The “White Hill” at Rhyolite Ridge in Esmeralda County, Nevada. (Photo courtesy Ioneer)
A bipartisan effort to give mining companies more legal rights to federal lands and speed up the permitting process did not make it past a contentious five-week lame duck session, dashing hopes to reverse a major court ruling adopting a stricter interpretation of federal mining law, at least for the time being.
In the final weeks of the 119th Congress, before the 120th was sworn in early this month, the Energy Permitting Reform Act of 2024— a mining reform package shepherded by former independent U.S. Sen. Joe Manchin— fell apart despite a strong bipartisan desire to implement permitting reform.
“It’s a shame that our country is losing this monumental opportunity to advance the commonsense, bipartisan permitting reform bill that has strong support in the United States Senate,” said Manchin, in a statement last month.
Manchin, who spent more than a year crafting the bill, blamed its failure to advance on Speaker Mike Johnson and Republican House leadership who stalled the bill after House priorities “were watered down or ignored,” said House Committee on Natural Resources Chairman Republican Rep. Bruce Westerman in a statement.
Westerman had been pushing to add his legislation to reform the National Environmental Policy Act (NEPA), the bedrock environmental law that requires reviews of federal projects.
The bill made it out of the Senate Energy and Natural Resources Committee in December with support from Manchin, the committee chair at the time, and the ranking Republican on the panel, Sen. John Barrasso of Wyoming.
“Senators Manchin and Barrasso’s bill, which only passed out of committee and not the full Senate, addressed some reforms but needed the House NEPA provisions to strengthen it,” Westerman said in a statement on the bill’s demise.
The permitting reform bill had also included provisions from the Mining Regulatory Clarity Act — a bill pushed by Nevada’s lone congressional Republican. That legislation was explicitly crafted to reverse a legal precedent created by a consequential 2022 appeals court decision that restricted mining companies’ right to dump mining waste on federal land.
Western legislators have led the effort to reverse the 9th US Circuit Court of Appeals “Rosemont decision” which found that the federal government erred when it approved the Rosemont Copper Company’s plan to dump mining waste on federal land where the company could not prove they had a valid mineral claim.
Although the Mining Regulatory Act passed the House, where Amodei was its sponsor, in May, it failed to pass in the Senate, so will need to be reintroduced in the current Congress.
Amodei’s office indicated he plans to reintroduce the Mining Regulatory Clarity Act in the current Congress in order to reverse the Rosemont decision.
Although Republicans gained control of the Senate in last year’s elections, any mining reform introduced in the new Senate will still need a 60-vote threshold to move forward, which means passage could still be difficult, even given the support of Nevada’s Democratic Sens. Catherine Cortez Masto and Jacky Rosen.
In a statement, Cortez Masto said she would continue to push for permitting reform and the Mining Regulatory Clarity Act in the Senate.
Westerman and Democratic California Rep. Scott Peters have also signaled plans to put together their own permitting reform legislation that centers on House priorities next Congress.
In addition to reversing the Rosemont decision, the bill would have also shortened the timeline for judicial review of energy and mineral permitting projects while accelerating federal decision-making for leasing of energy projects on federal lands.
Several mining developers in Nevada have had to grapple with the aftermath of the Rosemont decision in 2022. The decision essentially banned a long-standing practice permitted by the Bureau of Land Management in an industry that has not faced major policy shifts in decades.
Prior to the federal appeals court decision, mining companies used neighboring federal lands without valuable mineral deposits for mining related purposes – such as waste rock disposal or running power lines – without issue for decades.
Failure to pass legislation addressing the Rosemont decision will likely also add more uncertainty to the state’s many proposed lithium mines in particular, after President-elect Donald Trump’s vow to claw back unspent Inflation Reduction Act funding that has been tapped to help finance the lithium mining industry.
Several Republicans have said they are open to curtailing the Department of Energy’s Loan Programs Office, which has committed about $37 billion in loans or loan guarantees for energy and mining projects under the Biden administration.
The Inflation Reduction Act has awarded billions in funding for Nevada mining projects. In October, the DOE loans program finalized a $2.3 billion loan to Lithium Americas for its Thacker Pass mine in Nevada. Two other DOE loans for Nevada clean energy transition projects are still in the conditional stage – a $700 million loan for Ioneer’s Rhyolite Ridge lithium mine, and $2 billion in financing for Redwood Materials’ battery component recycling and production facility.
Ioneer and Redwood Materials’ did not respond to requests for comment on the fate of their conditional loans.
The Rosemont decision followed the passage of the Inflation Reduction Act in 2022, which included provisions to incentivize mining companies to develop mining projects for critical minerals through the Advanced Manufacturing Production Credit. Many of the critical minerals designated by the Biden administration, such as zinc, manganese, and lithium, are integral to electric vehicle batteries and the renewable energy transition.
But the future of those credits is also uncertain under a Trump administration. Republicans have also vowed to cut the deficit while also extending the 2017 Tax Cuts and Jobs Act. To offset costs, IRA tax incentives, including manufacturing credits, could be on the chopping block.
Significant clean energy investments in Republican-leaning states, could make outright repeal of the IRA unlikely, however, a Republican controlled White House and Congress could use the Congressional Review Act to review and potentially overturn regulations issued by federal agencies including the Advance Manufacturing Production Credit, according to the analysts at the Brookings Institution.