The United States is racing to secure a domestic supply of critical minerals essential to our national and economic security. For years, we have relied on foreign countries — i.e., China — that have weaponized this dependence to advance their own agenda.
For the last several decades, China has been making strategic investments to build global, vertically integrated supply chains. Today, China has a near monopoly on many of the materials we need for essential manufacturing, including weapons production. For instance, China controls 91% of global rare-earth refining production, and, if you include Myanmar, it controls 83% of heavy rare-earth mined production. This came to a head last year when China announced it would restrict exports of rare earth elements to the U.S. amid a trade war between the two nations.
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This set alarm bells ringing: the U.S. is relying on adversarial nations for materials paramount to our nation’s defense and economic growth. After years of underprioritizing the industry, lawmakers on both sides of the aisle are urgently working to bring new domestic mine projects online and reshore industrial capacity.
However, despite the urgency, well-funded activists are abusing our nation’s legal system to delay and halt the critical mineral projects we need. This is keeping the U.S. reliant on China, reducing economic opportunities, and stemming our nation’s wartime readiness.
Already, domestic projects face lengthy lead times, which in some cases can take 30 years for a project to move from initial mineral deposit discovery to production. Companies must navigate rigorous state and federal permitting processes, including extensive environmental reviews, public comment periods, agency consultations, and opportunities for administrative appeals.
But even after securing necessary permits, many mining companies are tied up in expensive legal battles for years by activist groups (that often don’t live anywhere near the project) seeking to indefinitely delay critical infrastructure. These legal challenges can discourage investment, increase operating costs, and stall the strategic projects our nation needs.
Lawful permitting is no longer the finish line. Litigation is the last hurdle for companies in an already complex and time-consuming process.
While the bipartisan push to streamline the permitting is necessary, it is insufficient. Additional action from Congress is needed to stop the exploitation of our legal systems and bring greater certainty to the permitting process and the legal challenges that follow.
The Rosemont Copper-Mine Project in Arizona is a cautionary tale. In 2022, a U.S. Court of Appeals affirmed a lower court decision that repealed approvals by the U.S. Forest Service and restricted how federal lands can be used for mining. The decision upended decades of precedent in the mining world and its application of the 1872 Mining Law, which allowed for support facilities (such as tailings storage) to be developed on federal lands.
Over a rigorous, more than decadelong permitting process, Rosemont spent hundreds of millions of dollars on studies, permitting, stakeholder engagement, and environmental reviews — involving 17 agencies, 16 public hearings, over 1,000 environmental studies, and a public comment period that generated more than 36,000 comments. Despite this, the court altered the legal landscape in one fell swoop — raising questions about the future of permitting and investment in the U.S.
Rosemont is far from the only developer targeted by activists exploiting the legal system. Resolution Copper’s project has faced attacks, while Idaho-based Perpetua Resources is currently fighting a desperate legal attempt from a small group of activists over its Stibnite Project. In both cases, the last-ditch legal efforts have faced strong opposition in the courts, while the projects continue to move forward.
What is often left out of these aggressive legal attacks is that the projects being opposed are essential pieces of U.S. national security. Consider, Perpetua Resources’ Stibnite Project will produce antimony, a critical mineral used in a wide range of defense applications, as well as other important industries such as semiconductor manufacturing. Despite its importance, the current supply of antimony is experiencing its most severe deficit in modern history, underscoring the importance of projects like Stibnite.
The U.S. government, at least, seems to understand why our country needs Stibnite. Michael Cadenazzi, assistant secretary of war for Industrial Base Policy, said in a recent brief for the project’s legal case, “the [Stibnite project] is the most important pillar of the Department’s strategy to secure a U.S. source of mined antimony.”
What’s more, these critical mineral projects also offer substantial economic benefits for American communities. Stopping them means fewer jobs, less tax revenue, and weaker domestic supply chains.
Further, the unstable operating environment created by a perfect storm of permitting delays and litigation risks sending a negative message to investors. Mining company executives themselves have expressed difficulties with operating in the U.S. Why pursue an investment in a country where you might face 30 years of delays and costly litigation that could reverse lawful permitting?
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If Congress is serious about addressing domestic supply chains, it must also address litigation abuse. Legislation establishing a firm statute of limitations, clarifying standing requirements, limiting serial litigation, and codifying land rights would provide an environment designed for investment rather than one designed to limit it.
We cannot allow bad actors to jeopardize national security and keep us reliant on our adversaries. The U.S. urgently needs a more robust domestic mining sector for its prosperity and protection. And the best way to win the global critical minerals race is to build mining projects right in our own backyard.
Ryan Sistad is the executive director of Better in Our Back Yard.