The Trump administration is pushing forward with U.S. mine permitting decisions during its lame-duck period, and the move has been criticized by environmentalists, while legal experts said it is typical of any government in its final days.
The U.S. Forest Service confirmed to S&P Global Market Intelligence on Nov. 30 that it expects to unveil the final environmental impact statement for the Arizona-based Resolution copper joint venture between Rio Tinto and BHP Group in December. The agency had outlined plans earlier in the year to release the document in December 2021.
Resolution is under development within Oak Flat, an area of land considered sacred to tribal groups, and at least one prominent Arizona Democrat has privately asked President-elect Joe Biden to rescind the environmental impact statement as soon as possible.
Resolution project director Andrew Lye said the project has progressed in line with the requirements of the law, in a Dec. 2 statement emailed to Market Intelligence. Lye said a feasibility study will begin when the permitting process is completed, to help decide whether to proceed with the mine development.
Other agencies have also pushed forward on contentious mine decisions before the inauguration. The U.S. Environmental Protection Agency on Nov. 24 issued final underground injection control permits and a Safe Drinking Water Act aquifer exemption for the Dewey Burdock uranium project in South Dakota, an in situ recovery operation proposed by Azarga Uranium Corp. that was valued at $147.5 million in a 2019 preliminary economic assessment. A coalition of environmental and tribal activists in South Dakota opposed to the project responded in a public statement saying the project still "has a long way to go and can still be stopped in a number of ways."
One day after the EPA action, the U.S. Army Corps of Engineers denied the water discharge permit required for Northern Dynasty Minerals Ltd.'s Pebble copper-gold project in Alaska. Northern Dynasty has pledged to appeal the decision.
Environmental group Earthworks expects further decisions on politically contentious projects before Jan. 20, 2021, including potentially the Maturi copper-nickel project operated by Antofagasta PLC subsidiary Twin Metals Minnesota LLC, representatives said in an email.
The lame-duck period of any elected official's tenure is the time during which they are outgoing but still in power. It is typical for lame-duck presidential administrations to oversee permitting decisions of political importance, said Eric Fjelstad, a partner at Seattle-headquartered law firm Perkins Coie.
Fjelstad compared the push to the Obama administration's opposition to the Dakota Access pipeline, which persisted until that government's final days. "When they're high profile, [it happens] for sure," Fjelstad said. "Administrations are trying to push things through they support and stop things they don't support. Democrats and Republicans do it."
However, if there is evidence that the government's decision-making was rushed, its decisions in matters such as permitting and technical studies could face increased risk in terms of legal challenges, Fjelstad and two other legal experts told Market Intelligence, declining to discuss specific projects.
"It is not unusual at the end of an administration, especially projects that have taken up a lot of time at the staff and political levels, to want to bring those to a closure point. However, finishing a [National Environmental Policy Act] review or issuing a permit in an expedited matter that doesn't sufficiently check all the boxes will of course become more vulnerable to a challenge after the fact," said Jamie Auslander, an attorney with Washington-based law firm Beveridge and Diamond. "If you're a project proponent, you don't always want them to move fast."
An adjusted timetable on its own may not be sufficient to demonstrate a rushed job in court. "Just because something is fast-tracked does not in of itself mean the action is suspect or there is no basis to support it. You could have a situation where an initial project review was expected to take a year and a half, but for whatever reason, an agency moves around resources," said Byron Brown, a former EPA deputy chief of staff who left the Trump administration in 2018 and is now senior counsel at law firm Crowell & Moring.
Explaining its scheduling change regarding the Resolution project, Forest Service spokesperson Babete Anderson said the timeline was adjusted from an "original schedule of mid-2020" in order to "reflect the difference between the estimated timeline and the actual time it took to complete the necessary steps."
"The Schedule of Proposed Actions is an estimate based on several variables involving stakeholders and entities from the public and private sectors. These variables include current project progress and the amount of work remaining, reliance on external factors, such as cooperating agencies, to maintain regulatory compliance," Anderson said in a Nov. 30 email.