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Legislation & Regulation

Legislative and Regulatory Update

August 2020 by Scott Harn

• Nevada proposal to cap tax deductions for mining businesses stalls
After a week of mostly behind-the-scenes discussions, the Nevada Legislature’s emergency special session grew contentious on July 16, during middle-of-the-night sparring over a proposal to cap tax deductions for mining businesses that stalled hours after it was introduced.

Assembly Bill 4 passed through the Assembly on a party line vote—with Democrats in favor and Republicans against the measure—but fell one vote short of passing in the Senate, where a two-thirds majority is needed to increase taxes.

The bill garnered enthusiasm from Democrats all the way up to Governor Steve Sisolak, who put out a statement that he would sign the bill if it passed through the legislature even before the legislature published a bill draft.

The proposal was brought to the floor again with amendments two days later, but again failed to garner a two-thirds vote, failing 13-8 with Democrats in favor and Republicans against.

• NEPA gets a much needed update
The Council on Environmental Quality (CEQ) issued its final rule to update its regulations for federal agencies to implement the National Environmental Policy Act (NEPA) on July 16, 2020. The effective date of the rule is scheduled for September 14, 2020.

The NEPA process was unchanged since its implementation in 1978 and was in dire need of an overhaul. The regulatory process, initially anticipated to take 12 months when enacted, had become cumbersome and overwhelming; the completion of an Environmental Impact Statement (EIS) and Record of Decision had ballooned to 4.5 years on average, with one-quarter of EISs taking 6 years or more according to a review by the CEQ. Page counts for EISs averaged 661 pages!

The rule specifies a 75-page limit for an Environmental Assessment (EA) and a one-year time limit for the federal government to complete the EA. An EIS will be limited to 150 pages and a two-year time limit.

Agencies will be required to work together to meet those time frames instead waiting for one agency to complete their work before another agency takes up their review. New language will also require economic impacts to be considered.

One of the biggest deterrents to any project was the arbitrary use of terms like “direct, indirect and cumulative” impacts of any infrastructure or mining project. Those terms have been eliminated and the rule specifically states that “analysis of cumulative effects is not required.”

There are more significant improvements than we have space to cover in this column. An Internet search for “CEQ-2019-0003” will lead you to the Federal Register document, or you can search for “Summary of Proposed Changes to the National Environmental Policy Act (NEPA) Regulations” for a good summary provided by Kleinschmidt Consulting.

• Army Corps to release review of Pebble Mine
The US Army Corps of Engineers plans to release its final environmental review of the proposed Pebble Mine in southwest Alaska by the end of July.

Back in July 2019, the EPA withdrew a preemptive Clean Water Act determination that was put in place by the Obama administration in 2014 which prevented a review of the proposed project.

by Scott Harn

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