Transition to Green Energy Economy will Require Mining Reform

By Hal Shepherd

The hard rock mining industry is the single largest source of toxic waste in the United States and has contaminated an estimated 40% of Western watersheds. As a result, throughout its 200-year-plus history, over 12,000 miles of rivers and streams and 180,000 acres of lakes in the United States have been contaminated by mining. 

Yet, despite the virtually unregulated destruction metal mining has wrought on cultural resources, wildlife habitat, water resources, sacred areas and other critically important lands across the West and Alaska, mining companies pay nothing to extract minerals from public lands across the West and Alaska, unlike the oil, gas, and coal industries. Similarly, as companies central to the transition to a green infrastructure are preparing to produce millions upon millions of lithium-ion batteries and other minerals necessary for the transition to clean energy, it has become imperative that water resource protection regulations keep pace with the enormous up-tick in mining for such minerals. According to Center for Biological Diversity attorney Allison Melton, 

For far too long, mining companies have had free rein to decimate lands of cultural importance to tribes and public lands at enormous cost to people, wildlife, and these beautiful wild places of historic and cultural significance… Reforming these rules will prevent more damage, help us transition to green infrastructure, and leave a livable planet to future generations.

As a result of the threat mining presents to the nations water and subsistence resources and the projected increase in mining for critical minerals, on September 16, tribal and conservation organizations filed a rulemaking petition with the U.S. Department of the Interior which is responsible for regulating mining on public lands calling. In fact, the mining laws are so archaic, that both congress and DOI, itself, has identified, a need to update these laws. 

The lack of unregulated mining at the federal level has particular consequences for Alaska, where Governor Dunleavey who has never met a mining project that he dosen’t like no matter what the cost to water and subsistence resources, has proposed to fast track and limit environmental analysis of the permitting processing as well as privatizing the state’s water resources to make it more difficult for tribes and the general public to protect rivers and streams from mining impacts. For Alaska, there is no better time to modernize federal mining laws - laws that haven’t been updated since Ulysses S. Grant was president, and have allowed reckless pollution by international mining companies, leaving taxpayers holding the bill, threating traditional practices of the Indigenous communities and violating principals of environmental justice. 

According to Doug Katchatag, president of the Norton Bay Inter-Tribal Watershed Council and resident of the Native Village of Unalakleet, such policies, combined with the lack of adequate regulatory standards, is a serious threat to his community’s way of life:

Our community is entirely dependent on subsistence from the North, Unalakleet and Nulato rivers. Yet, due to a combination of climate change and commercial by-catch, these rivers had dismal returns for King, silver and chum salmon this summer. People are scared. Basically, if virtually unregulated mining, as under the current law, is allowed in these watersheds it will combine with these other impacts to push our salmon runs into collapse. This threatens the very existence of our community.

The petition proposes revisions to the mining regulations including clarifying that the Bureau of Land Management (BLM) must use its authority to protect tribal and cultural resources and values, wildlife, and water quality and quantity, requiring the BLM to verify mining rights, closing loopholes that allow the mining industry to escape public review and calling for consultation with local tribes and governments.  

Another important step towards mining reform in Alaska occurred after the U.S. Environmental Protection Agency (EPA) recently, announced its intent to resume work to establish protections for the Bristol Bay watershed that could ensure the proposed large-scale open-pit Pebble Mine is not allowed to devastate the region’s waters and fishery resources. Under the Biden administration, the EPA says it intends to restore the process that president Obama initiated to protect the world’s largest sockeye salmon run by effectively blocking the construction of the massive and controversial gold mine

In general, the agency would use its authority under section 404 of the Clean Water Act to prevent the area’s waters from being filled in or contaminated by material from the proposed mine. The section 404 process was reversed by the Trump administration which almost assured that the controversial mine would be built, until the project hit a brick wall in the fall of 2020. That was when secret tape recordings of the Pebble Partnership CEOs revealed that many Alaska politicians and federal agencies were, at worst, colluding with the Partnership and, at best, complacent in the fast tracking of the mine permitting process, and that the Partnership had been lying about the geographic scale of the proposal. The recordings, which were the result of undercover investigating by an international conservation group, resulted in the Trump administration placing the project on hold after a series of influential conservative politicians spoke out against the Mine, including Donald Trump’s eldest son – an avid fisherman who has been to the region.

However, although the fall of 2020 Army Corp of Engineers decision to deny the Pebble Mine permit was a substantial victory for Alaska tribes, conservationists and fisherman, mining companies that still hold subsurface claims within the Bristol Bay watershed could move to develop them at any time. And due to archaic mining laws, there is virtually nothing anyone can do to stop them. The only way to ensure that the world’s greatest salmon fishery will be safe from any future attempts for similar development, therefore, is by the return of the EPA’s veto of the permit under section 404(c) of the Clean Water Act.

This is where President Biden who promised during his campaign, to eliminate Pebble for good. The best way for Biden to make good on this promise is to "take the next step and use the Clean Water Act to place permanent limits on mining in Bristol Bay to protect the salmon fishery and the communities that depend on it." According to Radhika Fox, head of the EPA’s Office of Water, the Bristol Bay watershed “is essential to the livelihood and the community well-being of many Alaskan tribes [and] is a unique resource that needs unique protection.”

Similarly, due to the existential climate crisis, we need to move quickly to convert our infrastructure to support low-carbon energy, these means it is all the more imperative that we limit the potential environmental impact from the increased mining needed to succeed in this conversion. This requires policies that prioritize metals recycling and reuse over new mining and transition the current throw-away society to a circular economy in which materials that we use in our lives are recycled. 

Under the current economic model, waste from outdated electronic components is overwhelming landfills. For example, outdated batteries, which are manganese and iron-rich, are not cost effective to recycle when mines can produce these metals more cheaply than the labor-intensive cost of recycling. As a result, many components are not used again and may in fact be rendered unrecyclable. At the same time, regulation to encourage responsible recycling in the US are currently, non-existent.

Overhauling the mining rules and preventing the most damaging mines will be a critical step toward bringing mining regulations and policy into the 21st century to protect natural resources, implement environmental justice policies in Alaska and make the transition to clean energy. We need to end the obsolete system put in place by the Mining Law of 1872, and replace it with a modern leasing system designed to protect the interests of American taxpayers and our nation's public lands.