A bipartisan permitting reform proposal introduced in the US Senate on September 30 could deliver some of the most consequential changes to federal environmental approvals in decades, potentially shortening project development timelines and reducing legal uncertainty for mining companies.
Sweeping bipartisan legislation targeting environmental reviews, litigation deadlines and water permits could reshape how mining projects are developed in the United States, but significant political negotiations are imminent.
Its sponsors anticipate consideration after the November midterm elections, but the bill’s path through Congress remains uncertain, according to an October report authored by Pillsbury Winthrop Shaw Pittman attorneys.
The proposed reforms would affect major federal environmental statutes, including the National Environmental Policy Act (NEPA), Clean Water Act and Endangered Species Act, with implications extending beyond mining to renewable energy, transmission infrastructure and other major industrial developments, co-author of the report, and Houston office managing partner Amanda Halter told MINING.COM in an interview.
Halter, an environmental lawyer who advises mining companies on project development, permitting, environmental liabilities, and cross-border regulatory matters, said the legislation represents a rare opportunity for meaningful reform.
“It’s a really big deal that we have a real, large-scale, bipartisan permitting reform bill on the table,” Halter said.
The proposal addresses longstanding concerns among mining companies about lengthy federal approval processes and the potential for litigation to delay projects even after permits have been granted.
However, Halter cautioned that the legislation remains at an early stage. The Senate has not voted on the proposal, and it has yet to reach the House of Representatives.
Supporters are pushing for passage before the current Congress ends on January 3, while others favour waiting until after the November mid-term elections, potentially reopening negotiations under a new Congress.
Faster environmental reviews
Among the most significant proposed changes for mining companies is an expansion of categorical exclusions under NEPA, which allow certain activities to proceed without preparing an environmental assessment or environmental impact statement.
Halter said the changes could substantially shorten NEPA review timelines for qualifying components of larger mining developments. The bill would let lead agencies combine different categorical exclusions and allow agencies to adopt another agency’s exclusion. When the lead agency for the project determines that no NEPA document is required, it would bar other agencies from preparing one. While the bill stops short of proposing project-level exemptions from NEPA, it would nevertheless be beneficial for streamlining necessary approvals overall.
“Most mining projects won’t, but aspects of the project may,” she said, referring to eligibility for categorical exclusions.
The bill also addresses a practical issue for hard rock mines on federal land. Subject to a federally approved plan of operations, it would allow claim holders to also locate multiple mill sites for waste rock, tailings, and related operations on eligible federal land.
The legislation would also seek to strengthen existing environmental review deadlines and sharply reduce the time available to challenge certain federal approvals in court.
Under the bill, certain NEPA challenges would have to be brought within 150 days, a significant reduction from the potentially six-year period available for some challenges under the Administrative Procedure Act.
“How good is your approval if someone can sue on it for six years?” Halter said, describing the current litigation window as a major source of uncertainty for mining project investment decisions.
The proposal would also generally require challengers to have raised substantive concerns during the administrative review process and to demonstrate actual or imminent injury.
Halter said the intention is to encourage objections to be addressed while federal agencies are reviewing projects, rather than allowing disputes to emerge years after decisions have been made.
The broader objective, she said, is to get relevant information before regulators more quickly and make permitting decisions more durable.
Changes to the Clean Water Act could also have significant financial implications for mine operators by potentially doubling the maximum term of discharge permits.
The proposal would extend the statutory maximum duration for National Pollutant Discharge Elimination System permits from five to 10 years.
These permits regulate pollutant discharges into US waters and can require mining companies to make substantial investments in water treatment and discharge management systems.
Halter said extending the durations of permit terms could improve the economics of those investments by providing greater regulatory certainty, though a 10-year term would be a maximum and not a guarantee.
“If the permit for your major investment is only good for five years, that’s a harder business case than, hey, ‘I’m going to make a major investment that’s going to be good for 10 years,’” she said.
However, Halter expects the provision to become a significant negotiating point.
Environmental advocates could argue that longer permit terms reduce opportunities to revisit discharge requirements as environmental conditions, scientific understanding and treatment technologies evolve.
“I think what the environmentalists would say is that the world is changing far too rapidly to have 10-year time horizons on discharge permits,” Halter said.
Endangered species protections
Proposed amendments to the Endangered Species Act could prove equally contentious.
The legislation seeks to refine the scientific and commercial information agencies must consider in endangered species determinations and shorten some consultation timelines, with the aim of making regulatory decisions more focused and timely.
For mining companies, endangered species requirements can become a major obstacle when projects overlap with sensitive habitats or protected species.
Halter expects this section of the legislation to undergo substantial negotiations between conservation groups and project proponents.
The proposed changes reflect an effort to balance species protections with greater predictability in project approvals, she said.
Bipartisan opportunity, uncertain outcome
Despite potential opposition to individual provisions, Halter said the proposal has an unusual advantage: both conventional energy and renewable energy developers have an interest in faster permitting.
Transmission infrastructure in particular has become a bottleneck for renewable energy expansion, creating common ground among constituencies that otherwise disagree on environmental and energy policy.
“There’s something in here for everyone,” Halter said.
That shared interest could give the legislation a realistic chance of advancing, even if its final provisions differ substantially from those currently proposed.
For mining companies evaluating US projects, the reforms could eventually provide greater certainty over permitting schedules, environmental obligations and litigation exposure. But Halter warned against assuming the proposed changes will become law in their current form.
“This is a really big potential deal, but it isn’t a done deal,” she said. “So pay attention. There’s a lot that’s going to happen in the sausage making.”