Updated: Your Comments Needed -- Improvements to NEPA Will Provide Relief for Miners and Other Public Land Users
January 20, 2020
by Scott Harn, Editor/Publisher, ICMJs Prospecting and Mining Journal
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, 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 has released 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:
1) 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.
2) 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., the1872 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.
The proposed rule has not yet been published in the Federal Register. Following publication, there will be a 60-day comment period. I urge all miners to review the document and provide constructive comments. When the proposed rule is published in the Federal Register we will provide a link to it here. In the meantime, we were provided with an advanced copy of the proposed rule that can be reviewed here: https://www.whitehouse.gov/wp-content/uploads/2020/01/NEPA-NPRM-01092020_Pre-publication-version.pdf
UPDATE: 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 view the proposed rule online: https://www.federalregister.gov/documents/2020/01/10/2019-28106/update-to-the-regulations-implementing-the-procedural-provisions-of-the-national-environmental
Below is President Trump's announcement on the proposed changes to NEPA: