Magazine

Legislation & Regulation

Legislative and Regulatory Update

February 2020 by Scott Harn

• Comments needed regarding proposed NEPA improvements
Clark Pearson (Public Lands for the People) and I made over a dozen trips to Washington, DC, over the past four years. We had the unique opportunity to speak directly with agency heads and advisors for the Bureau of Land Management, the US Forest Service, the Environmental Protection Agency, the US Geological Survey, the Mine Safety and Health Administration, the Department of Defense, and with President Trump’s advisor for Energy and Environment.

Our main focus was on the many regulatory hurdles delaying and/or preventing miners from beginning or continuing their operations. The American Mining and Exploration Association discussed similar issues with the current administration and the National Mining Association focused on the regulations hampering larger mining concerns, while other professional organizations brought up regulations hampering the construction of roads, bridges, transmission lines and even wind projects.

There were a few common problems all of us discussed with the current administration: 1) failure of agencies to review and approve Notices or Plans in a timely manner; 2) the ridiculous length (in pages) of Environmental Assessments, and Environmental Impact Statements; 3) Categorical Exclusions (CEs) for activities with little or no significance; 4) including “economic impact” as a consideration; and 5) frivolous lawsuits by environmental extremist groups.

There were many more items discussed than the five items mentioned above, but I highlight these items because they are all being addressed in a just-released NEPA (National Environmental Policy Act) proposed rulemaking. The Council on Environmental Quality provided an advanced copy of the “Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act.”

While there haven’t been any significant changes to NEPA since 1978, there have been hundreds of court cases litigated on NEPA issues.

It appears the current administration is serious about fixing many of the problems I highlighted above by making some very significant improvements to NEPA. I’ll give you two examples of significant items in the proposed rule:

The proposed rule includes a one-year time limit for completion of an Environmental Assessment and a two-year time limit for completion of an Environmental Impact Statement.
In the proposed rule, NEPA is not applicable for non-discretionary activities. In other words, if an activity is approved under another statute (i.e., the 1872 Mining Law), NEPA does not apply.

Currently, US Forest Service regulations under 36CFR 228 yield to NEPA because of faulty decisions handed down by the 9th Circuit. This proposed rule could remove those faulty rulings and reset the rules to the original intent of Congress.

When sending in your comments on these proposed rules, miners might wish to state that because a grant under the Mining Law is non-discretionary, NEPA should not apply.

If you would like to educate yourself further on what constitutes a discretionary action, read “What Is A Mining Right?” by Clark Pearson of Public Lands for the People (April 2015 ICMJ).

I urge all miners to review the document and provide constructive comments.

The proposed NEPA rule was published in the Federal Register on January 10, 2020. Constructive comments will be accepted until March 10, 2020. You can locate the proposed rule by searching online for “Federal Register Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act.”

• Effort underway to fix the ESA
The Western Caucus includes 75 members of Congress who have joined together to promote multiple use of federal lands, American energy and mineral independence, and private property rights. The group is currently chaired by Congressman Paul Gosar (R-Arizona).

On January 15, Western Caucus members in the House introduced a 17-bill legislative package to “modernize the Endangered Species Act.”
There are too many proposed changes to list here, but I’ll highlight a few:

The “Petition Act” attempts to prevent organizations like the Center for Biological Diversity from overwhelming US Fish & Wildlife with frivolous endangered species petitions, which have then been used as a means to obtain large settlements from lawsuits.
The “Whole Act” would allow federal agencies to consider “the totality of conservation measures underway” before taking federal action.
The “Endangered Species Transparency and Reasonableness Act” would require agencies to publicly disclose the use of funds to respond to ESA lawsuits and attorney fees, and cap the hourly rate for those fees at $125 per hour.
The “Listing Reform Act” would force federal agencies to consider possible economic impacts of an ESA listing of threatened or endangered.
The “Bring ESA Into the 21st Century Act” would prevent a federal agency from creating critical habitat where there is no evidence that a species is present.
The “Property Rights Protection Act” would prevent a federal agency from designating private property as critical habitat without the property owner’s approval.

These are just a few highlights—there is much more in each of these bills and 12 more bills in this legislative package. You can find summaries of each bill online at www.westerncaucus.house.gov along with links to the full text of each bill and email addresses to provide constructive comments.

We applaud the efforts of the Western Caucus to fix the abuses that have occurred as the result of a flawed Endangered Species Act and we hope you will all participate by providing your support.

While the Trump Administration has issued Executive Orders to help alleviate some of these same issues, action by Congress will provide a more permanent solution.