLPMA, NEPA and indirectly ESA (with regard to consultation on 12 species).  On July 17 plaintiffs filed a motion for a temporary injunction.  The article includes a link to the complaint.  Also, according to this article, “under federal law, most exploratory projects on public land are not required to submit a plan of operation, complete an environmental analysis, or solicit public comment.” A representative of the Conservancy was quoted:

“We are collectively witnessing what is inarguably the greatest transformation of public lands in our nation’s history, and western Nevada’s Amargosa Desert is at the epicenter of this change.  Renewable energy development and lithium extraction are the twin priorities driving this transformation forward at an unprecedented scale and pace.”

His reference to renewable energy was probably to the Interior Department’s recent sale of leases for solar development on 23,675 acres in or near the Amargosa Valley Solar Energy Zone, a designated solar leasing area with high solar potential and what the Bureau of Land Management in a 2012 analysis characterized as an area of low resource conflict.  The BLM identified the Amargosa valley as one of 17 nationwide solar energy zones wherein solar energy projects are encouraged.  (The BLM is currently processing 74 utility-scale solar, wind and geothermal projects on public lands in the western United States.  An additional 150 solar and wind development applications are undergoing preliminary reviews.)

“Utility-scale solar does not have a huge annual consumption of water during operation, but construction activities can use thousands of acre-feet of water for a single facility. If BLM is going to develop tens of thousands of acres of solar in this area, it could potentially take tens of thousands of acre feet of water,” said Patrick Donnelly, the Great Basin director of the Center for Biological Diversity.  He contrasted the lack of a plan for this area with the BLM California’s Desert Renewable Energy and Conservation Plan.

This article also summarizes a number of lawsuits over renewable energy proposals.

Court decision in Western Watersheds Project v. McCullough (9th Cir.)

On July 17, the 9th Circuit affirmed a district court holding that the Bureau of Land Management had not violated the National Environmental Policy Act and other federal laws when it approved the Thacker Pass lithium mine.  This did not address the district court’s order that the BLM complete additional analysis of how the mine will handle waste and tailings in accordance with the 1872 mining law, and it means the mine development can continue while that analysis occurs.  The court also ruled the BLM acted “reasonably and in good faith” in its consultation with tribes.  “This is the first time in public land history that we have a major project violating a number of provisions but is allowed to go forward,” Roger Flynn, the director of the Colorado-based Western Mining Action Project, told the 9th Circuit panel during oral arguments in Pasadena on June 27.  (The article includes a link to the opinion, and here is further background.)

Here is an interesting perspective from “The Voice of the Automotive World.”

In other news, the mining company has sued protesters for what they deemed “nonviolent prayer” protests at the mine site. Lithium Americas was forced to call the Humboldt County Sheriff’s Office when protesters got “dangerously close” to construction equipment.

Notice of intent to sue under ESA

On June 20, eight environmental groups challenged the Coronado National Forest’s approval of the Sunnyside and Flux Canyon exploratory mineral drilling projects in the Patagonia Mountains for copper, lead, zinc and silver (discussed here).  On July 13, they gave the Forest Service and Fish and Wildlife Service a 60-day notice of intent to sue for Endangered Species Act violations affecting Mexican spotted owls, yellow-billed cuckoos, jaguars, and ocelots.  On July 14 they asked for a preliminary injunction on their existing claims.  We also discussed another mine in the same area that was being fast-tracked for its rare metals by the Biden Administration.  From this article, it does not sound like there will be litigation on the Hermosa Project.

Update

In September 2020, a coalition of conservation groups including Friends of the Floridas, New Mexico Wild, WildEarth Guardians, Gila Resources Information Project, and Amigos Bravos sued BLM to reverse the agency’s simultaneous approvals of construction and operation of a dolomite mine, and the exploration activity required to prove the value of the mineral claim in the Florida Mountains in southwest New Mexico.  On July 12, 2023, the Federal District Court for the District of New Mexico heard oral arguments involving violations of NEPA and FLPMA.

Update

As discussed here, the lawsuit against the BLM’s decision to allow Ormat Technologies to develop geothermal resources in Dixie Meadows east of Reno in habitat for the recently listed Dixie Valley toad has been on hold at the request of the developer.  BLM has now decided, “As a result of its ESA consultation efforts and new information it has determined that it would be prudent to revisit the environmental review underlying the project.  BLM does not intend to authorize any such new construction until the conclusion of the environmental review.”  Ormat supports the delay.

 

Two Exploratory Mining Projects in Arizona: One Litigated, One Streamlined with FAST-41

This photo claims to be an exploration drilling rig for mining. Any better photos, please submit!

From E&E News:

Environmental groups are suing the Forest Service to halt mineral exploration in Arizona’s remote and biologically diverse
Patagonia Mountains.
The legal fight is playing out in close proximity to a separate mineral project the Biden administration hopes to fast-track. Groups including the Arizona Mining Reform Coalition, the Center for Biological Diversity and Earthworks filed a lawsuit Tuesday in the U.S. District Court for the District of Arizona, challenging the agency’s approval of the Sunnyside and Flux Canyon exploratory mineral drilling projects.
The legal challenge zeroes in on the Forest Service’s approval earlier this month of exploratory drilling in an area of the Coronado National Forest that the groups say contains nesting and foraging sites for the threatened Mexican spotted owl and Western yellow-billed cuckoo, as well as habitat for endangered jaguars and ocelots. The Forest Service said it does not comment on ongoing litigation and referred questions about the lawsuit to the Department of Justice, which did not immediately respond to a request for comment. According to the lawsuit, Arizona Standard LLC, a subsidiary of Barksdale Capital Corp., a Canadian metals exploration company, would be able to drill up to 30 new well pads to look for copper, lead, zinc and silver. Separately, the agency approved the Flux Canyon project, which would allow Arizona Minerals Inc., a Nevada-based corporation held by South32 Ltd., an Australian mining and metals company, to develop more well pads to identify silver, lead and zinc deposits.
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The lawsuit also says that the cumulative impacts of such drilling projects would “transform this mostly undeveloped landscape with a constant disruption of noise, lights, dust, human activity, and vehicle traffic for the foreseeable future.” The Forest Service’s conclusion that the Sunnyside project didn’t require a full environmental impact study and that Flux Canyon required no environmental assessment is “arbitrary and unlawful,” the groups said.
“These oversights, omissions, misreadings, and failures violated NEPA,” attorneys for the groups wrote in the lawsuit. The Patagonia Mountains are also home to a separate mining project that the federal government is fast-tracking, which environmental groups say adds to the cumulative impacts on vulnerable species.
The Biden administration in May announced it is moving to expedite the review and approval of a manganese and zinc mine in southern Arizona, South32 Hermosa’s $1.7 billion underground mine and processing plant. “It’s clear these cumulative impacts will be significant for wildlife,” said Laiken Jordahl, an advocate with the Center for Biological Diversity.

Here’s a link to the description of the FAST-41 for the South32 Hermosa mine.

Does anyone know whether the litigation process is different for Fast-41 projects?

Biden Admin Via Forest Service Approves Land Swap for Rio Tinto’s Arizona Mine

Copper core samples at Resolution’s processing facility. Photo by the NY Times.

Sometimes the Biden Admin goes with the interests of Indigenous groups and other times it seems to go against them. I wonder what we can see if we examine the pattern of what one might call the “flouts and touts” of various policies and reverse-engineer what interests might be calling the shots at what point in time. When- what kinds of projects, where, do they flout? When do they tout? Can we see flouting and touting in stories of various media outlets? And of course, if Indigenous groups disagree, how is that considered and reported? How does the Admin consider the opinions of elected Tribal officials versus other Tribal groups when they seem to be in conflict?

We can’t be sure that the Rio Tinto case is a flout, since we’re not sure whether the President could do anything differently.

Another interesting thing about this case is that the opponents are a group called Apache Stronghold, “a nonprofit group comprised of members of the San Carlos Apache Tribe and others” and they are supported by people for religious liberty (the Becket Fund), which is another interesting twist on the issue. For those interested, that group is a conservative nonprofit, according to the NY Times.

Here’s a link to yesterday’s Reuters story.

– The U.S. Forest Service plans to re-publish an environmental report before July that will set in motion a land swap between the U.S. government and Rio Tinto (RIO.L)(RIO.AX), allowing the mining giant to develop the controversial Resolution Copper project in Arizona.

The move would be the latest blow to Native Americans who have long opposed the mine project, which would destroy a site of religious importance but supply more than a quarter of U.S. copper demand for the green energy transition.

The complex case centers around a land swap approved by Congress in 2014 that required an environmental report to be published, something the Trump administration did shortly before leaving office. President Joe Biden then unpublished that report in March 2021 to give his administration time to review the Apache’s concerns, though he was not able to permanently block the mine.

Meanwhile, Apache Stronghold, a nonprofit group comprised of members of the San Carlos Apache tribe and others, sued to prevent the transfer of the federally-owned Oak Flat Campground, which sits atop a reserve of more than 40 billion pounds of copper, a crucial component of electric vehicles. Several courts have ruled against the group.

Joan Pepin, an attorney for the Forest Service, told an en banc hearing of the 9th U.S. Circuit Court of Appeals on Tuesday that “the prediction for that (new environmental report) is to be ready this spring.”

The Forest Service is not waiting for the court’s ruling to publish the new report, Pepin said, adding that the agency does not believe an 1852 treaty between the U.S. government and Apaches gives Native Americans the right to the land containing the copper.

“This particular treaty is just a peace treaty. It doesn’t settle any rights to land and it doesn’t create any land rights,” Pepin told the court.

The 11 judges at the hearing questioned all sides about the legal concept of substantial burden and whether the government can do what it want with federal land, even if it prevents some citizens from fully exercising their religious beliefs. A full ruling is expected in the near future.

Wendsler Nosie, who leads the Apache Stronghold, said at a rally after the hearing that Pepin’s statements showed Biden – who controls the Forest Service – has not made opposition to the mine a “priority” for his administration.

“It’s not over. It’s just made us stronger, tougher, and deeply committed to our prayers,” Nosie said.

A Rio spokesperson said the company is closely following the case and respects the legal process, but believes “that settled precedent supports” the rejection of Apache Stronghold’s claims by a lower court. Rio has said it will smelt copper from the project inside the United States.

Representatives for the San Carlos Apache tribe were not immediately available to comment, nor were representatives for BHP, which is helping Rio develop the mine.

One wonders whether the Tribe itself has a position, or whether they are staying out of it. If individual members don’t agree what does that mean? As an earlier New York Times story reported

There are differing opinions on the merits of mining even on the San Carlos Apache reservation. Some people view the mine as an affront to their traditions, while others consider it an economic opportunity and a source of employment.

. There’s a lot of detailed context in that story.

I think this is also an interesting angle.. “President Joe Biden then unpublished that report in March 2021 to give his administration time to review the Apache’s concerns, though he was not able to permanently block the mine.”

Despite some organizations that blame Biden for not shutting down oil and gas leasing aka “living up to his promises” he does have to operate within legal boundaries.
Perhaps he can’t due to something related to the 1872 Mining Law. Does anyone know?

Finally, a shout out to all the FS employees working on this project!

Tribal “Stewardship” But Not Agreement? The Thacker Pass Lithium Case

I think we’re all for Tribal consultation and co-stewardship (depending on exactly what that means). Here’s a quote from Interior Department Guidance to Strengthen Tribal Co-Stewardship of Public Lands and Waters:

said Secretary Deb Haaland. “By acknowledging and empowering Tribes as partners in co-stewardship of our country’s lands and waters, every American will benefit from strengthened management of our federal land and resources.”

Of course, federal authorities stay the same, that is, to consult and not go with what Tribes want. It seems to be a focus on the process (consultation) rather than the product (decisions that Tribes agree with). This sounds like a bit of an echo of ordinary public involvement. We can have a great process and not decide the way any particular group wants. But the term “co-management” to me implies more than “we listen to your opinion more carefully than other groups”. But if the Admin can still overrule Tribes, are they any more “empowered” than before an enhanced consultation process?

There’s also the scale thing. For example, when DOI had their public session on oil and gas regulations, that I covered here, Tribes and Native Alaskans said they were for “all of the above” and yet this did not seem to transfer directly to DOI policy. Perhaps the scale is the problem, and Tribes should be consulted on the overall decarbonization- climate- energy policy in its entirety. Because the solar-wind-minerals-uranium under all scenarios would occur on federal lands. To the extent that it does, maybe the USG should back up and consult on the broader-scale policy- both energy and climate. Perhaps have an elected Tribal representative in all White House climate discussions?

Anyway, here’s a story from “This is Reno” on Tribes suing the BLM:

Three Native American tribes filed this week a new lawsuit against the Bureau of Land Management over Lithium Americas planned Thacker Pass lithium mine.

The lawsuit comes after federal Judge Miranda Du mostly ruled against the plaintiffs seeking to stop the project near the Nevada-Oregon border. It was filed Thursday by the Reno-Sparks Indian Colony, Burns Paiute Tribe and Summit Lake Paiute Tribe in Federal District Court.

The tribes are alleging BLM withheld information from the state “and lied about the extent of tribal consultation in order to secure legally required concurrence about historic properties” at Thacker Pass. They are also alleging BLM lied and misled the tribes about other aspects of the mining project.

“The new lawsuit is also strengthened by the addition of the Summit Lake Paiute Tribe, one of the Tribes that the BLM claims to have consulted with prior to issuing the [record of decision],” they said in a press statement. “Summit Lake and both other tribes the BLM claims to have consulted (the Winnemucca Indian Colony and Fort McDermitt Paiute-Shoshone Tribe) have disputed BLM’s assertion that any consultation took place.”

The Winnemucca Indian Colony, they said, was unable to intervene in the case for not filing soon enough.

“When the decision was made public on the previous lawsuit last week, we said we would continue to advocate for our sacred site PeeHee Mu’Huh,” said Arlan Melendez, chair of the Reno-Sparks Indian Colony. “It is also the very same place where our people were massacred (never laid to rest properly) by the U.S. Calvary. It’s a place where all Paiute and Shoshone people continue to pray, gather medicines and food, honor our non-human relatives, honor our water, honor our way of life, honor our ancestors.

“The Thacker Pass permitting process was not done correctly. BLM contends they have discretion to decide who to notify or consult with,” he added. “They only contacted 3 out of the 22 tribes who had significant ties to Thacker Pass.”

There’s also a good comprehensive story on E&E News that is open to everyone. They took a political slant to it..

“Democrats and Republicans are both pro-development in this state and always have been,” Lokken said.

Some Democrats are more likely to be concerned about the environmental impact of mining and about ensuring that the state gets tax revenue from the industry, added Lokken, but development has ultimately won out.

“The party decided a long ago that this kind of development is fine,” he said.

Where Biodiversity, Tribal Views and Climate Mitigation Meet -And Disagree.. The Thacker Pass Lithium Mine Case

State Route 293, seen on April 27, 2021, is a lightly-trafficked one-lane road that crosses U.S. 95 and leads from Orovada to Thacker Pass on the other side of the valley. (David Calvert/The Nevada Independent)

 

Here’s  one of those blanket statements being made that sound vaguely plausible at some scale in this recent article in Discover, called  “Debunking Climate Myths”. (Personally if I never heard the word “debunking” again in this lifetime, I would be quite happy.)

Action to mitigate climate change and adapt to its risks and impacts is already happening. Efforts to reduce carbon emissions, switch to renewable energy sourcesrewild natural areas and more are ongoing and often occur at the local level.

And here we go.. how would “rewilding” actually work to reduce carbon emissions, or perhaps it’s adaptation, or a “natural climate solution”? So what is the role of “unnatural climate solutions”?  It seems that in physical world, as opposed to word world, there is some tension between rewilding and climate mitigation.  And while folks can write they want about it in various media outlets.. it’s at the local level where the renewable rubber meets the biodiversity/rewild road, and where, according to the IUCN, indigenous and local rights are to be protected.

In that light, let’s go to an interesting piece today from the Nevada Independent via the Center for Western Priorities.. I think it’s a really good detailed piece, with lots of legal stuff.  It’s one of those examples of projects where people honestly disagree, and the way it goes into court it makes it sound like “the BLM did it wrong” as if there were a way they could have analyzed it that would be.. right.. and come to the “wrong” conclusion.

The interpretation of a 150-year-old mining law could be a part of whether a U.S. District Court judge upholds the federal government’s approval of a massive lithium mine — a project that has faced challenges from a local rancher, environmental groups and Native American tribes.

In legal briefs over the past two years, the mine’s opponents have challenged federal permitting of the planned Thacker Pass mine north of Winnemucca. Federal land managers, they argued, fast-tracked the project and did not adequately consider a number of issues in its environmental review — the mine’s footprint on wildlife habitat, groundwater, air quality and Indigenous sites.

On Thursday, the project’s opponents had their first opportunity to fully lay out the merits of their case challenging the mine’s federal environmental review. Yet much of the arguments centered around a broader question that has wide-ranging implications for mines across the West: What is the federal government’s proper role when approving and regulating mines on public land?

Policymakers from across the state, and the country, have pushed for developing Thacker Pass, touted as the largest known lithium source in the United States, arguing that it is needed to help fuel an economy less reliant on fossil fuels and more on lithium-ion batteries. Although the plan was approved at the end of the Trump administration, the Biden White House has continued to focus on procuring a domestic supply of “critical minerals,” and has defended the mine in court. …

Debate over the Thacker Pass mine has become a focal point in a national conversation about how the administration should balance sometimes competing priorities — bolstering the supply chain for an energy transition away from fossil fuels, protecting biodiversity and advocating for environmental justice.

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Plaintiffs in the case have challenged the mine on several other grounds, alleging that federal land managers did not adequately consider air quality standards, groundwater concerns or fully evaluate the potential impact on wildlife, such as Greater sage-grouse and pronghorn antelope.

On Thursday, attorneys for the Reno-Sparks Indian Colony and the Burns Paiute Tribe argued that federal land managers did not conduct government-to-government consultation with them, when in fact they had a responsibility to do so. In the environmental review process, federal land managers did consult with three tribal governments, relying on geographic proximity, affirmative expressions of interest and historic ties to the area as factors for guiding its consultation plans.

But Rick Eichstaedt, an attorney for the Burns Paiute Tribe, said the federal government should have broadened its reach by consulting the Burns Paiute Tribe in Oregon and the Reno-Sparks Indian Colony — and giving more consideration to how tribal nations currently view the land.

“Tribes still exist,” he said. “And they care about this area. That’s why we’re here.”

Anyway, I thought it was an informative article on a very complex issue.

New Battery Supply-Chain and Federal Lands Mining Law Task Forces


Tiehm’s buckwheat grows in Nevada above lithium-rich soil.
Photo: Nevada Natural Heritage Program

Supply chains aren’t something you usually read about in our world, but are relevant to mining on federal lands. This piece is from Mining News North and talks about Biden administration efforts including 1) a task force to identify sites where critical minerals (read batteries) can be responsibly produced and processed in the U.S., 2) and another to propose new legislation for mines on federal land, and to 3) fully explore “opportunities to reduce time, cost, and risk of permitting without compromising strong environmental and consultation benchmarks”.

It sounds like a good thing for BLM and possibly the FS that this task force will identify sites…it also sounds like the Administration will have to walk a challenging line between projects being developed “at the highest standards for environmental protection” and streamlining permitting. Perhaps they will figure something out that can be applied to other kinds of projects.

There have been some lithium mine controversies already. There’s lithium mine vs. endangered buckwheat in the press. Also the Thacker Pass potential mine has generated controversy..

Below are some excerpts:

The administration addressed the battery metals and other critical minerals needed in a June report that followed a 100-day assessment of the vulnerabilities to America’s supply chains.

In preparation for the “sustainable sourcing and processing of the critical minerals used in battery production all the way through to end-of-life battery collection and recycling,” the White House is assembling a working group of federal agencies led by the U.S. Department of Interior and supported by the White House Office of Science and Technology Policy to identify sites where critical minerals can be responsibly produced and processed in the U.S.

“This working group will collaborate with the private sector, states, Tribal Nations, and stakeholders – including representatives of labor, impacted communities, and environmental justice leaders – to expand sustainable, responsible critical minerals production and processing in the United States,” according to a statement outlining the administration’s strategy to strengthen supply chains.

The White House, however, wants to ensure that any such critical mineral projects are developed at the highest standards for environmental protections.

To identify gaps in mining-related statutes and regulations that may need to be updated by Congress, the White House is assembling a second federal interagency team composed of staff from DOI, USDA, EPA, and others with expertise in mine permitting and environmental law.

Information collected by this group will be used for an expected push for U.S. lawmakers to establish a whole new mining regulatory framework with strong environmental standards throughout the entire mine life, from development to reclamation.

“We recommend Congress develop legislation to replace outdated mining laws including the General Mining Law (GML) of 1872 governing locatable minerals (including nickel) on federal lands, the Materials Disposal Act of 1947 to dispose of minerals found on federal lands, and the Mineral Land Leasing Act of 1920 among others,” the Biden administration wrote. “These should be updated to have stronger environmental standards, up-to-date fiscal reforms, better enforcement, inspection and bonding requirements, and clear reclamation planning requirements.”

The three laws cited by the White House, however, are not related to the environmental regulations governing mining in the U.S. Instead, they detail how federal lands are prospected and staked (Mining Law of 1872); how minerals on federal lands are sold or leased (Materials Disposal Act of 1947); and royalties on mineral products on federal lands (Mineral Land Leasing Act of 1920).

Much of the federal regulations relating to environmental standards and permitting process for mining projects in the U.S. are found within the Clean Water Act and National Environmental Policy Act.

The NEPA process is both renowned for its strong environmental protections and infamous for the nearly a decade it takes for a large domestic mine in the U.S. to gain permits under its process.

“Mine permitting in the U.S. takes on average seven to 10 years, and often longer,” National Mining Association President and CEO Rich Nolan wrote in a February column for RealClearEnergy. “In Canada and Australia, nations with comparably robust environmental standards, permitting is achieved in just two to three years.”

Earlier this year, the Biden administration indicated that it would look to these jurisdictions with more efficient mine permitting processes to feed much of the needed minerals and metals into American supply chains.

….

As such, the White House is directing the federal mining regulation working group to fully explore “opportunities to reduce time, cost, and risk of permitting without compromising strong environmental and consultation benchmarks.”

FAST 41 and Adding Mining Projects

This shows the DOT Dashboard for the Chokecherry-Sierra Madre Wind Energy Project.
Leslie Watson wondered about the regulation that revised Fast-41 to include the mining industry.

She said “In reviewing Fast 41 requirements, it in not quite clear to me on how the Jan 8 2021 revised rule will be implemented and if a mining project (such as Stibnite Gold Project) are included under Fast 41, what changes for agency staff and applicants?”

Fast-41 Rule; revised to include mining industry
The origin of Fixing America’s Surface Transportation (FAST) Act was to “improve the timeliness, predictability, and transparency of the Federal environmental review and authorization process for covered infrastructure projects.” Eligible projects under the statute are those subject to NEPA, over a $200M investment and are not included under other abbreviated authorization or environmental review processes. The Jan 8 2021 rule includes the mining industry projects as defined by the permitting council and consistent with E.O. 13807, “Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects,” and E.O. 13817, “A Federal Strategy to Ensure Secure and Reliable Supplies of Critical Minerals.”

Guidance for the Coordinated Project Plan from the permitting council (May 26, 2020 https://www.permits.performance.gov/fpisc-content/fast-41-process#whatiscpp) include the following:
The Coordinated Project Plan (CPP) is a tailored roadmap to the permitting process, developed by Federal agencies in partnership with the project sponsor. In developing the CPP, agencies collaborate to establish:
• Roles and responsibilities for all entities with permitting responsibilities
• A permitting schedule with interim and final milestones, with potential focus areas for additional interagency coordination noted
• Potential avoidance, minimization, and mitigation strategies
• Plans and a schedule for public and tribal outreach and coordination

She asks “Would mining project proposed for inclusion under the Fast 41 program develop a CCP to submit to the lead federal agency for the project along with a Plan of Operations?”

It sounds to me from a brief review that the developer would choose to opt in (here are the pros and cons according to one law firm). Then the Lead Agency would initiate the CPP. Possibly the FS would be the lead agency; I’m not clear when BLM is the lead on minerals.

Here’s a summary from DOT about FAST41.

It looks like while BLM has quite a few projects enrolled in Fast41, the FS only has one project (one was cancelled), the Kake to Petersburg Tranmission Line.

Here’s a roadmap of the coordination process. The Forest Service has its own website about FAST41 here.

This might sound pretty specialized, but with the Biden Administration potentially encouraging many new wind and solar installations plus the necessary transmission lines on federal lands, we may all become more familiar with FAST41 and using it for projects.

Batteries vs. Buckwheat: Mining for Lithium on Federal Lands

Photo of rare buckwheat from CBD via AP.

This AP story has all the challenges of the “good industry” versus “bad industry” philosophical conundrum. We know that electric cars are good, at least if they are run off all carbon-free sources. Unfortunately, they require (as almost everything does) mining minerals to build them.

CBD says “not where they occur on federal land in Nevada, due to an endangered buckwheat.”

The company acknowledges Tiehm’s buckwheat hasn’t been documented anywhere else on earth, but denies the mine would lead to its extinction.

Company officials say they’ve been researching the plant since 2016, going to great lengths to ensure its protection and examining how it’s fared during previous mining operations at Rhyolite Ridge, near the small town of Tonopah, over the past 80 years.

They recently spent $60,000 for a yearlong study at the University of Nevada, Reno. Scientists there are growing hundreds of seedlings in a greenhouse to determine whether it’s feasible to transplant them into the wild to bolster the limited population, an estimated 43,000 plants covering a total of 21 acres (8.5 hectares).

“We have always been aware of the buckwheat. It didn’t come as a surprise,” Ioneer President Bernard Rowe told The Associated Press in a phone interview from Australia.

All site activity has been undertaken with the “protection of the buckwheat first and foremost in mind,” Rowe said. He added the company’s mitigation strategy “will ensure protection and, in fact, the expansion of the buckwheat population.”

“We’re seeing evidence of that at the greenhouse at UNR,” Rowe said. “We’ve got a reasonably high degree of confidence we can successfully propagate these plants and protect them.”

But what I thought was most interesting about this article, given our discussions about abstraction, are quotes from the scientists involved (caveat, they may have been misquoted, but I’m taking this at face value).

Leger, who also serves as director of UNR’s Museum of Natural History, said those who dismiss the flowers as weeds unworthy of all the fuss don’t understand the value of biodiversity.

“Weed is a human construct. A weed is a plant that grows anywhere a human doesn’t want it,” she said, adding biodiversity is “magic” and a safeguard against future loss.

Biodiversity is actually a human construct, as is the idea of species, especially when we get to telling closely related species apart.

I’m a little concerned with a scientist saying that that biodiversity is “magic”, though. Anyway, it’s interesting what it means to potentially lose “a species” of buckwheat that grows on 21 acres as opposed to losing “biodiversity”. Is it more compelling, or magic, or less compelling or magic?

Meanwhile, Donnelly of CBD (not a scientist) says:

He acknowledged a difference between transplanting plants and growing them from seeds, but said it’s “beside the point, really.”

“A species is more than a set of genetic material. A species is inextricable from its habitat,” Donnelly said. “To allow a species’ habitat to be wiped out and put it someplace else, is functionally allowing it to go extinct.”

I always thought ESA was about “sets of genetic material” but maybe CBD intends to raise the bar.

Rare Earth Mineral Production, Federal Lands and American Minerals and Security Act, S. 1317

This article from the Colorado Springs Gazette talks about a bipartisan bill to encourage mining of rare metal deposits. They reported on a Colorado School of Mines professor, Morgan Bazilion, testifying to the Senate Energy and Natural Resources committee.

Bazilian is director of the Payne Institute for Public Policy at the Colorado School of Mines in Golden.

He testified before the Senate Energy and Natural Resources Committee as it considers legislation that creates incentives for U.S. mining companies to extract more of the minerals to make rechargeable batteries, solar panels, wind turbines and consumer products.

Manufacturing them often requires use of rare earth elements such as lithium, cobalt and yttrium.

Most rare earth minerals used in the U.S. come from China, where regulatory and environmental obstacles are less stringent and costly. Minerals commonly are extracted from open pit mines that are unlikely to win permits from U.S. regulatory agencies.

Nevertheless, new clean energy technologies cannot do without them, Bazilian said.

“The future energy system will be far more mineral- and metal-intensive than it is today,” he told the Senate committee. “Many of these advanced technologies require minerals and metals with particular properties that have few to no current substitutes.”

U.S. Geological Survey studies show large rare metal deposits in Colorado, particularly in the Wet Mountains and San Juan Mountains.

A leading legislative proposal in Congress to encourage more U.S. development of rare earth minerals is the American Mineral and Security Act, S. 1317.

It would require the Interior Department to maintain a list of minerals critical to U.S. economic prosperity and national security. Regulatory agencies also would be charged with improving processes to find, develop and use the minerals for industry.

You can see if there are rare earth minerals spotted by the USGS on these maps. Which even an old GIS-impaired person can use. Some appear to be on FS, although to what extent the FS would regulate vs. it being a locatable mineral, I don’t know.

I think it’s interesting because it’s one of a list of products (1) is something people need and (2) it can be produced from US lands but (3) the choice is to pay folks in other countries with potentially less stringent environmental regulation, and who may not always be inclined to sell them to us. On the pyramid of pristinity, of course, mining is possibly the lowest.

It seems to me that a rational approach would be to suggest:
(1) our country’s demand and use is the ultimate source of environmental damage, not the producer. By buying resources from other countries, we are implicitly accepting our responsibility for their environmental damage. This decoupling of responsibility seems to be assumed.
(2) there is some utility to being diverse and resilient to market forces and not dependent on other countries (especially when there are relatively few).
(3) if we produce, we can regulate in a way that is meaningful to us,
(4) if we produce, we get jobs (seemingly high paying), taxes, and if it’s on federal land, $ back to the feds (and for oil and gas, the states).
(5) to me, it’s conceptually different if we have it and don’t produce it, compared to not having the resource at all, which necessitates trade as a source.

For those of us who remember the oil crises of the past, we may not understand all the ins and outs of the geopolitical consequences of dependence for today, but our experience has not been good.

But what if we decided to take environmental responsibility for our own demand (in cases where we have that resource), and produce what we consume ourselves, or at least enough to make us resilient to market and geopolitical forces?

And what should be the role that federal land would play in that? Politician wise, we have the current Gov. of Colorado who called for less regulating of solar and wind on federal land, and we have current Presidential candidates who want to stop oil and gas leasing on federal land. Should the openness to activities on federal land depend on The Pyramid of Pristinity or the Pyramid of Climate Utility?