ADEQ shows a better way for environmental permitting and protection
In a previous post, “How NEPA crushes productivity,” I wrote about the National Environmental Policy Act (NEPA), a byzantine Federal bureaucratic maze that stifles productivity. The length, complexity and uncertainty of the permitting process of NEPA now takes a mining company about 10 years to obtain the necessary Federal permits for a major project. That puts the U.S. at a competitive disadvantage since other countries are more efficient in this regard. For instance, permitting time in Canada and Australia is typically less than two years.
In contrast to the Federal NEPA process, ADEQ has a process that gets the job done much more efficiently and now ADEQ is striving to make it even better. The ADEQ system should be a model for the Feds.
I asked ADEQ Director Henry Darwin some questions about the philosophy and workings of ADEQ:
Wryheat: 1. What advancements in regulations and permitting time lines has ADEQ made recently?
ADEQ has applied “Lean techniques” to its permitting processes and is now making permitting decisions much faster. Permits that previously required 18 months to process are now being processed in less than a year. Certain interim permitting steps, administrative review for example, previously took up to 60 days and can now be completed in a single meeting.
Wryheat note: “Lean techniques” according to Wikipedia “is a production practice that considers the expenditure of resources for any goal other than the creation of value for the end customer to be wasteful, and thus a target for elimination. Working from the perspective of the customer who consumes a product or service, ‘value’ is defined as any action or process that a customer would be willing to pay for. Essentially, lean is centered on preserving value with less work.”
Wryheat: 2. Do you believe that economic activity, especially mining, can co-exist with good environmental stewardship? If so, how?
I have long believed environmental protection and economic development go hand in hand. It is a little recognized fact that poor countries and countries that are emerging from poverty have the most difficult time protecting the environment. The converse is also true; a strong economy provides society the wherewithal to protect the environment. As a result, the best indicator of a healthy natural environment is often a healthy economic environment.
Wryheat: 3. To some, mining and environmental quality are opposites. How does ADEQ reconcile the apparent conflict?
This is a false choice. Prudent use of natural resources and environmental protection are not at odds. Conflict between the two only arises at the extreme of either activity, and legal protections exist to minimize mining’s adverse impacts. ADEQ doesn’t get to decide whether a mine opens, but through our permitting processes, we ensure mining operations occur in an environmentally responsible way that limits harmful emissions to our air, water and soil. It’s worth noting, as important as the mining industry is to Arizona’s economy, our state leaders recognized the value in protecting our precious natural resources. This is why they passed the Environmental Quality Act in 1986, which not only established ADEQ as a separate, cabinet level agency, but also created the Aquifer Protection Permit program, the first comprehensive groundwater protection program in the nation. As a result, every mine that operates in Arizona must obtain a permit that ensures groundwater is protected.
Wryheat: 4. What do you regard as the minimum time for ADEQ to vet a major project and what does the process consist of?
In the recent past we have permitted several large projects in as little as six months, but timeframes are project-specific and providing a general timeframe would be subject to error. We encourage any party who is planning a major project to visit with us to establish a plan for expeditious permitting. An expeditious process consists of the following major steps:
Pre-Application Meeting: Face to face pre-application meeting
Administrative Review: A real time and face to face administrative review meeting to make sure the applications is complete
Substantive Review: Regular phone contact between the ADEQ permit writer and the applicant’s consultant during substantive review
Applicant Review of Permit Conditions
Public Comment Response
Wryheat: 5. Does ADEQ regard itself, in its role of protecting the environment, a partner of business or a strict watchdog, or both? How is that reconciled?
As I said in my response to Question 2, above, a strong economy and safe, healthy environment are not adversarial. In fact, one of our agency’s strategic goals is to support environmentally responsible economic growth. Companies that do business in Arizona often require our products and services (permits, or example) in order to operate. Such companies are, in fact, our customers, and ADEQ must deliver value as our customers define it. This doesn’t mean we give our customers everything they want, because the customer is not always right. We have shareholders, too, namely taxpayers, who require a solid return on their investment; they want clear skies, clean water and land that is safe to roam, work and play. There must always be a healthy balance between delivering customer value and providing that solid return on investment for Arizona taxpayers.
I asked some representatives of the mining industry about their perception of ADEQ.
From Kathy Arnold, VP Environmental & Regulatory Affairs, Rosemont Copper Company:
ADEQ has made great strides with permitting both in setting specific requirements and in setting specific timeframes. This gives businesses the certainty necessary for determining timeframes. ADEQ has been working on developing processes and rules for programs and their stakeholder system allows people to give input necessary so rules can be fully vetted and understood before implementation. The overall process for permits is fair and can be followed without political interference. The enforcement of the rules and permits is tough but again fair.
From Steve Trussell, Executive Director, Arizona Rock Products Association:
The ADEQ has recently worked on several projects that have been of key interest to citizens of our state in terms of air and water quality, but two that come to mind as of late are efforts to respond to components of Governor Jan Brewer’s Four Cornerstones Document which was presented at the State of the State Address in January of this year.
The ADEQ began the laborious task of process waste reduction regarding the amount of steps it takes to get a permit out the door by reducing licensing time frames. ADEQ hosted events which included stakeholders in order to identify the factors that arise in permitting that could be potentially holding up permit approvals. Permitting can be a challenge depending on the specific project and the current regulatory requirements and is a key factor in business investment in Arizona. ADEQ has employed LEAN process improvements that have and will continue to reduce permitting delays for both air and water permitting and will be implementing the lessons learned across the boards and within all sections of the agency. The agency reports that processing times have been reduced by one-third and have allowed companies to allocate valuable resources elsewhere.
Additionally, the ADEQ will further enjoy expeditious submittals, approvals and reporting compliance as a result of their proposed e-portal which will allow the agency to move in a paperless direction. The portal will enable a permitted source to track, report and submit payment on all of their various permits with the agency, and all in one place. A process that once required a tremendous amount of time and effort from a record keeping and delivery standpoint would now be possible at the project site.
These are merely a few examples of progressive steps the ADEQ has taken to be protective of the environment while addressing time and resource sensitivity of Arizona’s businesses. Governor Brewer had this to say about the initiative, “The completion of this project, with its cost savings, convenience, and compliance assistance, will be a boon to business regulated by the ADEQ and help attract new business to Arizona” and the members of the Arizona Rock Products Association. couldn’t agree more. All business organizations regulated by the ADEQ should encourage the legislature to support this laudable effort.
Mr. Darwin sent me some information on the proposed e-portal Mr. Trussel mentioned. The new site will be called MyDEQ. The program “will funded through existing revenue ($10 million) from the Vehicle Emissions Inspections Fund.”
Here are some highlights of the proposed program:
The Federal government should take notice of ADEQ methods and try to emulate them.
Below is an article and video of Southern Arizona’s brightest GEM. Dr. Mary Poulton is a humble yet passionate advocate of her profession.
Thank you Dr. Poulton for all you do.
Mining the Future
Posted on: February 2, 2011 in Research & Discovery
On December 9, 2010, Mary Poulton, PhD, was officially inducted as a Distinguished Professor, one of the highest honors a UA professor can achieve. But if you ask the head of the UA Department of Mining and Geological Engineering and director of the new Lowell Institute for Mineral Resources what inspired her to this life of achievement, she’ll tell you, straight up: it all started with a simple box of rocks.
Distinguished Professor Mary Poulton shows off a favorite sample, a selection from her collection that still has all the magic of her childhood box of rocks.
The value of mining in Arizona
If we remove metals from the service of man, all methods of protecting and sustaining health and more carefully preserving the course of life are done away with. If there were no metals, men would pass a horrible and wretched existence in the midst of wild beasts… -Georgius Agricola, in De Re Metallica, 1556.
For Arizona, it is not just metals. Arizona produces sand and gravel, limestone for cement production, coal for electrical generation, and a variety of industrial minerals which contribute almost $2 billion to Arizona’s economy (see here).
Arizona has a long history of mining. There is archeological evidence that cinnabar, coal, turquoise, clay, pigments, and other minerals were mined in Arizona beginning at least 3,000 years ago. (See A History of Mining in AZ by the Arizona Mining Association.)
According to the Arizona Mining Association, Arizona currently produces 68% of domestically mined copper. With that copper production comes by-product molybdenum, gold, silver, platinum, and rhenium. Incidentally, The Sierrita Mine south of Tucson is currently the only domestic producer of rhenium, a metal used in high-temperature, super-alloy turbine blades for jet aircraft and other land-based turbines. The Sierrita plant processes output from other mines on a toll basis. It may soon be joined by a second rhenium plant at the Kennecott (Rio Tinto) mine in Utah.
The direct and indirect economic impact of copper mining on Arizona’s economy is about $4.6 billion annually. That includes $3.2 billion in personal income, $500 million in state and local government revenues, and 49,800 high-paying jobs for Arizonans. Average labor income of mining company employees (including benefits) is $108,000 per worker vs. $47,000 for all Arizona workers. If we add in non-metallic, non-fuel, minerals, then Arizona produced about $8 billion worth of mineral products in 2012 according to the U.S. Geological Survey. Arizona ranks second, after Nevada, in value of total mineral production. The U.S. total value of mineral production was about $76 billion which supported more than 1.2 million jobs in 2012.
Arizona is endowed with great mineral resources as shown on the map below prepared by the Arizona Geological Survey.
Currently ASARCO and Freeport-McMoRan Copper & Gold are the two biggest copper producers in the state. ASARCO operates three mines and a smelter. According to the Southern Arizona Business Coalition, in 2012 ASARCO paid wages and benefits of $215.8 million, property, severance, and sales taxes of $47.2 million, and employed 2,198 people in Arizona. Freeport operates mines in Safford, Morenci, Bagdad, Miami, and Sierrita. They paid wages and operational spending of $860 million in 2012, taxes of $274 million while employing 7,600 people directly and indirectly employing an additional 30,000 people.
In addition to past and current mining, there are many projects on the horizon, some in the exploratory stage, others navigating the byzantine regulatory permitting process. (See my posts: Mining and the bureaucracy and How NEPA crushes productivity)
Perhaps the largest project is that of Resolution Copper near the town of Superior just west of the famed Globe-Miami mining district and just north of ASARCO’s Ray mine. This is a bold undertaking because the orebody is 7,000 feet below the surface. Resolution says that at peak production, this mine will be the largest copper mine in North America, producing over one billion pounds of copper per year. Resolution estimates that over the 64-year life of the mine, the project will generate $61.4 billion in economic value, provide $20 billion in tax revenues, and provide 3,700 permanent jobs.
The Rosemont copper mine south of Tucson is nearing the end of its long journey through the regulatory maze, and mine construction may begin early next year. This mine will generate 2,900 Arizona jobs and inject $19 billion into Arizona’s economy and pay $404 million in local taxes over its 20-year projected life. The mine expects to produce 243 million pounds of copper per year.
Curis Resources is developing an in-situ copper mine near Florence, Arizona. In this project, instead of mining rock, Curis Resources “seeks to dissolve copper minerals from an underground deposit by introducing water with a lowered-pH (making it slightly acidic).This low-PH, water-based solution dissolves the copper and allows it to be pumped to the surface through a continuous loop water treatment system.” This deposit, lying 400-to 1200 feet below the surface contains approximately 2.84 billion pounds of copper.
Curis estimates that over the projected 28-year life of the project, it will generate $2.2 billion in economic activity for the state of Arizona, $1.1 billion in economic activity for Pinal County, $325 million in taxes and royalties for Arizona government, and $1.46 billion in increased personal income in Arizona, 170 direct jobs at the project site in Florence, and 681 jobs in the state of Arizona.
The I-10 copper deposit, located along Interstate 10 between Benson and Willcox, Arizona, is being investigated as another in-situ copper leaching project by Excelsior Mining Corporation, a Canadian junior company. They estimate the deposit currently contains an indicated oxide copper resource of 3.21 billion pounds and an additional inferred oxide copper resource of 0.88 billion pounds.
Wildcat Silver Corporation is in the exploration stage of its Hermosa Project which is evaluating the silver-manganese potential in the historic Hardshell mining district near Patagonia in Southern Arizona. Their preliminary economic assessment estimates a measured and indicated resource of 236 million ounces of silver and an inferred silver resource of an additional 79 million ounces. Project life is estimated at 16 years. Wildcat estimates that annual production will be 4.1 million ounces of silver, 233,000 tons of manganese carbonate, 20,187 tons of zinc cathode, and 960 tons of copper.
Copper Creek is an old mining district located on the east bank of the San Pedro River and on the western slope of the Galiuro Mountains about 75 miles northeast of Tucson. The property has been acquired by Redhawk Resources, a Canadian junior mining company that plans to develop an underground mine for copper, molybdenum, and silver. Redhawk estimates a resource of 7.75 billion pounds of copper, 150 million pounds of molybdenum, and 32 million ounces of silver.
The Oracle Ridge mine is a small, underground copper mine in the Santa Catalina Mountains just north of Tucson. The mine was operated intermittently, most recently from 1991-1996. The mine is being developed by a junior Canadian mining company, Oracle Ridge Copper (project website). The company anticipates employing about 200 people to run the mine which has a projected life of 11 years. The mine will produce 140 tons of concentrate (about 30% copper) a day which will be trucked off the mountain and transported to a smelter.
In northern Arizona, near the Grand Canyon are over 1,300 known or suspected breccia pipes many of which contain uranium oxide as well as sulfides of copper, zinc, silver, and other metals. According to the Arizona Geological Survey, “Total breccia-pipe uranium production as of Dec. 31, 2010, has been more than 10,700 metric tons (23.5 million pounds) from nine underground mines, eight of which are north of Grand Canyon near Kanab Creek.” This area is mired in fears of contamination of the Colorado River (see Uranium mining and its potential impact on Colorado River water) and a 20-year, million-acre mineral entry withdrawal by the Department of the Interior.
In northeastern Arizona there is potential for a major potash deposit. American West Potash has recently delineated, a considerable resource estimated at 158 million metric tons of sylvinite (a mixture of sodium and potassium chloride, not to be confused with sylvanite, a gold telluride), with about 16 million metric tonnes of K2O; and inferred resources of 560 million metric tonnes of sylvinite with just over 66 million metric tons of K2O in the Holbrook Basin, about 30 miles east of Holbrook, Arizona.
Arizona currently has three producing gold mines and several other prospects being actively explored for gold (see here).
“In 2011, the state of Arizona led the United States in the production of gemstones. Arizona has long been famous as a producer of turquoise, peridot and petrified wood. Gemstones such as azurite, chrysocolla and malachite are associated with the Arizona’s many copper deposits and have a long history of being produced there. Agate, amethyst, garnet, jade, jasper, obsidian, onyx, and opal have all been found in Arizona and used to make gems.” – Geology.com
As you can see, besides currently producing mines, Arizona holds future potential that will add jobs and economic value to the local, state, and national economy – if they can get through the bureaucratic regulatory maze.
Remember, the value of mining is not just the money, it is in providing the products we need to keep our civilization going. If it can’t be grown, it has to be mined.
Grijalva pushing for fees on mines
Bill would make firms pay royalties, establish hard-rock cleanup fund
U.S. Rep. Raúl Grijalva of Tucson and two others are bringing back an oft-tried bill to overhaul the country’s 142-year-old hard-rock mining law and charge royalties for copper and other non-coal mining operations on public lands.
The bill would also prevent mining on certain kinds of environmentally sensitive public lands and establish an abandoned mine cleanup fund, paid for by a separate fee on mining companies.
The royalty would be set at 12.5 percent on the gross income derived from mining claims on federal land.
Mining companies have long opposed a royalty of that size but have said they’d be willing to support a lesser but as yet undetermined royalty.
If the royalty – the same as paid by oil and gas companies leasing federal lands – were established, the new bill would have it used to pay down the annual federal budget deficit, or to reduce long-term national debt if no annual budget deficit exists.
“This is about improving our financial picture, our environment and our corporate governance practices all at the same time,” Grijalva said in a news release Friday announcing the legislation. “This industry has been enjoying outdated loopholes and keeping billions of dollars that other industries have paid back to the public. We need to start reclaiming land, cleaning up our landscapes and reinvesting in jobs, and this bill is the right way to go.”
Other sponsors of the Abandoned Mine Cleanup and Taxpayer Fairness Act are U.S. Reps. Ed Markey of Massachusetts and Rush Holt of New Jersey. They and Grijalva, who are all Democrats, hold leadership positions on the House Natural Resources Committee. Grijalva is the top Democrat on the committee’s Public Lands Subcommittee.
Mining said to be different
Hard-rock mining companies argue they are different from energy firms and deal with a unique market and development challenges.
That’s why they say a 12.5 percent royalty would be too burdensome.
They also say the proposed rate is higher than in any other country in the world and could cripple future investments.
Oil and natural gas removed from federal lands can be sold immediately, but hard-rock minerals need expensive processing once they’re out of the ground, Luke Popovich, a National Mining Association spokesman, has said in the past.
“Just because oil and gas have been paying royalties on federal lands, it doesn’t mean that therefore hard-rock mining should be paying royalties,” Popovich said last year.
It’s true that no severance exists now, Harold Roberts, an executive with Energy Fuels Inc., a uranium mining firm, said at a recent hearing of the House Energy and Mineral Resources Subcommittee, the environmental news service Greenwire reported.
“But we pay a lot of state taxes, we pay federal taxes, we employ a lot of people with very high-paying jobs,” he said.
Modern law urged
It’s time for a modern mining law that recognizes some places need to be protected from mining, gives taxpayers a fair return, and ensures that companies act responsibly, said Lauren Pagel, policy director for Earthworks, a Washington, D.C.-based environmental group.
“This bill stops million-dollar giveaways to mining companies, gives the public a say in where mining should occur on public land and protects our increasingly scarce drinking water. It says enough is enough,” Pagel said in Grijalva’s news release.
Specifically, besides the royalty provision, the new bill would:
• Protect federal Areas of Critical Environmental Concern, national Wild and Scenic Rivers and federally designated roadless areas, from future mining. Currently, mining is barred in federal wilderness areas. States and tribes could submit proposals to withdraw areas from future mining claims.
• Establish a fund to clean abandoned hard-rock mines, to be paid for by a 7-cent-per-ton fee charged to mining companies on displaced material.
• Direct the Interior secretary to issue federal regulations setting mine reclamation standards. A mining company would be required to restore lands to uses that they could have supported before land disturbance.
• Allow citizens to sue violators, including the U.S. Interior and Agriculture secretaries.
Udall pushed similar bills
Congressional Democrats and environmentalists have pushed unsuccessfully for these and similar measures since the 1970s, when the late Rep. Morris Udall, like Grijalva a Tucson Democrat, had to withdraw a mining reform measure after small miners in the Tucson area led a protest against it.
The issue of mining reform came up during a hearing of the Energy and Mineral Resources Subcommittee earlier this month, Greenwire reported.
Republicans and companies said they could be willing to accept changes but that Democratic legislation could hurt companies and domestic production.
Chairman Doug Lamborn, a Colorado Republican, said, “While many of us support reforming the 1872 law, the question of how and what is subject to great debate and is an area where members aren’t nearly as far apart as the special interests would make it appear,” Greenwire reported.
Last December, Grijalva and U.S. Sen. Tom Udall of New Mexico released a report saying that the dollar value of hard-rock minerals mined on federal land by companies is unknown because royalties aren’t charged on their extraction. The report was written by the Government Accountability Office, Congress’ investigative arm.
“This report points out the obvious – we don’t value minerals extracted from public lands. All because of the 1872 Mining Law, there is no royalty,” said Grijalva at that time, referring to the 140-year-old law passed to encourage mining companies to enter federal land.
Now, in the Senate, Udall says he is also working on a mining reform bill that industry sources hope is closer to a compromise than the House version, Greenwire reported. Senate Majority Leader Harry Reid, a Nevada Democrat, has also expressed support for mining reform as long as it is fair to hard-rock mining companies, a major presence in his state.
Contact reporter Tony Davis at email@example.com or 806-7746.
Grijalva’s anti-jobs bills
The “Southern Arizona Public Lands Protection Act of 2013” H.R. 1183, proposes to ban new mining claims. The Act will, subject to valid existing rights, withdraw “all forms of entry, appropriation, and disposal under the public land laws; location, entry, and patent under the mining laws; and operation of the mineral leasing and geothermal leasing laws, and the mineral materials laws” on all National Forest and Bureau of Land Management lands in Pima and Santa Cruz Counties. Grijalva has introduced similar bills every year since 2007. This will preclude all new mineral exploration in Southern Arizona.
Southern Arizona is mineral rich with several operating mines, soon to be operating mines, and very good country for mineral exploration.
Arizona mining directly employs 11,300 people, who earned $1.22 billion in 2011. Arizona mining companies spent a total of $2.80 billion in 2011 purchasing goods and services from other Arizona businesses which supported an addition 8,700 jobs. In 2011, the mining companies themselves paid $212 million in business taxes to Arizona governments. Employees of mining companies are estimated to have paid $96 million in individual taxes.
Grijalva states concern about our “valuable natural heritage” but seems to ignore the fact that mining is part of that heritage.
Mr. Grijalva notes on his website that he is against a land exchange that Resolution Copper is seeking with the Forest Service to enable Resolution to develop a copper mine near Superior, Arizona. The proposed underground copper mine could supply 30% of America’s copper needs and bring $1 billion per year to the state’s economy for 60 years. In the land exchange, Resolution Copper would get 2,422 acres from the Forest Service in exchange for 5,344 acres of environmentally sensitive land.
Grijalva’s “Grand Canyon Watershed Protection Act” would make permanent the “temporary” withdrawal (for 20 years) of one million acres near the Grand Canyon to prevent uranium mining. Uranium mining on the Colorado Plateau near the Grand Canyon poses no danger to the Colorado River water quality according to several studies. (See: Uranium mining and its potential impact on Colorado River water)
The “Santa Cruz Valley National Heritage Area Act” would establish a 3,325 acre National Heritage Area in Pima and Santa Cruz Counties which could have adverse affects on private property.
For a long time, Mr. Grijalva has been a tool of the environmental industry to the detriment of his constituents, their jobs, their safety, and the Arizona economy. He has supported establishment of wilderness areas along the Mexican border which would interfere with the Border Patrol’s ability to monitor the border.
As one of Mr. Grijalva’s constituents, I urge him to show more concern for people and their economic environment.
Another federal coverup, how environmental laws waste money
In a previous post, I discussed how the structure of environmental laws encourages a cozy “sue and settle” relationship between some environmental groups and federal regulatory agencies. This quirk of the law allows the agency to obtain court sanctioned, negotiated settlements that bypass input from affected parties and the public. This structure of environmental laws allows environmental groups to impose delay after delay in federal decisions by charging that the federal agency failed to follow proper process. This wastes taxpayer money both directly due to delay and from the need of the federal agency to defend against the litigation or repeat the process under the environmental laws.
Attorney Karen Budd-Falen says this practice is both a scandal and waste of taxpayer dollars. The following is her charge (I’ve made some minor edits for clarity):
This is a plea for help, to raise awareness and public outcry regarding yet another federal government cover-up. The scandal –- the Justice and Treasury Departments’ refusal to inform the American taxpayer how much, and for what, their tax dollars are being spent and … the inability of Congress to put forth legislation that requires this information to be available to the American public. How can there be reform of a crisis (or how can radical environmental groups prove that our claims of abuse are blown out of proportion) without transparency and an accounting?
According to a study from Drexel University, there are 6,500 national and 20,000 local environmental organizations with an estimated 20-30 million members. This study opines that the “environmental movement” dwarfs other modern social movements such as the civil rights or peace movements. Because it would be impossible to study all 6,500 national groups, we reviewed all the federal district court complaints over a series of years for just 3 of these groups and found:
–Thirty-five percent (35%) of federal court complaints are filed ONLY based on a missed procedural step under the National Environmental Policy Act (NEPA);
–Twenty nine percent (29%) of federal court complaints are filed ONLY based upon missed timelines under the Endangered Species Act (ESA):
–Eleven percent (11%) of all federal court complaints are filed because of a failure to complete the process for considering an action under “Section 7″ of the ESA.
Importantly, these are not cases where the federal court can rule that there is harm to the environment or that additional substantive actions are necessary; the ONLY thing a court can do is send the case back to the federal government for more process.
But that is not why this litigation is filed: litigation is filed because the courts have the power to delay private lives and livelihoods while the federal government completes more process. The harm to American families is not whether the federal government can comply with a process, the harm is in the endless delay in issuing a decision so that America can move forward. It is red-tape at its [worst], and radical environmental groups are absolutely making the most of the red tape and killing [the livelihoods of] American families in the meantime.
Let me give you more details:
As stated above, this firm reviewed the federal court complaints to analyze the claims underlying each of their cases; the families that are being targeted by the litigation; and what a federal court could do to grant the relief requested. Over 400 federal court complaints individually analyzed were filed by either the Western Watersheds Project (WWP), WildEarth Guardians (WEG) or the Center for Biological Diversity (CBD). WWP’s Policy Memos list as a “to do”: “Get all cows and sheep off federal lands ASAP!” The WEG uses ” litigation, science, public outreach and organizing, the media, and lobbying” to make progress towards their goals of phasing out fossil fuels, obtaining formal listings of species under the Endangered Species Act; ensuring public lands “are not destroyed” by “over development, overgrazing, or natural resource extraction.” CBD is noted as a group that uses litigation and petitions to “effect change.” Its campaigns include listing species, stopping unsustainable human population growth and species extinction crisis and opposition to motorized recreation.
For these groups, we documented:
The National Environmental Policy Act (NEPA) is the litigation tool of choice for the WWP and CBD, with 58% and 36% of their complaints respectively including a NEPA claim. NEPA is a process; according to the Supreme Court, NEPA’s purpose is “to ensure a fully informed and well-considered decision, not necessarily a decision the judges of the Court of Appeals or of this Court would have reached had they been members of the decision making unit of the agency.” Thus, the courts enforce the NEPA process, but rarely over turn the substance of the federal agency decision.
The problem, however, is that the courts are willing to enjoin or stop a project or decision until the federal government complies with the NEPA process. So what does this mean for American families? Consider that 89% of the federal district court complaints filed by WWP directly attack livestock grazing by claiming a violation of a NEPA procedure and then seeking to stop (temporarily or permanently) a rancher’s use of the lands he has used for generations because the federal government violated the NEPA process. NEPA is a powerful hammer to eliminate these families because if they rely on the federal government to make a decision and the federal government cannot get through enough procedural hoops to make a decision, that American family cannot continue to make a living. These ranch families are not the only ones under attack because of litigation over process. The industries that produce America’s energy from our natural resources are bearing the brunt of the NEPA litigation from the WEG and CBD, specifically 22% and 18% of the federal court complaints respectively oppose natural resource producing power plants, energy production, and mining. Even “green energy” is now being attacked by the WWP, CBD and WEG as part of their litigation strategy. Again, the issue being litigated is not whether energy production is beneficial or detrimental to the environment, but whether the federal government properly completed the process. And just like the harm to the ranching families, the Courts can stop all movement until the NEPA process is complete and the radical groups cease their litigation wanting more and more process.
Another huge litigation arena is the federal government’s compliance with the timelines in the Endangered Species Act. Over 46% of the cases filed by the WEG are ONLY to force the federal government to comply with these time frames; 30% of the CBD cases and 25% of the WWP cases contain the same claims. As with NEPA, the courts cannot enforce any listing or critical habitat decision; the court can ONLY hold that the federal agencies failed to comply with the timelines and then pay attorneys fees to these radical groups because the federal government cannot meet the time-frames set by Congress. Attorney hourly fees can range from $500.00 per hour to $750.00 per hour. And it has cost the American taxpayers millions of dollars paying radical groups to harm American workers.
American families are being targeted by groups being paid your tax dollars to put Americans out of work, not in the name of environmental protection, but in the name of procedures and technicalities. Please contact your Congressional Representatives; we have to stop yet another federal government cover-up. We need an accounting now.
Environmental laws, as currently structured, contain too many bureaucratic hoops and traps that have nothing to do with environmental issues. For many federal agencies it is all about process rather than substance and good environmental stewardship. Environmental groups have learned to take advantage of the bureaucratic hoops and traps to delay the process and enrich themselves to the detriment of American families, industries, and our economy.
How NEPA crushes productivity
NEPA, the National Environmental Policy Act, was signed into law in 1970 by President Richard Nixon with the intent to assess environmental impacts of Federal projects. “In enacting NEPA, Congress recognized that nearly all Federal activities affect the environment in some way and mandated that before Federal agencies make decisions, they must consider the effects of their actions on the quality of the human environment.” NEPA is administered by the Council on Environmental Quality within the Executive Office of the President.
Although established with good intentions, the reality is that NEPA has turned into a byzantine bureaucratic maze that stifles productivity. For instance, remember a few years ago when President Obama touted “shovel ready projects” to get the economy working again? Well, those “shovel ready projects” were delayed because they had to contend with NEPA. Before a single shovel can hit the dirt it usually takes more than five years for the average Federal project to jump through all the normal environmental hoops. Some private projects take longer, for example the proposed Rosemont Copper project is seven years into the permitting process.
Hal Quinn, president of the National Mining Association, notes that permit delays are among the biggest hurdles for mineral development. “The length, complexity and uncertainty of the permitting process are the primary reasons investors give for not investing is U.S. minerals mining. In the U.S., necessary government authorizations now take close to 10 years to secure, resulting in decreased competitiveness and increased reliance on foreign sources of minerals.” Permitting time in Canada and Australia is typically less than two years.
That being said, let’s look at how NEPA should theoretically work. The Council on Environmental Quality has published a Citizen’s Guide to NEPA, which I will summarize with excerpts and comments:
NEPA applies to a very wide range of Federal actions that include, but are not limited to, Federal construction projects, plans to manage and develop Federally owned lands, and Federal approvals of non-Federal activities such as grants, licenses, and permits.
NEPA requires Federal agencies to consider environmental effects that include, among others, impacts on social, cultural, and economic resources, as well as natural resources.
Frequently, private individuals, companies, and municipalities will become involved in the NEPA process when they need a permit issued by a Federal agency. Federal agencies usually require the private company or developer to pay for the preparation of analyses, but the agency remains responsible for the scope and accuracy of the analysis.
Although many Federal agencies get involved, there are three Federal agencies that have particular responsibilities for NEPA. Primary responsibility is vested in the Council on Environmental Quality. The Environmental Protection Agency (EPA) reviews environmental impact statements (EIS) and some environmental assessments (EA) issued by Federal agencies. The third agency is the U.S. Institute for Environmental Conflict Resolution (located within the Morris K. Udall Foundation, a Federal agency located in Tucson). This agency is supposed to provide an independent, neutral, place for Federal agencies to work with citizens as well as State, local, and Tribal governments, private organizations, and businesses to reach common ground.
Navigating the NEPA process:
Once the lead Federal agency has received a proposed action, it has three possible actions: it can issue a Categorical Exclusion (CE), require an Environmental Assessment (EA), or require an Environmental Impact Statement (EIS).
A Categorical Exclusion means that the agency has determined that the proposed action will not have a significant effect on the quality of the human environment.
In an Environmental Assessment, the purpose is to determine the significance of the environmental effects and to look at alternative means to achieve the agency’s objectives. The EA is intended to be a concise document that (1) briefly provides sufficient evidence and analysis for determining whether to prepare an EIS; (2) aids an agency’s compliance with NEPA when no environmental impact statement is necessary; and (3) facilitates preparation of an Environmental Impact Statement when one is necessary. The EA process concludes with either a Finding of No Significant Impact (FONSI) or a determination to proceed to preparation of an EIS.
The Environmental Impact Statement (EIS) is the big, expensive, time-consuming process. A Federal agency must prepare an EIS if it is proposing a major Federal action significantly affecting the quality of the human environment. [In actual practice, a private company such as a mining company prepares a draft EIS and submits it to the Federal agency.] It begins with publication of a Notice of Intent (NOI), stating the agency’s intent to prepare an EIS for a particular proposal. The NOI is published in the Federal Register, and provides some basic information on the proposed action in preparation for the scoping process. The NOI provides a brief description of the proposed action and possible alternatives. It also describes the agency’s proposed scoping process, including any meetings and how the public can get involved.
The next major step in the EIS process is when the agencies submit a draft EIS for public comment. The agency must analyze the full range of direct, indirect, and cumulative effects of the preferred alternative, if any, and of the reasonable alternatives identified in the draft EIS.
When the public comment period is finished, the agency analyzes comments, conducts further analysis as necessary, and prepares the final EIS. In the final EIS, the agency must respond to the substantive comments received from other government agencies and from the public.
When it is ready, the agency will publish the final EIS and EPA will publish a Notice of Availability in the Federal Register. There is an additional (but rarely used) procedure worth noting: pre-decision referrals to CEQ. This referral process takes place when EPA or another Federal agency determines that proceeding with the proposed action is environmentally unacceptable. If an agency reaches that conclusion, the agency can refer the issue to CEQ within 25 days after the Notice of Availability for the final EIS is issued. CEQ then works to resolve the issue with the agencies concerned. CEQ might also refer the agencies to the U.S. Institute for Environmental Conflict Resolution to try to address the matter before formal elevation.
The end of the process is the Record of Decision (ROD), a document that states what the decision is; identifies the alternatives considered, including the environmentally preferred alternative; and discusses mitigation plans, including any enforcement and monitoring commitments.
What I have described above is the streamlined NEPA process. But we are not done yet. Sometimes a Federal agency is obligated to prepare a supplement to an existing EIS if it makes substantial changes in the proposed action that are relevant to environmental concerns, or if there are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts. An agency may also prepare a supplemental EIS if it determines that doing so will further the purposes of NEPA. A supplemental EIS is prepared in the same way as a draft or final EIS, except that scoping is not required. If a supplement is prepared following a draft EIS, the final EIS will address both the draft EIS and supplemental EIS.
In actual practice, the NEPA process is complicated by lawsuits and sometimes by foot-dragging Federal agencies. There are no statutory time limits imposed upon Federal agencies to complete the NEPA process. The NEPA process is long and complicated, and environmental groups have used this to their advantage to cause delay after delay in the hope that the project would become too expensive to continue. From Enviro Defenders legal handbook: “Though a lawsuit by itself will seldom stop a project, it can serve as an important element of a larger campaign to do so.”
A 2007 Congressional Research Service report notes: “As a procedural statute, the courts have ruled that NEPA does not require agencies to elevate environmental concerns above others. Instead, NEPA requires only that the agency assess the environmental consequences of an action and its alternatives before proceeding. If the adverse environmental effects of the proposed action are adequately identified and evaluated, the agency is not constrained by NEPA from deciding that other benefits outweigh the environmental costs and moving forward with the action.”
It seems that Australia and Canada have found a more efficient way to move forward while addressing environmental issues. The U.S. economy would benefit by taking note of their methods.
If you found it exhausting just reading about NEPA, imaging how it is trying to comply with it.
Future of Rosemont Mine very certain
In a recent press release by Save the Scenic Santa Ritas (“Augusta Resource Shareholders Meet, Future of Rosemont Mine Uncertain”) stating the future of Rosemont uncertain, it is apparent this audience doesn’t understand the business of financing for major development projects or the mining industry’s history of financing. They don’t grasp or refuse to acknowledge standard financing practices of a development of this magnitude. Investors have different objectives and some are willing to take higher risks at the beginning of a project for a higher rate of return, where others may wait until certain bench marks and goals have been reached. This isn’t the first project for this type of investment and won’t be the last.
This group’s endless attacks have proven to be filled with innuendo, misstatements and in some cases, what I perceive as intentions to slander the integrity of the project and the management team. This team has over 550 years of mining experience and are some of the best in this industry. On a personal note, we here in Southern Arizona are fortunate to have this industry and the quality of personnel as neighbors and citizens. This company will be a genuine partner for many years. The good people of Rosemont Copper are personally invested, serving on various charity boards and organizations.
The opponents of Rosemont have lost every appeal. The facts cannot be discounted by emotional rhetoric and the dissemination of blatant misrepresentations of this mining project. The initial objections have been answered through an educational process about the Rosemont project. I can confidently state the greater majority of citizens of Southern Arizona are satisfied that Rosemont Copper will bring a desperately needed economic boost to our area and will do so in the most responsible and respectful way possible. This is the next generation of mining.
Finally, I take issue with Mr. Ray Carroll’s (Pima County Supervisor, District 4) assertions that the investors are being misled and, in other public forums, that this project will devastate Southern Arizona. He continues to attack Rosemont’s integrity without factual substance or merit. His continued sarcastic, arrogant and disrespectful comments are not that of a Statesman, but rather a bully on the prowl to gain personal or political leverage in his quest to find significance in his position.
Despite the continued efforts of the opposition to malign this project, the law, the facts and the integrity of the process will prevail.
Rick Grinnell Southern Arizona Business Coalition firstname.lastname@example.org www.soazbc.com