Time For Mining Law Reform?

by Holly Doremus

July 22, 2009

This item cross-posted by permission from Legal Planet.

Hardrock mining (as opposed to oil and gas drilling) on federal land is a topic that rarely hits the national news. And there are plenty of other high-profile items on the agenda in DC at the moment, like health care reform and climate legislation. So I was a bit surprised, but pleased, to see this editorial calling for reform of the General Mining Law in the NY Times.

The Times is right that this is an area ripe for legislative work. Hardrock mining on public lands is still governed by the Civil War-era General Mining Law, adopted when the federal government was barely in control of much of the west, and well before environmental protection was on anyone’s mind. It allows anyone to explore for minerals anywhere on the public lands that has not been explicitly withdrawn with no notice to, much less permission from, the land managers. Miners who find a valuable mineral deposit can exploit it without paying any royalties. The extent to which the environmental impacts of public land mining can be regulated, either by federal or state authorities, is hotly contested.

It has been obvious for decades that the mining law is badly outdated, but legislative reform has been exquisitely elusive. There are some reasons for hope now. As the Times points out, Interior Secretary Ken Salazar has made it a priority. Nick Rahall, chair of the House Natural Resources Committee, long a supporter of mining law reform, has a bill on the topic pending in his committee. The roadblock, or potential roadblock, is in the Senate, where majority leader Harry Reid of Nevada, has opposed serious reform in the past.

The need for reform has recently become more urgent, as mineral prices have gone up and a wave of new claims has been filed across the west. The 2008 election took some of the pressure off — reform is less important with an administration in power that cares about the environmental impacts of mining, and is prepared to use its own powers to limit those impacts. On Monday, for example, Salazar announced a 2-year moratorium on new claims within the Grand Canyon watershed. But only Congress can make permanent reforms, and only Congress can change the fundamentals of the law. For moment, Rahall is prioritizing a smaller-scale bill that would permanently prohibit mining near the Grand Canyon. (A subcommittee is holding a hearing on it today.) Let’s hope there will be time later in this Congress for broad-scale mining law reform.

For an excellent historic overview and discussion of the mining law, see John Leshy, The Mining Law: A Study in Perpetual Motion (1987). The non-profit Earthworks advocates mining law reform here.

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Holly Doremus is James H. House and Hiram H. Hurd Professor of Environmental Regulation; Faculty Co-Director, Center for Law, Energy & the Environment; and Director, Environmental Law Program at the University of California, Berkeley.

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