Interior Department Solicitor William G. Myers III has issued a decision removing controversial language in mining regulations imposed by the Clinton administration in its final day of office.
The Clinton rules added several objectively defined legal hurdles to the mining of gold, copper, lead, and zinc on public lands, but also included language giving the Interior Secretary discretionary authority to veto any mining that could cause “substantial and irreparable harm” to the community.
Myers’ October 25 decision retains all of the Clinton rules’ objective hurdles, but eliminates the subjective “substantial and irreparable harm” language.
“Our solicitor has just issued a legal opinion that says denial of a mining permit on the grounds of ‘substantial and irreparable harm’ is not legally supportable,” stated Larry Finfer, a spokesperson for the Bureau of Land Management.
Finfer gave three important reasons for the Myers decision.
First, he noted, the Interior Department already has the authority to deny mining permits if the proposed mine does not comply with clean air and water laws. Second, the public was never given the opportunity to comment on the “substantial and irreparable harm” standard. Third, it would not be fair to reject a mining permit according to a subjective and unpredictable standard after a mining company met all its objectively defined obligations in the lengthy permit process.
The repeal of the discretionary standard, observed Finfer, eliminates the very real possibility that the Interior Secretary would tell a mining company, “You’ve cleared all 10 hurdles, but we’re saying you lose anyway.”
“Tempering of the excesses”
The Clinton rules, according to industry observers, marked the culmination of a decade of government hostility to mining that sent companies and jobs overseas, resulting in an over-reliance on foreign minerals. Jack Gerard, president of the National Mining Association, noted that Myers’ decision represents a welcome “tempering of the excesses that occurred in the previous administration.”
Gerard reported that investment in mineral development in America since 1993 has fallen by 88 percent, leaving America seven times more dependent on foreign mineral sources than it was at the beginning of the Clinton administration.
“We hope this is a signal that we will stop that negative slide that has chilled the U.S. industry and has encouraged us to take our resources elsewhere,” Gerard stated. Not everyone was pleased with Myers’ decision. Lexi Shultz, legislative director of the Mineral Policy Center, a Washington, DC environmentalist group, complained the ruling symbolized a Bush administration “handshake with the industry.” She said it perpetuated government subsidies allowing companies “to take billions of dollars of valuable minerals out of public land for free without paying a royalty and without having to fully consider the damage that they leave behind.”
In Congress, however, Myers’ repeal of the subjective language of the Clinton rules found support on both sides of the political aisle. Democratic Senator Harry Reid of Nevada, whose state would be one of those most affected by the 11th-hour Clinton rules, led the fight to allow the Bush administration to revisit the Clinton regulations.
Responding to a critical editorial in the New York Times, Interior Secretary Gail Norton reiterated the Bush administration will retain the objective elements of the Clinton rules, which represent a significant tightening of mining regulations.
“We have required that companies that operate on federal lands post performance bonds to cover the costs of reclaiming land and also to provide an incentive for companies to protect environmental resources,” stated Norton. “In addition, we retained strict standards to address cyanide and to protect areas from acid mine damage. . . . To further address appropriate regulation of mining on public lands, I have proposed principles for reform of the 1872 mining law. These would empower us to levy fines against violators and to require payment of royalties.”