[House Report 118-794]
[From the U.S. Government Publishing Office]
118th Congress } { Report
HOUSE OF REPRESENTATIVES
2d Session } { 118-794
======================================================================
MINERAL MINING PARITY ACT
_______
December 4, 2024.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Westerman, from the Committee on Natural Resources, submitted the
following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 6862]
[Including cost estimate of the Congressional Budget Office]
The Committee on Natural Resources, to whom was referred
the bill (H.R. 6862) to amend the FAST Act to include certain
mineral production activities as a covered project, and for
other purposes, having considered the same, reports favorably
thereon with an amendment and recommends that the bill as
amended do pass.
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Mineral Mining Parity Act''.
SEC. 2. DEFINITION OF COVERED PROJECT.
Section 41001(6)(A) of the FAST Act (42 U.S.C. 4370m(6)(A)) is
amended by inserting ``mineral production,'' before ``or any other
sector''.
SEC. 3. PROHIBITION AGAINST FINALIZING, IMPLEMENTING, OR ENFORCING THE
PROPOSED RULE RELATED TO THE SCOPE OF MINING UNDER
THE FAST ACT.
The Federal Permitting Improvement Steering Council may not finalize,
implement, or enforce the proposed rule titled ``Revising Scope of the
Mining Sector of Projects That Are Eligible for Coverage Under Title 41
of the Fixing America's Surface Transportation Act'' (88 Fed. Reg.
65350; September 22, 2023).
Purpose of the Legislation
The purpose of H.R. 6862 is to amend the FAST Act to
include certain mineral production activities as a covered
project, and for other purposes.
Background and Need for Legislation
H.R. 6862, the Mineral Mining Parity Act, would codify
``mineral production'' as a covered sector under Title 41 of
the Fixing America's Surface Transportation Act (FAST-41) and
rescind the proposed rule, ``Revising Scope of the Mining
Sector of Projects That Are Eligible for Coverage Under Title
41 of the Fixing America's Surface Transportation Act,''
published by the Biden administration on September 22, 2023.\1\
---------------------------------------------------------------------------
\1\88 FR 65350.
---------------------------------------------------------------------------
FAST-41 established the Federal Permitting Improvement
Steering Council (Permitting Council) to streamline
environmental reviews for large-scale infrastructure
projects.\2\ The Permitting Council membership consists of its
Executive Director, the Director of the Office of Management
and Budget, the Chair of the Council on Environmental Quality,
and representatives from 13 federal agencies, including DOI.\3\
The Permitting Council is charged with facilitating the multi-
agency permitting process for certain projects within
``covered'' sectors. Covered sectors currently include
renewable or conventional energy production, electricity
transmission, surface transportation, aviation, ports and
waterways, water resource, broadband, pipelines, manufacturing,
mining, carbon capture, semiconductors, artificial intelligence
and machine learning, high-performance computing and advanced
computer hardware and software, quantum information science and
technology, data storage and data management, and
cybersecurity.\4\
---------------------------------------------------------------------------
\2\42 U.S.C. Sec. 4370m et seq.
\3\Federal Permitting Improvement Steering Council. Fact. Sheet.
https://www.permits.
performance.gov/sites/permits.dot.gov/files/2022-09/FPISC_090922.pdf.
\4\Id.
---------------------------------------------------------------------------
Project sponsors may request to become a FAST-41 covered
project and the Permitting Council will determine eligibility.
If selected, the Permitting Council will develop a permitting
timetable and a list of reviews and authorizations needed for
the project and maintain these items on a website known as the
``Permitting Dashboard.''\5\ FAST-41 also requires that
agencies consult with the project sponsor on changes to the
timetable.
---------------------------------------------------------------------------
\5\Permitting Dashboard. https://www.permits.performance.gov/.
---------------------------------------------------------------------------
Under the Trump administration, the Permitting Council
voted to expand the list of covered projects under FAST-41 to
include ``mining,'' ensuring that all hardrock mining projects
are eligible for the project streamlining benefits of FAST-
41.\6\ The Biden administration's recently proposed rule would
narrow the scope of eligible mining projects to those involving
the mining, beneficiation, processing and recycling of only
critical minerals, as defined in section 7002 of the Energy Act
of 2020\7\ and listed by the U.S. Geological Survey (USGS) on
the current Final List of Critical Minerals.\8\
---------------------------------------------------------------------------
\6\86 FR 1281.
\7\Public Law 116-260, 134 Stat. 1182, 2562 (Dec. 27, 2020),
codified at 30 U.S.C. 1606.
\8\88 FR 65350.
---------------------------------------------------------------------------
The Final List of Critical Minerals has been maintained by
the USGS since 2018.\9\ On December 20, 2017, President Trump
issued Executive Order 13817, calling for a national strategy
to support a domestic supply of minerals vital to the economic
and national security of the United States.\10\ USGS published
an initial list of 35 critical minerals in 2018.\11\ To be
categorized as ``critical,'' a mineral commodity must be: (1) a
nonfuel mineral or mineral material essential to the economic
and national security of the United States, (2) produced from a
supply chain that is vulnerable to disruption, and (3) serving
an essential function in the manufacturing of a product, the
absence of which would have substantial consequences for the
U.S. economy or national security.\12\ These criteria were
later codified in section 7002 of the Energy Act of 2020,\13\
which was made law in the Consolidated Appropriations Act of
2021.\14\
---------------------------------------------------------------------------
\9\83 FR 23295.
\10\82 FR 60835.
\11\83 FR 23295.
\12\Public Law 116-260, 134 Stat. 1182, 2562 (Dec. 27, 2020),
codified at 30 U.S.C. 1606.
\13\Id.
\14\P.L. No. 116-260.
---------------------------------------------------------------------------
Under the Energy Act of 2020, USGS must review and update
the list of critical minerals at least every three years.\15\
The Biden administration published its updated Final List of
Critical Minerals in February 2022, which notably removed
uranium and helium from the list.\16\
---------------------------------------------------------------------------
\15\Public Law 116-260, 134 Stat. 1182, 2562 (Dec. 27, 2020),
codified at 30 U.S.C. 1606.
\16\87 FR 10381.
---------------------------------------------------------------------------
The Biden administration's proposal to limit FAST-41
projects to only critical mineral projects would create
unnecessary delays for important domestic mining projects that
could benefit from the permitting streamlining benefits of the
FAST-41 process under current regulations. For example, USGS
does not list copper as a critical mineral, yet copper is
essential for many aspects of modern life, including building
construction, electrical and electronic products, as well as
transportation and industrial equipment.\17\ As the Energy Act
of 2020 requires USGS to update the critical minerals list
every three years and the permitting process for mining in the
U.S. currently takes up to ten years, eligibility for certain
mineral projects could be constantly changing during the
permitting process, creating uncertainty for the sector.\18\
H.R. 6862 would ensure that all hardrock mineral projects would
be eligible for the streamlining benefits of the FAST-41
process going forward.
---------------------------------------------------------------------------
\17\U.S. Geological Survey. Mineral Commodity Summaries 2023.
Copper, page 62. https://pubs.usgs.gov/periodicals/mcs2023/mcs2023.pdf.
\18\Minerals Make Life. NEPA Reform: Four Decades in the Making.
https://mineralsmakelife.org/blog/nepa-reform-four-decades-in-the-
making/.
---------------------------------------------------------------------------
Committee Action
H.R. 6862 was introduced on December 19, 2023, by
Representative Doug Lamborn (R-CO). The bill was referred to
the Committee on Natural Resources, and within the Committee to
the Subcommittee on Energy and Mineral Resources. On January
31, 2024, the Subcommittee on Energy and Mineral Resources held
a hearing on the bill. On March 12, 2024, the Committee on
Natural Resources met to consider the bill. The Subcommittee on
Energy and Mineral Resources was discharged from further
consideration of H.R. 6862 by unanimous consent. Representative
Doug Lamborn (R-CO) offered an amendment in the nature of a
substitute designated Lamborn_064. The amendment in the nature
of a substitute was agreed to by voice vote. Representative
Sydney Kamlager-Dove (D-CA) offered an amendment to the
amendment in the nature of a Substitute designated Kamlager-
Dove #1. The amendment was not agreed to by a roll call vote of
14 yeas to 20 nays, as follows:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
The bill, as amended, was ordered favorably reported to the
House of Representatives by roll call vote of 22 yeas to 13
nays, as follows:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Hearings
For the purposes of clause 3(c)(6) of House rule XIII, the
following hearing was used to develop or consider this measure:
hearing by the Subcommittee on Energy and Mineral Resources
held on January 31, 2024.
Section-by-Section Analysis
Section 1. Short title
This Act may be cited as the ``Mineral Mining Parity Act''.
Section 2. Definition of covered project
Section 2. Codifies ``mineral production'' as a covered
sector on the FAST-41 permitting dashboard.
Section 3. Prohibition against finalizing, implementing, or enforcing
the proposed rule related to the Scope of Mining Under the FAST
Act
Section 3. Rescinds the proposed rule titled, ``Revising
Scope of the Mining Sector of Projects That Are Eligible for
Coverage Under Title 41 of the Fixing America's Surface
Transportation Act'' (88 FR 65350), which would revise the
scope of covered projects under FAST-41 to apply only to
critical minerals mining projects rather than all mining
projects.
Committee Oversight Findings and Recommendatins
Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of
rule XIII of the Rules of the House of Representatives, the
Committee on Natural Resources' oversight findings and
recommendations are reflected in the body of this report.
Compliance With House Rule XIII and Congressional Budget Act
1. Cost of Legislation and the Congressional Budget Act.
With respect to the requirements of clause 3(c)(2) and (3) of
rule XIII of the Rules of the House of Representatives and
sections 308(a) and 402 of the Congressional Budget Act of
1974, the Committee has received the following estimate for the
bill from the Director of the Congressional Budget Office:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
H.R. 6862 would add mining projects to the list of projects
that are eligible for a program operated by the Federal
Permitting Improvement Steering Council, which facilitates
environmental reviews and permit approvals. The bill also would
disapprove a proposed rule published by the council in
September 2023 that would restrict eligibility for the program
to the mining of critical minerals as defined by the U.S.
Geological Survey.\1\
---------------------------------------------------------------------------
\1\Federal Permitting Improvement Steering Council, ``Revising
Scope of the Mining Sector of Projects That Are Eligible for Coverage
Under Title 41 of the Fixing America's Surface Transportation Act,'' 88
Fed. Reg. 65350 (September 22, 2023), https://tinyurl.com/4hmypbrr.
---------------------------------------------------------------------------
The council received $1 million annually from 2022 through
2026 from advance appropriations in the Infrastructure
Investment and Jobs Act to operate the program. Those amounts
were designated as an emergency requirement. Additionally,
Public Law 117-169, an act to provide for reconciliation
pursuant to title II of S. Con. Res. 14, provided $350 million
for those purposes in 2022. CBO projects that $25 million of
that $350 million will remain unspent under current law.
Under the bill, the council could receive more applications
for mining projects. Responding to such applications would
increase the council's operating costs and thus could increase
spending of amounts provided in P.L. 117-169 that would
otherwise not be spent. Using information from the council, CBO
estimates that enacting H.R. 6862 would not affect many current
or future mining projects; thus, any increases in direct
spending would be insignificant.
In addition, if more mining applications are approved under
H.R. 6862, the receipts collected from rents and royalties
could increase. Rents and royalties paid on eligible mining
projects on federal land are recorded in the budget as
offsetting receipts--that is, as reductions in direct spending.
A portion of those receipts are spent without further
appropriation. Because CBO expects a small number of mining
projects would be affected, we estimate that any additional
receipts and associated direct spending would be insignificant.
The CBO staff contacts for this estimate are Aurora Swanson
and Lilia Ledezma. The estimate was reviewed by H. Samuel
Papenfuss, Deputy Director of Budget Analysis.
Phillip L. Swagel,
Director, Congressional Budget Office.
2. General Performance Goals and Objectives. As required by
clause 3(c)(4) of rule XIII, the general performance goal or
objective of this bill is to amend the FAST Act to include
certain mineral production activities as a covered project, and
for other purposes.
Earmark Statement
This bill does not contain any Congressional earmarks,
limited tax benefits, or limited tariff benefits as defined
under clause 9(e), 9(f), and 9(g) of rule XXI of the Rules of
the House of Representatives.
Unfunded Mandates Reform Act Statement
According to the Congressional Budget Office, H.R. 6862
contains no unfunded mandates as defined by the Unfunded
Mandates Reform Act.
Existing Programs
Directed Rule Making. This bill does not contain any
directed rule makings.
Duplication of Existing Programs. This bill does not
establish or reauthorize a program of the federal government
known to be duplicative of another program. Such program was
not included in any report from the Government Accountability
Office to Congress pursuant to section 21 of Public Law 111-139
or identified in the most recent Catalog of Federal Domestic
Assistance published pursuant to the Federal Program
Information Act (Public Law 95-220, as amended by Public Law
98-169) as relating to other programs.
Applicability to Legislative Branch
The Committee finds that the legislation does not relate to
the terms and conditions of employment or access to public
services or accommodations within the meaning of section
102(b)(3) of the Congressional Accountability Act.
Preemption of State, Local or Tribal Law
Any preemptive effect of this bill over state, local, or
tribal law is intended to be consistent with the bill's
purposes and text and the Supremacy Clause of Article VI of the
U.S. Constitution.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (new matter is
printed in italics and existing law in which no change is
proposed is shown in roman):
FAST ACT
* * * * * * *
DIVISION D--MISCELLANEOUS
TITLE XLI--FEDERAL PERMITTING IMPROVEMENT
SEC. 41001. DEFINITIONS.
In this title:
(1) Agency.--The term ``agency'' has the meaning
given the term in section 551 of title 5, United States
Code.
(2) Agency cerpo.--The term ``agency CERPO'' means
the chief environmental review and permitting officer
of an agency, as designated by the head of the agency
under section 41002(b)(2)(A)(iii)(I).
(3) Authorization.--The term ``authorization'' means
any license, permit, approval, finding, determination,
or other administrative decision issued by an agency
and any interagency consultation that is required or
authorized under Federal law in order to site,
construct, reconstruct, or commence operations of a
covered project administered by a Federal agency or, in
the case of a State that chooses to participate in the
environmental review and authorization process in
accordance with section 41003(c)(3)(A), a State agency.
(4) Cooperating Agency.--The term ``cooperating
agency'' has the meaning given the term in section
1508.1 of title 40, Code of Federal Regulations (or
successor regulations).
(5) Council.--The term ``Council'' means the Federal
Permitting Improvement Steering Council established
under section 41002(a).
(6) Covered project.--
(A) In general.--The term ``covered project''
means any activity in the United States that
requires authorization or environmental review
by a Federal agency involving construction of
infrastructure for renewable or conventional
energy production, electricity transmission,
surface transportation, aviation, ports and
waterways, water resource projects, broadband,
pipelines, manufacturing, semiconductors,
artificial intelligence and machine learning,
high-performance computing and advanced
computer hardware and software, quantum
information science and technology, data
storage and data management, cybersecurity,
carbon capture, energy storage, mineral
production, or any other sector as determined
by a majority vote of the Council that--
(i)(I) is subject to NEPA;
(II) is likely to require a total
investment of more than $200,000,000;
and
(III) does not qualify for
abbreviated authorization or
environmental review processes under
any applicable law;
(ii) is covered by a programmatic
plan or environmental review developed
for the primary purpose of facilitating
development of carbon dioxide
pipelines;
(iii) is--
(I) subject to NEPA;
(II) sponsored by an Indian
Tribe (as defined in section 4
of the Indian Self-
Determination and Education
Assistance Act (25 U.S.C.
5304)), an Alaska Native
Corporation, a Native Hawaiian
organization (as defined in
section 6207 of the Elementary
and Secondary Education Act of
1965 (20 U.S.C. 7517)), the
Department of Hawaiian Home
Lands, or the Office of
Hawaiian Affairs; and
(III) located on land owned
or under the jurisdiction of
the entity that sponsors the
activity under subclause (II);
or
(iv) is subject to NEPA and the size
and complexity of which, in the opinion
of the Council, make the project likely
to benefit from enhanced oversight and
coordination, including a project
likely to require--
(I) authorization from or
environmental review involving
more than 2 Federal agencies;
or
(II) the preparation of an
environmental impact statement
under NEPA.
(B) Exclusion.--The term ``covered project''
does not include--
(i) any project subject to section
139 of title 23, United States Code; or
(ii) any project subject to section
2045 of the Water Resources Development
Act of 2007 (33 U.S.C. 2348).
(C) Inclusion.--For purposes of subparagraph
(A), construction of infrastructure for carbon
capture includes construction of--
(i) any facility, technology, or
system that captures, utilizes, or
sequesters carbon dioxide emissions,
including projects for direct air
capture (as defined in paragraph
(6)(B)(i) of section 103(g) of the
Clean Air Act (42 U.S.C. 7403(g)); and
(ii) carbon dioxide pipelines.
(7) Dashboard.--The term ``Dashboard'' means the
Permitting Dashboard required under section 41003(b).
(8) Environmental assessment.--The term
``environmental assessment''has the meaning given the
term in section 1508.1 of title 40, Code of Federal
Regulations (or successor regulations).
(9) Environmental document.--
(A) In general.--The term ``environmental
document'' means an environmental assessment,
finding of no significant impact, notice of
intent, environmental impact statement, or
record of decision.
(B) Inclusions.--The term ``environmental
document'' includes--
(i) any document that is a supplement
to a document described in subparagraph
(A); and
(ii) a document prepared pursuant to
a court order.
(10) Environmental impact statement.--The term
``environmental impact statement'' means the detailed
written statement required under section 102(2)(C) of
NEPA.
(11) Environmental review.--The term ``environmental
review'' means the agency procedures and processes for
applying a categorical exclusion or for preparing an
environmental assessment, an environmental impact
statement, or other document required under NEPA.
(12) Executive director.--The term ``Executive
Director'' means the Executive Director appointed by
the President under section 41002(b)(1)(A).
(13) Facilitating agency.--The term ``facilitating
agency'' means the agency that receives the initial
notification from the project sponsor required under
section 41003(a).
(14) Inventory.--The term ``inventory'' means the
inventory of covered projects established by the
Executive Director under section 41002(c)(1)(A).
(15) Lead agency.--The term ``lead agency'' means the
agency with principal responsibility for an
environmental review of a covered project under NEPA
and parts 1500 through 1508 of title 40, Code of
Federal Regulations (or successor regulations).
(16) NEPA.--The term ``NEPA'' means the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et
seq.).
(17) Participating agency.--The term ``participating
agency'' means an agency participating in an
environmental review or authorization for a covered
project in accordance with section 41003.
(18) Project sponsor.--The term ``project sponsor''
means an entity, including any private, public, or
public-private entity, seeking an authorization for a
covered project.
* * * * * * *
DISSENTING VIEWS
H.R. 6862 would codify Trump-era regulations to make all
mining eligible for compressed environmental review procedures
from Title 41 of the 2015 FAST Act (FAST-41) and prevent
finalization of the Biden administration's rulemaking limiting
FAST-41's mining coverage to critical minerals. Initially,
these environmental review procedures applied only to certain
transportation sector projects of significant cost and
complexity. Applying the FAST-41 environmental review process
to all mining will undercut thorough environmental review,
including tribal consultation, which is of specific importance
for mining projects, and exacerbate the well-documented risks
mining poses to our environment and health.
Created in 2015 by the Fixing America's Surface
Transportation Act (FAST Act), FAST-41 establishes a new
structure, procedures, and funding authorities for permitting
certain ``covered'' infrastructure projects. These procedures
include limits on public comment periods that reduce federal
agencies' flexibility to expand public comment periods as
needed for especially complex and controversial cases. FAST-41
also restricts judicial review of covered projects, limiting
the public's ability to challenge unlawful project permits.
In 2021, the Trump administration finalized regulations to
add mining as a covered sector under FAST-41. The Biden
administration has not undone these regulations but has
recently proposed a new rule that would limit the scope of
minerals eligible for FAST-41 to critical minerals. The Biden
administration's rulemaking includes an expansion of the scope
of the mining sector to include critical minerals supply chain
activities, including critical minerals beneficiation,
processing, and recycling.
Mining is particularly ill-suited for compressed
environmental reviews, given the industry's large environmental
footprint, ongoing toxic pollution, and the lack of
environmental safeguards or tribal consultation in the Mining
Law of 1872, which still governs mining on public lands today.
According to the Environmental Protection Agency, the hardrock
mining industry is consistently one of the top producers of
toxic waste in the United States. The potential risks of mining
projects go well beyond those for other sectors that qualify
for FAST-41.\1\ For example, toxic mine waste often requires
permanent storage facilities and indefinite monitoring and
treatment. Even with modern technology, accidental acid seepage
and waste releases are commonplace. This presents threats to
local communities, fisheries, and drinking water resources that
persist for decades--if not for perpetuity--after a mine is no
longer in operation.\2\
---------------------------------------------------------------------------
\1\EPA. 2022. ``TRI National Analysis: Comparing Industry Sectors''
https://www.epa.gov/trinationalanalysis/comparing-industry-sectors.
\2\Representative Raul Grijalva. January 22, 2020. ``Letter to
Alexander Herrgott.'' https://democrats-naturalresources.house.gov/imo/
media/doc/Chair%20Grijalva%20to%20Federal%20
Permitting%20Improvement%20Council%20on%20Non%20Energy%20Mining.pdf.
---------------------------------------------------------------------------
There is a limited demonstrated need to expedite the
permitting of mining projects. While the mining industry
complains about long permitting timelines, they refuse to
provide data to back their claims and instead rely on anecdotal
evidence. Independent analysts tell a different story. In 2016,
the Government Accountability Office published a report finding
that the U.S. Forest Service and Bureau of Land Management
approve mine plans on average in just two years. Rather than
government bureaucracy, it is the mining industry that
primarily causes slowdowns in the permitting process through
deficient applications, intermittent financing, corporate
indecision, and other factors.\3\
---------------------------------------------------------------------------
\3\U.S. Government Accountability Office. January 2016. HARDROCK
MINING: BLM and Forest Service Have Taken Some Actions to Expedite the
Mine Plan Review Process but Could Do More, GAO 16-165.
---------------------------------------------------------------------------
Despite this, in May 2023, the Hermosa Project, run by
Australian mining company South 32, became the first mining
project to be approved as a covered project under FAST-41. The
Hermosa Project is in the Patagonia Mountains, southeast of
Tucson, Arizona. The proposed mine would produce zinc, lead,
silver, manganese, and potentially copper. Zinc and manganese
are considered critical minerals on USGS's 2022 Critical
Minerals List.
The community nearest the Hermosa Project has expressed
significant concerns over the project's potential impact on the
scarce water resources and biodiversity, which is renowned in
the area. Community advocates have pushed for significantly
more transparency and cooperation through the FAST-41 process
and oppose mining being included in FAST-41 without significant
process improvements. In the first public comment period for
permitting the Hermosa Project, both the county and the town
nearest the proposed mine requested an extended comment period
to provide for additional bilingual public education sessions
for the primarily Spanish-speaking population. This request was
denied by the lead agency, limiting public participation.
The development of the Hermosa Mine demonstrates that FAST-
41's project-specific timetables do not conform with the well-
documented risks mining poses to land, water, public health,
and other resources, as evidenced by the numerous issues that
have already emerged. The specific timetables also run counter
to the time, care, and attention agencies must dedicate to
tribal consultation for mining projects. This is especially
concerning as many minerals key to the energy transition,
including 97% of nickel, 89% of copper, 79% of lithium, and 68%
of cobalt reserves and resources in the U.S., are located
within 35 miles of Native American reservations.\4\
---------------------------------------------------------------------------
\4\Samuel Block. June 3, 2021. ``Mining Energy Transition Metals:
National Aims, Local Conflicts.'' https://www.msci.com/www/blog-posts/
mining-energy-transition-metals/02531033947.
---------------------------------------------------------------------------
Raul M. Grijalva,
Ranking Member.
[all]