Time to Change a Broken System
Great news. On June 2, 2023, Congress took a major step in addressing the issues surrounding the permitting process for mining projects in the U.S. The permitting reforms that were approved could provide resource development companies like ours more confidence in the federal permitting process and most importantly, a defined timeline.
A growing awareness of the dangers of reliance on China, Russia and other unpredictable and unreliable nations for critical minerals and materials was the driving concern behind these reforms. While both the Biden and Trump administrations acknowledged the risk this dependence represents to national security, they had yet to take any meaningful action to help address the permitting process issues that were hindering any near-term solutions. Until these measures were approved, we were all subject to an antiquated system that was neither effective nor efficient and resulted in commonly experienced lengthy delays and expensive and unreasonable demands. Fortunately, that is changing.
While the U.S. can be a source for many of the critical minerals essential to advanced and green technologies – Bear Lodge in the case of rare earths – companies like ours face a federal National Environmental Policy Act (NEPA) review process that can routinely take seven to 10 years or more. Complicating this lengthy process was the ability of the oversight agencies to conduct overly broad and imprecise analysis as part of the process. The reform sets limits for both the time and scope of the review process without diminishing the protections provided under NEPA.
There were three major components to the reform. First, it imposes timelines for new project reviews. An Environmental Assessment (EA) is expected to now take one year, and an Environmental Impact Statement (EIS) will now take two years. It also provides companies with recourse if the work is not completed by the federal agency in a timely manner. Second, it has a provision for companies to prepare and submit their own EAs or EISs. All the same work would be done but completed by the proponent company and then submitted to the oversight agency for review. In areas where several projects are being permitted and agency resources are limited, this will save considerable time in the process. Lastly, the reforms put in some limitations on the concept of “reasonably foreseeable” when applied to the impacts of a project. This should help keep reviews focused on a more reasonable spectrum of potential impacts.
These changes will allow companies like ours to have a better expectation of the process and reduce significant costs resulting from lengthy delays. Most importantly, it will help bring the production of these essential minerals to the nearer term, lessening our country’s dependence on others and assuring we continue to be a leader in evolving technology. While more work on mine permitting reform needs to be done, this is a great start.
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