Chapter 2 US AND CANADIAN CRITICAL METALS AND MINERALS POLICYMAKING: IMPLICATIONS FOR SUPPLY CHAIN STRENGTHENING THROUGH JOINT ACTION PLANS

• Jurisdiction: United States

Mining Law
Chapter 2

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US AND CANADIAN CRITICAL METALS AND MINERALS POLICYMAKING: IMPLICATIONS FOR SUPPLY CHAIN STRENGTHENING THROUGH JOINT ACTION PLANS
Simon M. Jowitt Department of Geoscience, University of Nevada Las Vegas Las Vegas, NV

SIMON JOWITT is an Assistant Professor at the University of Nevada, Las Vegas, in Las Vegas, Nevada. Simon is an expert in the use of geochemistry to unravel geological processes, igneous petrology, mineral exploration, and global tectonics. His research specialties include mining, mineral deposits, magma, and global metal resources. He also focuses on mineral economics and the "economic" side of economic geology. Jowitt has published more than 70 scientific papers to date, including in the publications Ore Geology Reviews, the Journal of Petrology, Lithos, and Economic Geology. He has also been called upon by media to discuss mining operations all over the world.

Brief biography

Simon Jowitt is an economic geologist who is currently an Assistant Professor at the University of Nevada Las Vegas. He obtained BSc, MSc, and PhD degrees in the UK and spent eight years at Monash University in Melbourne, Australia before moving to his current position. His research interests include ore deposit formation, igneous petrology and large igneous provinces, mineral economics and exploration, critical metal resources and security of supply issues, the geochemistry of mineralizing systems and the links between magmatism and metallogeny. Simon has published more than 85 papers since 2010 and was awarded the Society of Economic Geologists Waldemar Lindgren Award in 2014.

The views expressed in this paper are solely those of the author.

Introduction

This paper provides an overview of the development of U.S. and Canadian critical minerals policy and the mutual objective of strengthening supply chains though joint action plans between these countries and with other countries and organizations. However, before we get into critical metals and minerals and associated policy development it is important to understand a) a little about what we mean by criticality and b) variations in what metals and minerals different groups of governments, individual governments, industry and other organizations consider critical and why.

In general terms, the critical metals and minerals are a group of commodities that are vital to modern life and society and have key uses in sectors such as energy generation (especially renewable energy) and storage, transportation (especially electric and hybrid vehicles) and defense.¹ This has led to a significant increase in the demand for these metals and minerals over the past few decades.² However, these metals and minerals also have supply chains that are at significant risk of restriction, hence the focus of this paper on policies designed to increase the security of supply of these metals and minerals to the US manufacturing, energy and defense sectors, among others. It is also important to realize that there is no clear and uniform identification of critical and non-critical metals and minerals.³ This is a crucial fact that needs to be understood when considering policymaking and legislation relating to these minerals on both domestic (i.e., within the US) and global levels. This reflects the fact that criticality is a function of the viewpoint of the given organization considering what metals and minerals they consider critical, be that organization a

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government or group of governments, a governmental department, or an industrial organization, group, or company.⁴

All of this goes to indicate that there is no general consensus on the criticality of metals and minerals, meaning that policymaking focusing on a given metal or mineral X that is considered critical by (for example) the US government may contrast with policies developed by parts of the US government that do not consider this same metal critical. These policies may also contrast or conflict with policies developed by (for example) the Australian government, where metal or mineral X is in plentiful supply compared to the smaller industrial demand present within the Australian economy⁵ although the latter obviously creates opportunities for policy development encouraging the exportation of metal or mineral X from Australia to the US, creating friendly and secure supply chains of critical metals and minerals. This reflects some of the complexities involved in policymaking at any level regarding improving the supply of the critical metals and minerals. These complexities are also exemplified by the number of reports produced by various organizations that assess the criticality of individual metals and minerals from the viewpoint of the organization that produced the report, and which often contrast not only with reports produced by other organizations but also sometimes with previous reports produced by the same organization. This complexity is discussed in detail by McNulty & Jowitt (2021⁶ ), who outline the metals and minerals considered critical by a total of 25 reports produced by South Korea, the United Nations, Australia, the British Geological Survey, Japan, the EU, and the US, including the US National Academy of Science, the US Department of Defense (DOD), and the US Department of the Interior (DOI), in addition to three independent reports. The US Department of Energy (DOE) has also undertaken its own research into criticality as well as developing the Critical Materials Institute, an Energy Innovation Hub focused on metals and minerals that are crucial for the energy sector. Overall, the variations in what metals and minerals these different organizations consider critical and how these criticality assessments vary over short periods of time (compared to say the 10-20 year lead-in time for a typical mine) obviously have implications for the minerals industry and associated policymaking.

Critical Metals and Minerals Policy Development

USA

Early developments in US Critical Metals and Minerals policymaking include the Strategic and Critical Minerals Act of 1990,⁷ which outlined the potential development of a Strategic Resources Mineral Technology Center. Discussions over the criticality of metals and minerals really began in earnest with the release of the Minerals, Critical Minerals, and the US Economy publication by the US National Research Council in 2008.⁸ This initial step examined whether the security of supply of certain mineral and metal commodities could potentially have a negative impact on the US economy. This was followed by the criticality assessments outlined in the previous section, but significant steps in policymaking did not follow until comparatively recently. Initial attempts at legislation associated with critical metals and minerals included the Critical Minerals Policy Act of 2013,⁹ introduced into the US Senate in 2013, and the National Strategic and Critical Minerals Production Act of

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2013,¹⁰ also introduced into the US House of Representatives in 2013, but neither proposed act was passed by the other part of Congress. Similarly, the National Strategic and Critical Minerals Production Act of 2015¹¹ was passed by the US House of Representatives in 2015 but failed to be passed by the Senate. A revised version of this last bill was introduced into Congress in 2021¹² along with the American Critical Mineral Independence Act of 2021,¹³ but neither of these have been voted on to date.

One key piece of legislation relating to the critical metals and minerals is Title VII - Critical Minerals within the Energy Act of 2020, legislation that also covers other aspects with relevance to critical metals and minerals and forms part of the Consolidated Appropriations Act of 2021.¹⁴ This legislation has three main points focused on the critical metals and minerals that include the following main points:

• A requirement that the Secretary of Energy organizes research and development into advanced processing for the extraction and recovery of the rare earth elements and other critical metals and minerals from coal and coal byproducts, with developments in this area to be reported to Congress.
• The promotion of secure and robust critical metal and mineral supply chains for the USA by requiring the executive branch to designate a list of critical minerals that is updated every three years.
• The US Geological Survey is required to undertake domestic resource assessments of the critical metals and minerals outlined by the executive branch, with this information to be made public.
• The DOI and the Department of Agriculture (USDA) are to publish these critical metal and mineral related Federal Register notices within 45 days of being finalized.
• The Secretary of Energy is to develop a research and development program focused on alternatives to, recycling of, and the efficient production and use of critical metals and minerals, which may be undertaken by the DOE's existing Critical Materials Energy Innovation Hub).
• The Secretary of Energy and the Director of the Energy Information Administration are to develop analytical and forecasting tools to evaluate critical minerals markets.
• The Secretary of Labor and the Director of the National Science Foundation are to develop curriculae and programs for institutions of higher education to build a strong critical minerals workforce.
• The National Geological and Geophysical Data Preservation Program was also reauthorized through to fiscal year 2029.

The Act also requires the Director of National Intelligence to study and report on investments in minerals by the People's Republic of China as part of the ongoing Chinese Belt and Road Initiative. The Director of National Intelligence is also to make recommendations to the Secretary of the Interior during the outlining and designation of minerals as per this Act.

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The House and Senate also passed the bipartisan Infrastructure Investment and Jobs Act in...