Modern Technology, Old Mining Law Can Make Net-Zero a Reality

When asked how renewable energies and an 1872 mining law are related, I would expect you to answer, “They are not”. That would have been my answer years ago. But political and technological developments in recent decades have put the American energy transition and the General Mining Act of 1872 on a path that makes them inseparable.

The current policy of the Biden government is to have a zero-pollution electricity sector by 2035 and a net-zero economy by 2050. To that end, the National Renewable Energy Laboratory recently issued a report showing a path to decarbonization by 2050 and plans to lease new sections of the outer continental shelf for offshore wind development. To date, the US has installed 102.8 gigawatts (GW) of solar power and 118 GW of wind power. America’s use of renewable energy has been incredible, and the pace is going to accelerate.

The link between renewable energies and the General Mining Act begins to manifest when the collective “we” begin to realize that the amount of planned renewable capacity will require enormous amounts of minerals if renewable energies are to be deployed on a large scale – and they are widely used scale.

The world is not producing enough minerals for the energy transition

In fact, the Energy Information Administration has forecast that 17 additional GW of solar capacity and 6 GW of wind capacity will be installed in 2022. Six GW of wind capacity is roughly equivalent to 2,184 utility-scale wind turbines, and each turbine can hold up to 335. need tons of steel, 4.7 tons of copper, 1,200 tons of concrete, three tons of aluminum and two tons of rare earths.

The link between renewables and the General Mining Act becomes clearer when “we” realize that the US and the world are not currently producing enough minerals to support a global switch to renewable energies, led by wind, solar, electric vehicles and grids becomes batteries.

A 2020 World Bank report shows that the production of minerals like copper, graphite, vanadium, lithium, nickel, and cobalt must grow exponentially to meet the demands of a world that wants to electrify everything. In addition, the International Energy Agency released a report earlier this year calling for the total market size for critical minerals such as copper, cobalt, manganese and other rare earth elements to increase sevenfold by 2030.

These statistics make it mandatory for nations able to produce “renewable energy minerals” under strict environmental regulations to establish policies, regulations and incentives that encourage the production of the materials needed to transition to renewable energies .

The US is ready to take the lead

The US is uniquely positioned to be the world leader in mineral production based on these criteria and may wish to consider measures such as tax incentives for conductive metals production or expedited permits for battery minerals. However, the opposite appears to be happening based on recent legislative proposals in the House of Representatives Build Back Better Act.

At this point the connection between renewables and the General Mining Act becomes clear. The bill explains US policy to develop a domestic mining industry that will ensure the use of industrial minerals in ways that reduce environmental impact – renewable energies require industrial minerals and reduce environmental impact.

The law also allows individuals and companies to hold and maintain claims and exclusive rights to hard rock deposits on federally administered land. For a nation that wants to achieve 100% renewable energy penetration in the next 29 years, a law like the General Mining Act seems indispensable.

The only real legal mechanism to prevent the development of indigenous minerals on state is known as “withdrawal”. It is included in the State Politics and Administration Act and enables interior and agriculture ministries to deny state disposition under all general state laws, including the General Mining Act.

Late last month, the Forest Service filed a 20-year mineral withdrawal application with the Bureau of Land Management that would remove 225,378 acres of Minnesota’s Superior National Forest from mineral disposition or lease. This action ushers in a two-year land separation that prohibits the granting of new permits for mineral development and related activities.

As with any withdrawal, this measure would be publicly commented on and could be extended for 20 years. If successful, this withdrawal would bring a planned underground copper and nickel project to a virtual standstill. This project, while controversial, would produce copper, nickel and other “renewable energy minerals”.

If the US is to meet its carbon and renewable energy targets, it is up to policymakers to harmonize the mesh between US renewables and the National Mining Act regulation. Otherwise, the US will not have the raw materials necessary for a successful transition to renewables.

Without such harmonization, efforts to meet both of US policy goals – a net-zero economy and domestic mineral supply – are in danger of falling short.

It also seems advisable for mining attorneys to assess the exposure of their project to a withdrawal request to ensure that their project is sufficiently tied to the policy enactments of net zero and domestic mineral production to avert adverse action.

This column does not necessarily represent the opinion of the Bureau of National Affairs, Inc. or its owners.

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James Voyles is Of Counsel in Regulatory and Government at Lewis Roca, where he focuses on infrastructure, environment, energy and natural resources. Previously, he was Senior Counsel in the Home Office.

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