Mining

Lately, elected representatives on both sides of the aisle have been displaying an appetite for expanding transferable tax credits to a broader variety of industries. This is evidenced by the recent profusion of proposed legislation that endeavors to subsidize emerging or important technologies with such valuable, transferable credits. This glut of proposed legislation—and the significant opportunities it may afford to the savvy buyer or seller—only promises to increase in importance with federal tax reform on the horizon.

The global transition to clean energy is accelerating.  Belatedly, attention is starting to move to mineral sourcing, particularly whether the necessary critical minerals will be available in the United States.  A recent Aspen Institute report observed: “As the world transitions to a new energy mix, it will require clean energy technologies that are extremely mineral intensive. Demand for minerals is projected to rise at unprecedented rates and could generate supply shortfalls that will slow, or potentially even derail, global efforts to reach net-zero targets.”[1]

On Friday, February 24, 2023, a Nevada federal judge issued an order in Bartell Ranch LLC et al. v. McCullough et al., rejecting emergency requests for injunction by Plaintiffs, among which are Native American Tribes, various environmental groups, and a rancher to block construction of the Thacker Pass lithium mine, pending their current appeal to the 9th Circuit.[1] The Plaintiffs maintain that the Bureau of Land Management failed to acknowledge concerns about the impacts of the mine and that the permits were illegally granted. The District Court ruled in favor of the Defendants, the Bureau of Land Management and Lithium Nevada Corp., with the Court only requiring a re-approval of permits covering 1,300 of the approximately 6,000-acre mineable area. The Plaintiffs sought an injunction while their appeal to the 9th Circuit is ongoing. However, the Court ruled in favor of the Defendants, ruling that “the requisite strong showing of a likelihood of success on the merits of their appeal” had not been met, opening the door for the project to proceed.…

Senior Counsel Coty Hopinks-Baul has published an article in Coal Age titled “CWA’s Permit Shield Spans SMRCA”.

In the article, Coty details a recent decision in the case of Southern Appalachian Mountain Stewards v. Red River Coal Co. Inc., where the Fourth Circuit upheld a district court’s dismissal of a citizen suit to enforce…

Back in November, MSHA head David Zatezalo indicated that MSHA’s initiative to “blur the lines” between coal and M/NM enforcement had ended. As an apparent follow-up, in late December MSHA released a new, unified M/NM and coal inspection handbook, and has now started training investigators on the new handbook.

D.C. Circuit Upholds USEPA Decision to Not Require Financial Assurance Under CERCLA for Hardrock Mining

We have previously blogged (in June 2019 and 2017) on a proposed rule released during the final days of the Obama Administration which required hardrock mines to provide financial assurance demonstrating they are able to fund the costs associated with the future cleanup of the mines under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the federal statute designed to address releases of hazardous substances and the cleanup of hazardous waste sites nationwide. In December 2017, the USEPA stated its intention not to issue the final rule, finding that there was no need for any CERCLA financial assurance mechanism for operating hardrock mines based on existing federal and state programs as well as modern mining practices. Several environmental organizations filed suit in the U.S. Court of Appeals for the D.C. Circuit, challenging the USEPA’s decision not to issue the rule.

The Menominee Indian Tribe of Wisconsin has sued the U.S. Environmental Protection Agency (“EPA”) and Army Corps of Engineers (“Corps”) over the proposed Aquila Resources Back Forty Mine, arguing that EPA and Corps have failed to take responsibility for reviewing wetland permits for the project. The lawsuit was expected since the Tribe filed a notice…