Getting Critical Minerals Right

Executive Summary

A straightforward urgency surrounds supply chains for critical minerals, given their importance in helping guide the United States towards new technological and economic heights. However, many ongoing policy discussions regarding mine permitting reform, which seeks to develop the domestic mining industry to strengthen U.S. critical minerals security, lack a realistic, definable vision of what an ideal regulatory system would accomplish. As a result, recent proposals for accelerating and expanding domestic critical minerals production have included several faulty solutions for resolving these obstacles. Such problematic policy suggestions often stem from misdiagnosis of the key challenges underlying domestic mine permitting.

In particular, the domestic mining industry places a premium on shortening the timeframe required to navigate the regulatory process prior to opening a mine. Reports, fact sheets, and testimony often allege that permitting times for U.S. mine projects range from five or seven to 10 years, comparing the U.S. regulatory regime unfavorably to those of peer countries like Canada or Australia. These broad ranges not only imply a revelatory lack of consensus on the existing permitting system’s performance, but also assert long permitting timeframes that are not representative of national norms. In practice, such long timeframes are outliers, characteristic of high-profile projects. Claims that long permitting times are typical misrepresent the permitting timeline as excessively lengthy and the existing regulatory system as fundamentally broken.

With the narrow goal of slashing permitting timeframes, policymakers have proposed blunt measures, such as the time and page limits on environmental reviews specified in the recently-passed Fiscal Responsibility Act of 2023. Such time-based “shot clocks” and page limits aim to arbitrarily accelerate timelines, disregarding the inherently risk-averse, cyclical nature of the mining industry, without directly tackling more concrete ways to improve underlying regulatory efficiency. Imposition of superficial deadlines and page limits may distract policymakers from better opportunities to improve the regulatory process, and will at worst hamper mining projects by producing inadequate reviews that subsequently face furious stakeholder and legal challenges, which further extend the timeframe.

Meanwhile, other stakeholders have argued that mine permitting reform should not occur without sweeping legislative reforms to strengthen environmental and community protections. Advocates often condemn supposed deficiencies of the General Mining Law of 1872, such as its age and its exclusion of many modern industry provisions. However, such criticisms are often misplaced, as other newer legislation covers many considerations that the 1872 law did not originally address, such as remediation requirements and claim patenting restrictions. Nor does Congress need to repeal, replace, or significantly revise the General Mining Law to bolster social and environmental responsibility. More targeted reforms can address remaining concerns such as royalty payments, oversight, and accountability for environmental risks while minimizing disruption to the existing regulatory framework.

To better clarify such policy debates, this report presents actionable recommendations to improve domestic mine permitting efficiency while promoting strong environmental and social standards. We assess the performance of existing regulatory frameworks and critically evaluate popular claims regarding the burdens that regulatory timeframes impose on industry, while identifying valid and valuable priorities for process improvement.

The benefits, challenges, and risks associated with mine permitting differ dramatically from issues facing transmission, pipeline, or energy projects. As such, we caution against calls for a sweeping crusade to overhaul an allegedly broken “system” generalized across myriad sectors, but rather advocate for targeted optimization of an already-capable mine permitting framework to align it with a new era of needs.

Summary of recommendations:

• Maximize the effort expended on National Environmental Policy Act (NEPA) reviews and environmental studies at preemptive, programmatic levels to minimize the effort needed to complete equivalent requirements unique to specific projects.

• Create a statutory and regulatory classification for domestic critical minerals, distinguishing them from their current categorization as locatable minerals, which would:

  • Allow policymakers and agencies to more effectively account for and even prioritize critical minerals in land use planning and resource management efforts; and

  • Allow policymakers to address specific concerns like environmental risks, royalties, agreements with Native American tribes, foreign investment standards, patent restrictions, end-use designations, and production data disclosure on a mineral-by-mineral basis, without needing to repeal and replace the General Mining Law of 1872.

• Require consistent tracking and publicly available compilations of regulatory data including:

  • Dates for NEPA milestones, plan and operational permit approvals, and mine operation commencements;

  • Records of causes of avoidable delays, all cooperating agencies involved, and any tiering of programmatic NEPA reviews; and

  • Numbers of plans submitted, processed, and pending approval by lead agency.

• Optimize agency performance and minimize operator-induced delays by:

  • Increasing staffing of land management agencies;

  • Revising relevant land management regulations to be consistent across agencies as much as appropriate; and

  • Providing enhanced guidance to mine operators with pre-consultation meetings, designated cross-agency case workers, and improved reference materials.

Introduction

Critical minerals are necessary inputs for both clean energy technologies and a competitive 21st-century economy. From the rare earth elements contained in wind turbine and electric vehicle permanent magnet motors to the lithium in lithium-ion batteries, these specialty raw materials are often essential to the core function of cutting-edge devices and infrastructure. In addition, these resources present valuable economic opportunities, given rapid ongoing and expected growth in demand. For example, the International Energy Agency anticipates at least tenfold growth in demand for battery metals like lithium, nickel, and cobalt by 2040 (IEA, 2021), while the future global wind energy sector of the 2040s could require triple the scale of current world rare earth element production (Wang et al., 2023). With their importance continuing to grow as technological applications develop and become more widespread, countries have begun to strategically prioritize efforts to secure reliable supplies of these key raw materials.

In the United States, bipartisan efforts to bolster critical minerals security have included initiatives to promote exploration for new deposits, develop unconventional resources, and expand downstream capabilities such as processing and recycling (CRS R45810, 2019). However, because critical minerals are by definition materials subject to supply chain vulnerabilities (Energy Act of 2020), concerns over continuing net import reliance have made the expansion of domestic production capacity a central priority.

Proponents of increasing domestic production have touted the significant mineral resources of the United States, while claiming the regulatory and permitting requirements associated with bringing a mine into production are unnecessarily time-consuming, thereby limiting development (SNL, 2014; SNL, 2015). Members of Congress have criticized the dependence on foreign imports caused by such limitations as antithetical to critical minerals goals (ENR, 2022). Simultaneously, industry stakeholders have consistently argued that lead times devalue projects and deter investment (Fraser Institute, 2021). Adding to this concern, the landscape of global critical minerals markets has indeed already shifted considerably over the past few decades due to many factors separate from differences in regulatory systems, with new overseas producers significantly outpacing modest U.S. production of many raw materials. Reasons for this trend include new geologic discoveries, differences in labor and operational costs, and industrial policies abroad that have supported mineral industry development.

Meanwhile, advocates from historically underserved communities and some environmental organizations have expressed concern over the potential environmental and social impacts of policy efforts to increase mining activity across the United States. Many environmental stakeholders have long voiced concerns over issues including royalty payments, funding for historical mine reclamation, and the environmental and labor standards of foreign import sources (CRS R46278, 2020; Clean Energy Minerals Reform Act of 2022).

Yet consideration of environmental issues need not conflict with efforts to improve the efficiency of domestic critical minerals production. At a minimum, all parties can agree that the compelling public interest in domestic mining and critical minerals security warrants a review of the regulatory framework that governs domestic industry. This report provides an overview of the current regulatory framework for mine permitting and reviews data on past mining projects to assess the nature and degree of time requirements imposed by the mine permitting process, then presents policy recommendations that can reduce inefficiencies while simultaneously maintaining strong environmental and social standards.

Overview of Existing Regulatory Process

From an operational perspective, the process of bringing a mine into production can be both complex and highly variable based on factors like the type of mine, the geology of the deposit, and the proposed location of a project. From a regulatory perspective, these factors can have significantly different impacts on human health and the environment. As a result, the regulatory requirements imposed on mine operators differ based on the unique needs and circumstances of each project. This means that the mine permitting process inherently varies to a much greater degree than for many other kinds of projects that policymakers are targeting via permitting reform efforts, such as transmission or surface energy projects, which generally have far more uniform factors.

Broadly speaking, the mine development process (Figure 1) consists of three main stages: securing land access, obtaining plan approvals, and acquiring operational permits.

Figure 1: Three main stages of the regulatory process of bringing a mine into production.

Mine operators must make arrangements to access and use the locations they hope to develop. If a mineral prospect sits on private land, arrangements become a matter of private contract law with the landowner. If the prospect is located on public land, the mine operator must file a claim with the state or federal land management agency holding jurisdiction (the lead agency). At the federal level, for example, the Bureau of Land Management (BLM) and the U.S. Forest Service (USFS) administer the majority of public lands (GAO-20-461R, 2020; CRS R42346, 2020). The specific process for filing a claim varies among lead agencies, but generally involves specifying the location of interest, declaring the mine operator’s proposed actions, and arranging financial compensation for the use of public lands.

For federal lands in particular, specific terms of a filed claim are dependent on the type of targeted mineral, which falls under one of three classifications (Table 1).

Table 1: Three statutory classifications of minerals extractable on federal lands.

A key aspect of the claim-filing process involves the mine operator’s declaration of proposed actions. This declaration dictates lead agency responsibilities, dependent on whether the actions will cause either minimal or substantial disturbances to the surrounding environment. Definitions vary across lead agencies, but most typically consider exploration activities like rock core sampling, for instance, to constitute minimal disturbances that require only the submission of basic notices. Agencies generally consider full-scale mining operations, however, as substantial disturbances that require plan approvals for both mining and reclamation activities. Such activities also require financial assurances in the form of bonding to guarantee that the cost of reclamation after mine closure is covered instead of becoming a public liability.

Submission of mine and reclamation plans to a federal agency necessarily triggers the environmental review process outlined by the National Environmental Policy Act (NEPA). The NEPA review process itself does not dictate a particular agency decision regarding the proposed plan. Instead, it declares the nature of any potential environmental impacts associated with the mine operator’s proposal and informs the lead agency of any deficiencies that fail to meet the standards of relevant laws and regulations such as the Clean Air Act, Clean Water Act, or Endangered Species Act. The agency can then require the mine operator to revise its mine and reclamation plans to address those deficiencies.

Beyond overall plan approvals, the mining process involves a number of physical operations that may each require its own permit. Therefore, there is no single permit required to bring a mine into production, but rather multiple potential permits that may be required depending on operational needs. Because these operations are not unique to mining, no single agency grants all of the corresponding permits. Instead, these permits originate from different cooperating agencies across all levels of government. Examples of common operational permits include:

• Explosives handling (federal, state; 27 CFR 555);

• National Pollutant Discharge Elimination System (federal, state; 40 CFR 122);

• Air quality (federal, state; 40 CFR 70-71); and

• Building permits (local).

Time Requirements Imposed by the Regulatory Process

Up to the submission of any plans for approval, the claim filing process is mainly an administrative responsibility on the part of the mine operator, which must expend some effort to prepare documents. This process may be complicated by redundancies imposed by state and local authorities. However, this stage is not typically associated with much of a regulatory burden or time requirement. For example, BLM regulations merely require mine operators to file claims within 90 days of physical staking in the field (43 CFR 3830.91).

The process of obtaining operational permits imposes a more substantial burden on mine operators. However, individual permit approval times do not accurately reflect the overall lead time required for a mine operator to obtain all approvals and commence operations, given that the combination of required operational permits will vary from project to project, with operators able to pursue many permits simultaneously. Emphasizing these caveats, we show in Figure 2 a selection of anticipated approval times for common operational permits issued by the state of Nevada (NBMG, 2018). While public data regarding actual approval times achieved in practice is sparse, these stated ranges provide a reasonable representation of individual permit timeframes.

Figure 2: Anticipated approval times for select operational permits

For the purpose of assessing time requirements, NEPA reviews serve as a reasonable proxy for the overall time required to secure a decision in the plan approval stage.

Three types of review exist within the NEPA process, varying in stringency depending on the potential for significant impact. A Categorical Exclusion (CE) suffices if the proposed plan falls under various congressional designations, or falls within categories of actions that lead agency officials have already determined pose no potential for significant impact based on relevant prior reviews. If lead agency officials determine that the potential for significant impacts from a proposed plan is unknown, however, then the NEPA process requires an Environmental Assessment (EA), resulting in either a Finding of No Significant Impact or the more comprehensive Environmental Impact Statement (EIS). Alternatively, an EIS may be directly required from the outset of a project if potential for significant impact from a proposed plan is initially apparent.

The federal Council on Environmental Quality (CEQ) estimates that approximately 95% of government-wide NEPA reviews result in CEs, less than 5% in EAs, and less than 1% in EISs (GAO-14-370, 2014). By comparison, Fleischman et al. (2020, p. 409) report that, for mining-related reviews conducted by the USFS from 2005 to 2018 (categorized as “Minerals & geology”), 70.8% resulted in CEs, 26.0% in EAs, and 3.2% in EISs. The higher percentage of EAs and EISs for mining-related reviews indicates how mining more frequently involves activities with potential for significant impacts or scenarios where the potential impact is difficult to determine.

The CEQ has compiled a list of completion times for all EISs produced between 2010 and 2018 (CEQ, 2020). Figure 3 shows the EISs completed by the BLM and the USFS after filtering specifically for mining-related projects (n=37). In this case, “completion time” indicates the time between the Notice of Intent and the Record of Decision—publicly released documents constituting the beginning and end of the EIS process.

Figure 3: Completion times for Environmental Impact Statements

Average and median completion times for mining-related EISs are 4.33 and 4 years, respectively. These times do not include any work that mine operators or lead agencies may perform after plans are submitted for review, but before the Notice of Intent is published. Therefore, individual EIS completion times presented here should be considered conservative. For comparison, Fleischman et al. (2020, p. 412) report respective USFS median completion times for CEs and EAs of 0.29 and 1.07 years. While these times are agency-wide and not specific to mining, they do indicate that completion times generally increase with the stringency of the review type. Therefore, even the range of completion times in Figure 3 may overstate NEPA approval timelines in practice since the dataset does not account for many lower-stringency, faster reviews. Typical completion times experienced industry-wide are thus likely lower than those shown in the figure, which cover EISs specifically.

EIS completion times range from 1.4 to 11 years—a notably large degree of variation. However, the quickest 75% of reviews are concluded between 1.4 and 5.7 years. Projects with particularly long EIS completion times skew the overall average, with the longest 25% of reviews dispersed across a long tail. As such, cases with particularly long EIS completion times are not representative of the more typical process timeframe.

Recommendations for Increasing Efficiency of the Regulatory Process

Members of the American public hold federal, state, and local processes to the expectation that measures to increase mine permitting efficiency should not threaten underlying environmental health, public rights, or social welfare. In other words, mine permitting discussions must acknowledge that some delays to projects are warranted to ensure such protections, while other delays are truly unnecessary and avoidable.

Public involvement and litigation, for instance, may add significant amounts of time to plan approvals, but they both embody cornerstones of participatory democracy and help uphold principles of environmental justice. Protection of endangered species or cultural heritage sites can severely complicate environmental reviews, yet they promote holistic approaches to public land management and conservation. In contrast, slow agency response times due to internal disorganization or unclear priorities represent obviously needless delays.

We target such unambiguous procedural inefficiencies and propose recommendations to improve and address these clear areas for regulatory system improvement.

1. Minimize Plan Approval Requirements by Completing More Environmental Work Upfront

As established above, NEPA review completion times are at least comparable to approval times for operational permits, and the NEPA approval timeframe often constitutes the largest fraction of the entire regulatory process. NEPA reviews are also likely still required for projects occurring on state or private land, even if a federal agency has a more limited or indirect role such as granting operational permits, funding, or incidental land access (40 CFR 1508.1(q)). As such, NEPA reviews are a promising focus for efforts to increase efficiency of the overall permitting process. In particular, policymakers can improve the lead times of specific projects by prioritizing preemptive programmatic reviews that occur well before mine operators submit plans for approval.

However, many commonly discussed approaches, including those contained in the recently passed Fiscal Responsibility Act of 2023, have focused on forcibly shortening timelines instead of promoting regulatory efficiency (H.R. 209, 2023; H.R. 2637, 2021; H.R. 2604, 2021; Building American Energy Security Act of 2023; Fiscal Responsibility Act of 2023). These types of approaches employ hard deadlines or “shot clocks” for NEPA reviews, page limits on EISs and EAs, and limits to the windows during which stakeholders can initiate litigation against a proposed project. Policymakers should bear in mind that these stipulations do little to address underlying obstacles to accelerated regulatory processes and delays that mine projects face. Such crude measures risk disregarding the inherently variable nature of the mining industry, causing unnecessary environmental impacts through substandard, rushed reviews, and encroaching on opportunities for constructive public feedback.

The wide range of EIS completion times shown in Figure 3 highlights the variability inherent to permitting substantively different kinds of mine projects. The dataset and report from which these times are taken do not provide causes for each of the individual times, but almost certainly include multiple simultaneous factors such as project complexity, environmental sensitivity, agency capabilities, and public involvement. Variation in completion times often partly results from the need for NEPA reviews to respond to the particular nuances of a given project, which may warrant either greater expediency or caution as appropriate.

The Rosemont Copper project slated for operation in the Coronado National Forest near Tucson, Arizona, is a prime example. In this case, the USFS published its Notice of Intent in March 2008 and began the EIS, which was complicated by the need to also revise the 1986 Coronado forest plan. The USFS released the EIS in December 2013, which would have constituted an EIS completion time of roughly six years (USFS ROD, 2017; ACOE ROD, 2019)—on the high end, but still within the quickest 75% of reviews shown in Figure 3. However, issues raised during the subsequent public comment period regarding impacts to wildlife and local aquatic systems compelled the USFS to review newly provided information, which in some cases questioned the appropriateness of baseline measurements used in the EIS. These concerns obligated preparation of supplemental reports, which were released in 2015 and 2016 (USFS SIR, 2015; FWS BO, 2016). The USFS released the final Record of Decision in June 2017 and approved Rosemont Copper’s required plan revisions in March 2019 (CRS IF12359, 2023). However, subsequent lawsuits continue to contest wildlife and water impacts and have also challenged the legality of the project’s complex arrangement of public and private claims. The lawsuits are still being resolved in 2023.

Such adaptability actually represents a critical aspect of an effective review process, as promoted by past CEQ guidance (CEQ, 2012), but would be obstructed by restrictions like deadlines or page limits—neither of which can help resolve (and may even exacerbate) underlying issues like understaffing. Requiring all NEPA reviews, regardless of project characteristics, to provide the same breadth of environmental oversight in an arbitrarily shorter amount of time may simply force land management agencies to either allow substandard plans to proceed, automatically deny substandard plans by the deadline date, or allow mine operators to opt for an extension. Subsequent agency-mandated revisions or litigation may then easily consume any potential time saved on initial reviews (Ruple and Race, 2019; Ruple and Capone, 2016).

Furthermore, the hard deadlines at the center of recent policy discussions, also included in the Fiscal Responsibility Act of 2023 (FRA), are similar to those already outlined in CEQ regulations, such as page limits (40 CFR 1501.5(f)-1502.7) or deadlines of one year for EAs and two years for EISs (40 CFR 1501.10). The fact that these goals are already imposed on regulatory agencies but are clearly often not achieved in practice calls into question the effectiveness of reiterating them at the statutory level. Granted, the regulations in effect as of the FRA’s passage allow for extensions with internal agency approval that effectively make the limits more like guidelines. Yet the language in the FRA leaves the time and page limits susceptible to the same possibility. Page limits, for example, can be exceeded by simply moving content to appendices and time limits can be extended merely in “consultation with the applicant”. The FRA does provide options for applicants to appeal missed deadlines in court, but revised schedules appear to be at the court’s discretion and are still stipulated by what is practicable for the agency to accomplish. As a result, it is not only unclear how realistic these hard limits are, but also how they will actually be enforced in practice. It is then likely that extensions will be pursued as a regular practice, which may be even further complicated by the involvement of court procedures to achieve what was previously resolved between agencies and applicants.

In contrast to deadlines or page limits, maximizing the amount of environmental review that can be completed ahead of specific projects maintains a firm level of regulatory stringency while reducing the burden imposed on mine operators. This is possible through a practice known as “tiering”, in which reviews completed for project-specific proposals leverage the relevant findings of broader, programmatic-level reviews previously completed for land use planning purposes such as baseline measurements, impact studies, and resource or wildlife inventories (40 CFR 1501.11). The BLM has successfully reduced oil and gas drilling permit review times by emphasizing this practice (GAO-20-329, 2020). Granted, reviews completed at the programmatic level often take longer than their project-specific counterparts (Ruple and Capone, 2017). However, this additional time is spent beforehand and independently of any mine operator proposal and would not delay individual projects.

Tiering is already available to land management agencies, but Secretarial Orders, which have been used in the past to provide agency-wide guidance on adjusting policies, could encourage their increased use for mineral resource development (Order No. 3324, 2012; Order No. 3285-1, 2010; Order No. 3283, 2009). Similarly, agencies could also expand their list of administrative or regulatory CEs to increase CEs’ coverage of certain site-specific actions. For example, the BLM allows minor modifications to mine plans to be covered by CEs, but only for leasable minerals and not for locatable minerals (US DOI, 2020). Expanding the list of covered actions could allow these types of more minor, administrative scenarios to proceed much more efficiently.

Expansion of CEs by no means represents a bypass of NEPA reviews. A considerable amount of effort may be required to produce a CE, including consultation with industry experts, tribal governments, or other agencies, input from public comments, findings from previous reviews, and even conducting impact studies (CEQ, 2010). Rather, efforts to expand CEs constitute an upfront effort to identify scenarios that agencies would otherwise eventually rule have no potential for significant impact at the project-specific level, thus saving mine operators time.

Benefits from tiering or any upfront planning would increase with the corresponding level of detailed information used by land management agencies. As such, revising regulations that guide land use planning to specifically acknowledge critical minerals as a class of mineral resources could greatly facilitate opportunities for tiering. Currently, critical minerals are only separately defined by the U.S. Geological Survey with respect to strategic end uses and supply chain vulnerabilities (Energy Act of 2020). Meanwhile, BLM and USFS guidelines for creating land use plans are written with respect to locatable, leasable, and salable minerals (BLM Handbook H-1601-1; Forest Service Handbook 1909.12). These classifications do overlap the criteria for critical minerals, leaving critical minerals covered by land use plans in practice, but not as precisely as if regulations acknowledged them explicitly. Areas with potential for critical minerals development would receive greater recognition in land use planning if existing regulations did not group them within the much broader classifications. We expand upon this idea in the next section.

Ideally, upfront planning would strive to establish predefined areas suitable for critical minerals development down to the claim scale, effectively preempting mine operator proposals and performing as much environmental work as agencies can possibly conduct without considering unique aspects of a mine operator’s plans. Regulations outlining coal mining provide a precedent for this process using a logical mining unit (LMU), a precisely defined spatial unit used for administrative purposes (43 CFR 3487.1). Many of the motivations for LMUs incorporate unique considerations for mining coal such as competitive bidding, leased tracts, and the surface area-intensive nature of coal extraction. In concept, though, analogous units could be established for hardrock mining more broadly.

Finally, mapping initiatives such as those funded by the Infrastructure Investment and Jobs Act and the Inflation Reduction Act can provide considerable support to land use planning efforts by increasing the detail and volume of the information agencies have at their disposal (USGS, 2019). Programs that involve drilling or airborne geophysical surveys, for example, can not only aid the discovery of new deposits, but help delineate the extent and nature of known deposits that may eventually be incorporated into land use plans. Not only would such efforts help agencies focus on areas appropriate for critical minerals development more precisely, but they may also provide information on deposits that may pose reduced risks for significant environmental impacts. For example, surveys can assess the potential for acid mine drainage or determine if the deposit could be appropriate for underground mining versus surface mining. Policymakers should not discount the many benefits from continuing to fund—and expand—such initiatives in the future.

2. Create a Statutory Classification Specifically for Critical Minerals Analogous to Salable, Leasable, and Locatable Minerals

The measures considered in the previous section outline improvements available to land management agencies in an administrative or regulatory capacity. However, Congress could take these improvements a step further by implementing changes at the statutory level.

Namely, the creation of an additional statutory classification that is separate from but analogous to salable, leasable, and locatable minerals would allow land management agencies to prioritize critical minerals use over competing uses such as timber or grazing. Otherwise, critical minerals development will remain more susceptible to limitations imposed by the multiple use mandates exercised through the Federal Land Policy and Management Act of 1976 (FLPMA) for the BLM and the National Forest Management Act of 1976 (NFMA) for the USFS, among others.

In policy terms, prioritization could simply involve delineating locations with good potential for critical minerals development with few potential competing uses, but could go as far as creating special designation areas that stipulate their exclusive use. This is not to say that government-wide land management policy should comprehensively prioritize critical minerals development over other potential resources, superseding multiple use mandates. Rather, while some individual areas would be created at the expense of other resources, land management agencies could consider locations that are uniquely suitable for critical minerals alongside the potential to compensate for lost resources elsewhere in other regions under their jurisdiction. Special designations for critical minerals development would provide the ability to delineate these areas, not mandate their creation. Needless to say, special designations should not supersede important environmental designations such as Areas of Critical Environmental Concern or Wilderness Study Areas (BLM, 2023).

A separate statutory classification for critical minerals would also allow legislators to more elegantly address a number of other considerations that are at the center of current policy discussions in ways that compartmentalize the policy impacts to critical minerals alone, without needing to consider whether they should apply to the entire mining industry. In particular, attaching provisions to a separate classification for critical minerals would avoid hurdles involved in considering whether to repeal, replace, or revise the General Mining Law of 1872, which critics note is lacking modern provisions that the Materials Act and the Mineral Leasing Act consider (E&E News, 2022; CAP, 2019; Earthworks, 2023). Valuable improvements upon the General Mining Law that a distinct classification for critical minerals could address include the following.

Establishing Royalties:

The General Mining Law does not require royalties for production of locatable minerals on federal lands, whereas salable and leasable operations are required to make some sort of market-price-based or production-based payment. Instead, mine operators are only required to pay various maintenance fees associated with their claim, which range from $165 to $225 per claim (BLM, 2023).

New legislation could create royalty schedules tailored for specific critical minerals as appropriate, given market conditions and supply chain priorities. Schedules can be adjustable over time and be applied to net or gross royalties for mine production or smelter returns.

Expanding Provisions for Environmental Justice:

Tribal consultation obligations are already addressed by a number of laws including NEPA, but could be clearly reiterated with respect to critical minerals development. The Infrastructure Investment and Jobs Act established a fund to be distributed to states and tribes for the remediation of legacy hardrock mines abandoned before basic safeguards such as the Surface Mining Control and Reclamation Act of 1977 were enacted. Funding, however, was made available by a one-time appropriation. Legislation could provide for additional funding in a number of forms, such as a recurring proportion of annual royalties (if established) or additional one-time appropriations.

The Environmental Protection Agency’s Good Samaritan Initiative is a program that allows private entities to voluntarily contribute to legacy remediation efforts. However, concerns over potentially inheriting liabilities under the Clean Water Act and the Comprehensive Environmental Response, Compensation, and Liability Act have deterred participation (WGA, 2022). Such concerns also limit the legacy sites’ potential for alternative uses such as clean energy infrastructure or repurposing of tailings. Legislation could clarify such liabilities and expanded indemnities for contributors to better incentivize participation.

Permanently Outlaw Patenting for Critical Mineral Claims:

The General Mining Law allows mining claims to be patented, meaning they can be purchased outright from the federal government by mine operators. Claims have not been patented in practice since 1994, solely due to claim patenting restrictions included in appropriation bills. New legislation could explicitly outlaw patenting specifically for critical mineral claims, thus avoiding the need to continuously renew temporary restrictions.

Requiring Disclosure of Production Data:

The General Mining Law does not require disclosure of production data for mines producing locatable minerals on federal lands, which leaves gaps in important datasets informing supply chain and energy policies for minerals such as bauxite (aluminum) and lithium (CRS R46278, 2020). New legislation could explicitly require disclosure of production data specifically for critical minerals.

Implementing Foreign Investment Restrictions:

The General Mining Law allows foreign entities to file claims and operate mines on federal lands as long as they are organized as a U.S. subsidiary. New legislation could restrict foreign entities from participating based on their environmental and labor records and considerations regarding economic and national security.

Stipulating End-Use Designations:

New legislation could stipulate end-use designations for domestically produced critical minerals using a variety of mechanisms such as absolute or percentage-based export limitations, incentives or requirements that promote supply contracts with domestic manufacturers or manufacturers in allied or partner countries abroad, or purchasing of domestically sourced minerals for dedicated national stockpiles.

3. Define the Data Metrics of an Efficient Project, Track Them Consistently, and Compile Them Publicly

Data quality issues have confused discussion of time-saving measures and spawned inconsistent and poorly contextualized statistics that have left policymakers contesting how long the regulatory process actually takes (NMA, 2015; Reuters, 2022; ENR, 2022; ENR, 2023). In general, capable data systems should consistently define, track, and compile metrics for every mining project. In addition to key milestone dates and other quantitative figures, records should include qualitative notes to contextualize causes of any delays, such as whether a delay resulted from an extension request or an avoidable bureaucratic factor.

Current data systems, however, lack sufficient detail to meet this standard. Recent efforts by the BLM to overhaul data platforms are promising (GAO-14-370, 2014), but highlight major reporting gaps. For example, NEPA milestone dates are tracked government-wide for EISs, while equivalent data for EAs and CEs remains sparse, restricting insight into how long lower-stringency reviews actually take and how often agencies conduct them (CRS RL33267, 2007; 40 CFR 1506.10). Qualitative explanations for delays are currently sporadic and depend on specific agency practices. Such information gaps not only limit accurate diagnosis of areas of true concern, but also inhibit performance assessment following implementation of any policy changes.

Inconsistent formatting and access also limit the usefulness of what data is actually captured. For example, the USFS uses its Planning, Appeals, and Litigation System to track information related to NEPA reviews, but this system is not publicly accessible and is not specific to mining (Fleischman et al., 2020). Assembling mining-specific record-keeping resources is challenging given that individual processes are managed by different agencies, but better synthesis can prevent stakeholders from drawing inaccurate conclusions based on piecemeal datasets. Considering the compelling public interest, cross-agency annual reports summarizing key metrics of the permitting process would make a valuable contribution to ongoing policy discussions. The Department of Energy’s Lessons Learned Quarterly Report series is a good example of a department-wide effort that an appropriate agency such as the BLM could consider in a mining-specific counterpart (DOE LLQR, 2013). Suggested key metrics for such a report are the following:

Key dates:

• EIS milestones: plan submission, Notice of Intent, draft EIS, final EIS, Record of Decision, plan approvals;

• EA milestones: plan submission, Finding of No Significant Impact (or Notice of Intent for subsequent EIS), plan approvals;

• CE milestones: plan submission, Determination of NEPA Adequacy, plan approvals;

• Applications and approvals of federal, state, and local operational permits; and

• Mine operation commencements.

Other considerations to be noted:

• Any tiered NEPA review used and an estimation of time saved for the current project;

• Avoidable delays caused by lead agencies, cooperating agencies, or mine operators;

• All cooperating agencies involved; and

• Numbers of plans submitted, processed, and pending approval by each lead agency.

4. Optimize Agency Performance and Minimize Operator-Induced Delays

BLM and USFS officials have noted challenges stemming from mine operator practices that can delay production by weeks to years (GAO-16-165, 2016). Operator practices—such as voluntary pauses for business reasons, elective changes to mine plans after submission, or difficulties in securing bonding requirements—can all delay projects, but for reasons incurred entirely at the mine operator’s discretion. Additional support to mine operators would mitigate avoidable operator-induced delays, particularly those stemming from low-quality mine plan information or a general misunderstanding of regulatory requirements. For example, BLM and USFS officials have reported successful reductions in operator-induced delays by holding pre-plan submittal meetings with mine operators, but guidance on this practice is sparse, with implementation varying across regions (GAO-16-165, 2016).

Agency cooperation to adopt consistent regulations where possible would also help reduce mine operator confusion. The USFS, for example, launched efforts in 2018 to adopt BLM regulations, an appropriate direction for alignment given the BLM’s role in managing the federal mineral estate (USFS, 2018). Agencies should also not discount the effectiveness of up-to-date, easily accessible reference materials and modernized public-facing websites such as the federal Permitting Dashboard, which help reduce mine operator dependence on correspondence with lead agencies on minor issues.

Lead agencies have noted issues in the past with understaffing or gaps in relevant staff experience and training that limit their ability to provide support to mine operators and to complete their own agency functions in a timely manner. The Department of Interior and the USFS, for example, have struggled since 1990 with redirection of discretionary funds and personnel during periods of high wildfire activity, disrupting operations and reducing capacity to complete NEPA reviews, despite eventual reimbursement of discretionary funds (CRS R43872, 2019; GAO-04-612, 2004; Ruple et al., 2022). The Inflation Reduction Act provides millions in funding for the USFS and various Department of Interior agencies including the BLM, which will greatly augment agency capacity (White House, 2023). However, given the act’s focus on transmission easements and infrastructure projects, and with specific funding allocations still under deliberation, increased support for mine permitting capacity is not yet a given. Policymakers should therefore prioritize support for land management agencies to help improve overall efficiency.

Finally, long-term goals for improved agency function could aim to provide accountable cross-agency case workers dedicated to guiding mine operators through the entire permitting process, rather than advising on issues solely related to their own agency. Reorganizing the existing regulatory apparatus to create a single, centralized authority dedicated to all mining-related matters would be unnecessarily complicated and challenging, but efforts to establish proactive, project-specific liaisons functioning beyond the traditional expectations of a lead agency could produce positive results with far simpler implementation.

Conclusion

Policymakers and the American public should recall that while expanding domestic critical resource development may create jobs, foster economic activity, and improve global commodity prices, such efforts do not necessarily translate into greater domestic supply chain resilience. For example, without any stipulations on downstream industrial use, domestic mine products could easily flow overseas for processing or for use in manufacturing, leaving U.S. industries still highly dependent on imported materials. Nor does any form of mineral extraction come without environmental risks. Thus, critical minerals policies should ensure that claimed benefits to Americans and U.S. national interests actually materialize in practice, especially if those policies include public sector support for industry.

Our proposed separate statutory classification for critical minerals would facilitate specific end-use designations that could be tailored to best meet national needs. For example, while domestic mine operators and American manufacturers regularly negotiate supply contracts today (Ford, 2022), policymakers could explicitly require that critical minerals producers agree to supply domestic industries. Alternatively, legislation could seek to develop national stockpiles through regular government purchases. However, the Strategic and Critical Materials Stock Piling Act of 1939 currently limits use of the various stockpiled industrial materials to national defense needs, requiring invocation of the Defense Production Act (Presidential Determination No. 2022-11). A new statutory classification for critical minerals would permit the creation of stockpiling programs specifically for national economic priorities, offering greater flexibility in policymaking. Simultaneously, federal spending efforts can prioritize the domestic development of downstream mineral processing and refining sectors, which represent an enduring supply chain risk for mineral products even after they have left the mine.

Furthermore, we emphasize that accelerated mine permitting times can only allow domestic production to increase; whether policy changes result in actual production increases depends on market conditions and operational decisions by mining companies. The 2023 pause in construction of the fully approved Jervois Idaho cobalt mine due to low market prices is a timely example (E&E News, 2023). Regulatory burdens may not be the primary or only limiting factor governing domestic natural resource development. Cutting mine permitting time frames in half by no means guarantees a doubling of domestic production. Given that mines often have lifetimes of multiple decades, improvements to mine permitting timeframes, likely on the order of two to four years, will have only a limited effect on long-term, overall critical minerals production capacities. Thus, policymakers should be prepared for project development to fall short of aspirations even with accelerated permitting processes in place.

Lastly, policymakers must remember that increasing domestic production is only one of many promising solutions for ensuring U.S. critical minerals security. American mineral deposits are considerable but not comprehensive or infinite, and the United States is therefore unlikely to become a net exporter or even a modest producer of every critical mineral. Supply chain independence is an unrealistic and unattainable ideal.

In pursuing a resilient critical minerals supply chain, policymakers should not characterize imports as undesirable on principle. Supply chain coordination with international partners can help the federal government focus more efficiently on a broader range of strategic policy areas, from increased domestic mineral exploration to import infrastructure, foreign free trade agreements, mineral processing and recycling technologies, and end-product manufacturing.

Reviewers: Ginny Brannon, Forrest Fleischman, and Walt Afonso.