CHAPTER 2 THE APPLICATION OF NEPA TO THE PUBLIC LAND MANAGEMENT AGENCIES: LEGAL & PRACTICAL CONSIDERATIONS1
| Jurisdiction | United States |
(Nov 1997)
THE APPLICATION OF NEPA TO THE PUBLIC LAND MANAGEMENT AGENCIES: LEGAL & PRACTICAL CONSIDERATIONS1
Crowell & Moring LLP
Washington, D.C.
I. OVERVIEW.
Hardrock mining has always been a risky business. Traditionally, the chief element of risk was involved with the exploration for, and discovery of, an economic mineral resource. That element of risk, of course, remains today, but it is equaled and perhaps overshadowed by the significant environmental regulatory and permitting impediments which now affect mineral development.
The recent report by the Evans Group, which was commissioned by the Gold Institute,2 found that the permitting process time for new gold mines in the U.S. has been averaging in the range of 4 to 5 years. Sometimes the time-frame is less, but it can be more. The Evans Group projected that the U.S. gold industry could face a significant decline in annual investments in the next decade unless regulatory impediments to opening new mines are lessened.
The requirement of Section 102(2)(C) of the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4332(2)(C), for federal agencies to prepare an Environmental Impact Statement ("EIS") for all "major Federal actions significantly affecting the quality of the environment" remains a dominant concern in mine permitting projects today, especially where federal public lands are involved. There are at least three reasons why NEPA's procedural requirements continue to be important.
First, the EIS process can be very time consuming, taking from two to four years, or more if the process is not well managed. Second, federal land permitting agencies use the NEPA process to develop mitigation requirements which normally become conditions in operating plans, although NEPA does not require
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this result.3 NEPA does not require that federal agencies avoid adverse environmental impacts or that unavoidable impacts be mitigated. Robertson v. Methow Valley Citizen Council, 490 U.S. 332 (1989). See also Strycker's Bay Neighborhood Council v. Karlen, 442 U.S. 223, 228 (1980) ("once an agency has made a decision subject to NEPA's procedural requirements, the only role for a court is to ensure that the agency has considered the environmental consequences..." of its proposal).
Third, NEPA remains one of the most favored causes of action for environmental interests to attempt to enjoin projects. In short, although case law makes it clear that NEPA imposes mere procedural requirements designed to simply ensure full disclosure of environmental impacts, NEPA requirements should not be viewed lightly by mine managers and their legal counsel.
Substantial permitting delays or onerous permit conditions resulting from the NEPA process can in many cases be fatal to project development. Obviously, court injunctions based upon NEPA violations or other permitting defects can be disastrous. See Sierra Club v. Penfold, 857 F.2d 1307 (9th Cir. 1988) (upholding injunctions over Alaska placer mining regions based upon the Interior Department's failure to prepare EISs assessing cumulative impacts of individual operating plans). Accord Northern Alaska Environmental Center v. Hodel, 803 F.2d 466 (9th Cir. 1986).
It is essential for company management to ensure that environmental permitting issues are integrated fully into the mine planning process. More specifically, the use of in-house company expertise and consultants in the fields of mining engineering, geology, environmental sciences, reclamation, government affairs, public relations, as well as law, must be coordinated to the maximum extent possible to ensure successful mine development in a timely manner.
To provide some factual context for this discussion, several recent mine permitting projects that I have been involved with are reviewed below. Then, some common strategies and principles which have been developed to steer successfully mine projects through the NEPA process are explored.
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II. RECENT MINE PERMITTING PROJECTS.
A. Jerritt Canyon Mine Expansion Project.
The Jerritt Canyon Mine is located in Elko County, Nevada, and has been producing gold since 1980, with annual production averaging about 350,000 ounces. The mine itself is located predominantly on federal lands in the Humboldt-Toiyabe National Forests in the Independence Mountains. The mine offices, mill and tailings impoundment are located at the foot of the mountains on private land (formerly Bureau of Land Management ("BLM") lands which very recently were privatized through a land exchange which is discussed below). Open pit mining operations and construction of support facilities initially were authorized in 1980, following a joint Forest Service-BLM EIS, and pursuant to Forest Service and BLM plans of operations under 36 C.F.R. § 228 and 43 C.F.R. § 3809.
During the first decade of operations, over one dozen environmental assessments ("EAs") had been prepared by the Forest Service and BLM to address various plan of operations amendments covering new pit expansions, project modifications, ancillary facilities, and new mineral exploration activities. Independence's ability to proceed with many operation expansions and modifications during the first decade of operation was greatly enhanced by the existence of the 1980 EIS, which provided a basis to "tier" subsequent EAs to the original EIS. See 40 C.F.R. § 1508.28. By 1992, Independence's mineral exploration activities had confirmed three new substantial ore deposits outside the area of current mining activities, and the decision was made jointly with the Forest Service and BLM to produce a new EIS covering the proposed mine expansion areas, i.e., the Jerritt Canyon Mine Expansion Project. In order to keep the EIS project on schedule, Independence entered into a non-binding, but written, agreement with the Forest Service (the lead agency), which contained a detailed set of milestones, and Independence agreed to fund a third-party contractor to prepare the EIS.
The proposed action was anticipated to disturb a potential of up to 3,000 acres, with pit development itself affecting as much as 1,300 acres. However, one of the ore bodies, known as the "New Deep" deposit, was being evaluated for potential development as an underground mine which would result in substantially less total surface disturbance — approximately 2,000 acres. At the time the EIS process was commenced in January 1993, and continuing through the issuance of the draft EIS in December of 1993, it remained an uncertainty whether the New Deep deposit would be developed by open pit or underground mining. It was necessary for the ongoing EIS process to accommodate this uncertainty in order to preserve flexibility for Independence's operations. This
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was accomplished by setting forth the underground and surface mining options as separate alternatives in the EIS analysis.
As with any EIS under NEPA, the Jerritt Canyon Mine Expansion Project EIS needed to assess the "no action" alternative, which would reflect the environmental impacts of no further mining occurring. See 40 C.F.R. § 1502.14(d). Independence welcomed the Forest Service's assessment of the no action alternative, because it provided the basis for the Forest Service to include a detailed assessment of the adverse "socioeconomic" impacts which premature closing of the Jerritt Canyon Mine operations would entail. See 40 C.F.R. § 1508.14 ("when an...[EIS] is prepared and economic or social and natural or physical environmental effects are interrelated, then the...[EIS] will discuss all of these effects on the human environment"). Accordingly, the EIS prepared by the Forest Service and its third-party consultants, reflected a detailed assessment of: (1) the high levels of direct employment associated with the mine (over 600 employees and contractors); (2) the high wage and benefits packages which the mine employees enjoyed (about $50,000 a year and up); (3) the substantial Nevada severance tax payments which the mine had made over the years; and (4) the fact that Independence was the largest property tax payer in Elko County.
In coordination with the U.S. Fish & Wildlife Service, the Forest Service prepared a biological assessment which concluded that the project was not likely to adversely affect any nearby threatened or endangered species, such as the Lahontan Cutthroat Trout. However, the project was expected to have an adverse impact on mule deer wintering habitat, which was of concern to the Nevada Department of Wildlife ("NDOW") and the Forest Service. Accordingly, early in the project, Independence agreed to contribute a total of $500,000 for a mule deer habitat improvement fund to be administered by NDOW. The Forest Service and NDOW entered into a memorandum of understanding regarding the mule deer habitat improvement plan which was included in the final EIS.
The potential for acid rock drainage ("ARD") was assessed rigorously through the EIS process. Although the potential for ARD was identified through ARD predictive testing to be low, a detailed Waste Rock Handling Plan was developed to further minimize this risk, and included in the final EIS.
Because the substantial waste rock piles created from the mine expansion project would be disposed of in upland drainages, it was necessary for Independence to obtain authorization from the U.S. Army Corps of Engineers ("COE") under section 404 of the Clean Water Act, 33 U.S.C. § 1344, in coordination with the issuance of the EIS. Accordingly, the COE was a cooperating agency on the EIS. Other cooperating agencies included BLM, NDOW, the Nevada Department of Minerals, and the Elko County Commission. Public meetings were held in Elko, Reno, Tuscarora and Mountain City, Nevada,
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and public support for the mine was overwhelmingly favorable.
The Record of Decision ("ROD") on the project was issued in April of 1994...
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