Open-pit Metallic Mining in California: Still Stuck Between a Rock and a Hard Place (to Mine)

• Jurisdiction: California,United States
• Author: by Martin P. Stratte
• Publication year: 2019
• Citation: Vol. 28 No. 2

Open-Pit Metallic Mining in California: Still Stuck Between a Rock and a Hard Place (To Mine)

by Martin P. Stratte^*

Martin P. Stratte

I. INTRODUCTION

Senate Bill 100 ("SB 100"), enacted in September 2018, has California on a path towards 100% carbon-free energy by 2045. SB 100 also sets interim targets of acquiring 50 percent of power from renewable energy sources by 2026 and 60 percent by 2030.

To accomplish these goals, the state will need to rely more heavily on grids that generate, transmit, and store energy from infrastructure that requires significant amounts of non-renewable metals. For example, metals such as copper, nickel, iron, and silver are necessary to manufacture the (i) solar arrays and wind turbines used to generate energy, (ii) wiring to transmit energy, and (iii) batteries to store energy.

Other states have set similar paths towards 100% carbon-free energy, including Hawaii, New York, and Washington.¹ Various countries around the world are doing the same.² Accordingly, there is a growing need to locate and develop new sources of the critical metals that will play a central role in the ongoing global shift towards clean energy.

But before being incorporated into a wind turbine or battery, these metals must first be located, unearthed, and transformed from a raw natural resource into a specialized component part. And while many of the metals necessary for the development of renewable energy infrastructure are located in California, you're unlikely to receive energy from infrastructure that includes any of those metals anytime soon.

Why? Ask anyone familiar with the surface mining industry and they'll tell you the reason: the California metallic mining backfill regulations ("Backfill Regulations" or "Regulations," Cal. Code Regs. tit. 14 §§ 3704.1 et seq.), which require open-pit metallic mines to be filled during reclamation, notwithstanding the cost or the unique characteristics of a specific project, such as size, location, and topography. This "one size fits all" approach to reclamation is one of only a few examples where a lead agency acting pursuant to the California Environmental Quality Act ("CEQA") is precluded from considering a full range of project alternatives (such as alternatives that do not require any backfilling, or require only partial backfilling).

Since promulgation in 2002, the Regulations have done more than merely regulate metallic open-pit mining. Instead, the Regulations have halted the development of new metallic mines throughout the state (although some mines that predate the Regulations continue to operate). As a result, there has been just one new metallic mine approved for operation since 2002. Consequently, the Regulations may limit California's participation in the global effort to develop the metals necessary for the transition to clean energy, despite having rich deposits of these minerals in its own backyard.

So, do the Regulations go too far? Should the discretion of a CEQA lead agency be supplanted with a regulation that requires the backfilling of every open-pit metallic mine, in every instance? Or should lead agencies be allowed to evaluate the potential impacts associated with a full range of project alternatives?

Moreover, should being a global leader in the transition towards 100% carbon-free energy include a commitment to help develop and extract the raw materials necessary to manufacture and deploy the infrastructure to generate, transmit, and store renewable energy? And does the state's plan to rely more heavily on renewable energy infrastructure that will require component parts manufactured from metallic minerals constitute good cause to at least take a fresh look at the Regulations?

In 2018, the State Mining and Geology Board ("SMGB") began a public process to explore the answers to some of these important questions and consider whether potential updates and amendments to the Regulations were warranted. Since then, however, there has not been any further action. Good cause exists for SMGB to resume its evaluation of the Regulations.

This article will examine: (1) the nature and scope of the Regulations; (2) why the Regulations have curtailed the development of new metallic mines in California; and (3) why reconsideration of the Regulations is warranted.

II. METALLIC MINERALS IN THE NEWS

As countries around the world pursue carbon-free grids, media attention has increased on issues related to the supply of raw materials necessary to manufacture renewable energy infrastructure, such as solar arrays, wind turbines, wiring, and batteries. Media focus on these issues has intensified as a result of the U.S.-China trade war, an aspect of which relates to China's stronghold over the extraction and processing of many of the critical raw materials necessary for the global push for cleaner energy.³

[Page 26]

This increased attention has also spurred great national and international debate about whether there is an existing or looming shortage of these critical raw materials.⁴ Tesla reportedly believes the shortage is real and is apparently exploring the possibility of starting its own mining ventures to establish better sources of the metals necessary to manufacture electric vehicles and the batteries that allow users to drive long distances without a charge.⁵

These events are set against the backdrop of efforts by various Democratic lawmakers to overhaul the laws that govern mining on federal public lands,⁶ while the Trump administration seeks to expedite the permitting and approval of projects that will develop these raw materials.⁷

So, why are metallic minerals getting so much attention? Because natural resources such as copper, iron, silver, gold, and aluminum, along with a class of elements generally referred to as "rare earth metals," are essential for the global development, manufacture, and transmission of renewable energy.⁸ Without these metals, the expansion of renewable energy infrastructure and transition to cleaner energy will not be possible.

III. METALLIC MINING IN THE GOLDEN STATE

There are many different minerals and non-mineral resources mined around the world, and many different mining methods depending on the location, geology, and topography of the specific deposit being targeted. The regulation of these activities varies significantly depending on the state (or country) in which the mining occurs, and whether the mining occurs on federal public lands.

This article focuses on the hardrock mining of metallic minerals in California, via the open-pit method of surface mining—i.e., the mining method primarily used to extract metals necessary to develop renewable energy infrastructure—which is subject to the Backfill Regulations.

An overview of the open-pit mining process, including its history and regulation in California, will provide context for assessing the Regulations.

A. Key Mining Terms and Processes

In California, "surface mining operations" means all, or any part of, "the process involved in the mining of minerals . . . by [1] removing overburden and mining directly from the mineral deposits, [2] open-pit mining of minerals naturally exposed, [3] mining by the auger method, [4] dredging and quarrying, or [5] surface work incident to an underground mine."⁹ Surface mining operations also include leaching activities and the production and disposal of mining waste.¹⁰

"Overburden" refers to the "soil, rock, or other materials that lie above a natural mineral deposit or in between mineral deposits, before or after their removal by surface mining operations."¹¹ The overburden must be removed to facilitate access to a mineral deposit. Once removed, the overburden is stored in piles at a mine site.

With the overburden removed, ore can be accessed and extracted; ore is a natural aggregation of a mineral or minerals. Because the minerals are often in the form of small, disseminated particles not visible to the naked eye and spread throughout large amounts of rock, further processing is necessary to separate the minerals from the rock. "Leaching" is the separation of the minerals from the rock through reactions caused by the application of chemicals, and is regularly used to separate metallic minerals. To prevent release of the chemicals, leaching occurs within pads engineered to collect all residual rock and liquids—i.e., "mining waste."¹²

Once mining has concluded, the site will be "reclaimed," a process that varies greatly depending on the state in which the mining occurred, or whether the mining occurred on federal public lands.

In California, "reclamation" means "the combined process of land treatment that minimizes water degradation, air pollution, damage to aquatic or wildlife habitat, flooding, erosion, and other adverse effects from surface mining operations, including adverse surface effects incidental to...