By Derf Johnson
The 1872 Mining Law is one of the worst, if not the worst, federal law on the books concerning environmental and natural resources on public lands. Passed 150 years ago, it still governs the development of hardrock mines on federal lands, but it does not provide for royalties or require a comprehensive system to evaluate, permit, develop, and reclaim hardrock mines on those lands. It was passed at a time when environmental considerations were nil, and mining technology was primitive. (see the story in the Dec. 2021 issue of Down to Earth). Unfortunately, legislative reform of this relic has proven all but impossible, and the current Congress appears unwilling to consider any of the much-needed changes. Sen. Catherine Cortez Masto of Nevada and Sen. Joe Manchin of West Virginia appear to be among the stumbling blocks in getting 51 votes.
However, even without full legislative reform, there is the potential for some relatively significant changes to the rules implementing the 1872 General Mining Act at the Department of Interior (DOI) and Bureau of Land Management (BLM). Last fall, MEIC partnered with a number of sovereign Tribes and nations, Indigenous organizations, and environmental and conservation organizations in petitioning DOI for a rulemaking to modernize the agency’s rules. DOI and BLM are now considering this petition. Among the main updates requested are that the rules:
- Establish meaningful Tribal consultation, Indigenous resource protections, and systems that seek to achieve the free, prior, and informed consent from impacted communities,
- Prevent the unnecessary or undue degradation of lands and waters impacted by hardrock mining operations through waste management disposal requirements and water protections,
- Increase consideration of climate change-related impacts on public resources and how these changes should govern the regulation of hardrock mines,
- Implement a more thorough process for regulating the management and storage of waste if a mining operation utilizes tailings dams.
These changes could not come at a more important time for our public lands and hardrock mining. Just last month, the Biden Administration released a set of principles for the reform of hardrock mining on federal lands. It stated: “There is a growing need for responsibly sourced critical minerals to meet our climate, infrastructure, and global competitiveness goals.” This set of principles was followed by a DOI announcement that it would establish an Interagency Working Group to “lead an Administration effort on legislative and regulatory reform of mine permitting and oversight.”
Without a doubt, changes are coming for mining on federal lands. They will not be the comprehensive legislative changes that many of us who care about clean air and water would like to see, but these changes will be significant nonetheless. It is critical that Tribal communities, environmental organizations, and public lands advocates have a voice and a vote at the table.
Be prepared in the very near future to speak up and speak out for the protection of clean air, clean water, and wild landscapes in Montana from the extreme impacts of hardrock mining. Considering how long the 1872 General Mining Act has remained on the books, it may be a great long while before we have another opportunity.
This article was published in the March 2022 issue of Down To Earth.
