Posted on February 10, 2023 by Seth Jaffe
Earlier this week, the decision in Bartell Ranch v. McCullough generally supported the Bureau of Land Management’s review under NEPA and related statutes of a lithium mine near Thacker Pass, Nevada. If approved, Thacker Pass would be the largest lithium mine in the United States. The decision and the entire review of the mine are important, given how controversial large mining projects can be and how important lithium and other minerals are to building a zero-emission economy.
Here are the significant takeaways:
- Acknowledging the size and scope of the Thacker Pass mine, it’s clear that this was basically a plain vanilla review, that BLM did a perfectly adequate job assessing its potential impacts, and that the BLM analysis rightly survived judicial scrutiny. Nonetheless, while the NEPA process took less than a year from BLM’s notice that it would prepare a Draft Environmental Impact Statement to the completion of the Final EIS, it took another 2+ years to get to a District Court decision. We’re running out of time folks. We’re going to have to accept some compromises – including some environmental costs – if we’re going to build a zero emissions economy. And if we don’t start making progress on speeding environmental reviews, we’re going to regret it later.
- The Court did reject one significant part of BLM’s record of decision: the determination that BLM could approve land for waste dumps and tailings without first making a finding that there are valuable minerals on the land to be used for waste disposal. This may be a correct interpretation of the Mining Law of 1872, but it makes no sense and only demonstrates that we have to update the Mining Law to meet 21st Century requirements. Why should BLM have to make any such demonstration? Don’t we want waste disposal to occur on land that does not have valuable minerals?
- Based on the conclusion that BLM violated the mining law, the Court remanded the ROD for Thacker Pass, but did not vacate it, finding that it was likely that BLM could cure the error. It’s noteworthy that Lithium Nevada, the project proponent, argued that vacatur would also be improper because lithium mining is “required to keep pace with transportation electrification and carbon reduction, in addition to providing lithium products needed for national security.” The Court concluded that it did not need to decide on the basis of what would be a somewhat novel argument, but I find that unfortunate. We are going to have to start developing doctrines that speed review of these cases. We’re also going to have to put a thumb on the scales in support of projects that are necessary to build the economy that can thrive without GHG emissions.
All in all, a reasoned decision that will probably allow Thacker Pass to proceed at some point, but one which nonetheless adopted a judicial business as usual approach that may not be up to the challenges we face.