Interior Department agencies to take immediate steps to jumpstart a plan for promoting US critical mineral production.
By Janice M. Schneider, Tommy Beaudreau, Sara K. Orr, and James D. Friedland
US Interior Department agencies are developing a strategic framework that will advance US critical mineral production. These efforts come on the heels of Executive Order No. 13817, “A Federal Strategy to Ensure Secure and Reliable Supplies of Critical Minerals,” which directs the development of a strategy aimed at reducing reliance on foreign sources for critical minerals, such as rare-earth elements, and promoting policies to increase US critical mineral development.
President Trump signed the Executive Order on December 20, 2017, after the release of a new US Geological Survey (USGS) study. The Executive Order finds that “the United States is heavily reliant on imports of certain mineral commodities that are vital to the Nation’s security and economic prosperity” and that this dependence on foreign sources “creates a strategic vulnerability for both [the United States’] economy and military to adverse foreign government action, natural disaster, and other events that can disrupt the supply of these key minerals.” The Executive Order also finds that “despite the presence of significant deposits of some of these minerals across the United States,” the domestic mining industry is hindered by the lack of accessible geological and geophysical data, permitting delays, and the potential for protracted litigation.
The day after the Executive Order was announced, Secretary of the Interior Ryan Zinke issued Secretarial Order No. 3359, “Critical Mineral Independence and Security,” to implement the presidential directive. The Secretarial Order directed Interior Department agencies to take the following actions.
1) Identify New Sources of Critical Minerals
Critical minerals, as defined in the Executive Order, are those minerals identified by the Secretary of the Interior as non-fuel minerals or mineral materials “essential to the economic and national security of the United States” that are vulnerable to supply chain disruption, and which serve an “essential function in the manufacturing of a product, the absence of which would have significant consequences for our economy or our national security.” Secretarial Order No. 3359 broadly directs the USGS to identify new sources of these critical minerals and to ensure that the industry has “electronic access to the most advanced topographic, geologic, and geophysical data.”
2) Develop a List of Critical Minerals
The USGS and the Bureau of Land Management (BLM), together with the Department of Defense and other agencies, must develop a final list of minerals critical to national interests by February 18, 2018.
The USGS currently tracks supplies for 88 non-fuel mineral commodities in the United States. The US Department of Defense’s Defense Logistics Agency evaluates the supply chains of a larger group of 130 minerals deemed as potentially strategic and critical minerals. This agency also manages the operations of the National Defense Stockpile, which acquires, stores, manages, and disposes of certain strategic and critical minerals — including so-called critical minerals, such as rare-earth elements. Critical minerals are essential components in a wide array of modern products, from smart phones to clean energy technologies to defense systems.
A USGS report published in January 2017 found that “imports made up more than one-half of the U.S. apparent consumption of 50 nonfuel mineral commodities, and the United States was 100% import reliant for 20 of those.” While many of these minerals are known to be present in the US, the USGS found that “China, followed by Canada, supplied the largest number of nonfuel mineral commodities.” The USGS’ new December 2017 report focused specifically on 23 critical minerals in far greater depth, including “how the commodity is used, the location of identified resources and their distribution nationally and globally, the state of current geologic knowledge, potential for finding additional deposits, and geoenvironmental issues that may be related to the production and uses of these mineral commodities.” The new report again underscores US dependence on other countries for production of many of these key minerals.
3) Improve Mapping and Data Accessibility
The Executive Order also directs the Secretary of Commerce in coordination with the Secretaries of Defense, Interior, Agriculture, and Energy, as well as the US Trade Representative, to submit a report to the White House within 180 days after the list of critical minerals is issued. The Secretarial Order in turn requires the USGS to develop a plan, within 60 days after the critical minerals list referenced above is completed, to improve the topographic, geological, and geophysical mapping of the United States, and to make these data accessible to support private sector mineral exploration of critical minerals. The USGS plan will likely be incorporated into the larger secretaries’ report.
4) Improve Access and Streamline Permitting
Both the Executive Order and the Secretarial Order seek to enhance access to these resources and to streamline permitting of mining operations. The Secretarial Order specifically directs each of the Interior Department’s land management bureaus to develop recommendations within 60 days to address these issues and otherwise increase critical mineral discovery, production, and domestic refining. The permitting and environmental review processes for hard rock mining operations on public lands typically takes many years, and approvals often face protracted legal challenges.
The Executive and Secretarial Orders seek to promote the domestic production of critical minerals by further developing scientific information about these resources, improving access to critical minerals on public lands, and streamlining the regulatory and environmental review process for critical mineral mining operations. Latham & Watkins will continue to closely monitor the implementation of the Executive and Secretarial Orders, as well as follow other federal, state, and tribal developments impacting mining operations.
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