The 119th Congress so far has not been particularly good for U.S. critical mineral security. The One Big Beautiful Bill Act introduced an earlier phaseout of production tax credits for critical minerals while extending them to metallurgical coal (which the U.S. exports heavily to China). Meanwhile, lawmakers have thus far failed to renew the U.S. Geological Survey’s Earth Mapping Resource Initiative after the program’s expiration at the end of September, leaving the U.S. further behind its competitors in collecting basic geoscience data.
The long-awaited permitting package, the Bipartisan American Affordability and Jobs Act (BAAJA), released on September 20, might just turn the record around for this Congress.
BAAJA is good for U.S. critical mineral security and Congress should pass it. The bill does not solve all the problems that mineral supply chains face. But BAAJA fixes a broken permitting system that needlessly raises the cost, risk, and time it takes to develop mines and build processing plants.
BAAJA does this by providing developers with project certainty, building social license with local community members disaffected by historically unregulated mining, and confirming longstanding waste disposal practices left in question by recent court rulings and rulemakings.
Ultimately, these provisions would leave critical mineral projects with a permitting system that actually assesses true environmental impacts and a public more willing to hear projects on their merits. This provides the routine functionality the U.S. needs to restore its reputation as a reliable place to produce minerals and regain basic competitiveness. From there, Congress will have a strong foundation to pursue the many sector-specific initiatives needed to fully secure U.S. critical mineral supply chains.
The help could not come soon enough. As other countries have built attractive mining jurisdictions, the U.S. has fallen from a 20% share of global investment in 1993 to just 11% in 2020 while experiencing a 70% decrease in the number of metal mines since 1983. As lawsuits and arbitrary permit revocations continue to raise the cost, risk, and time to develop projects, mineral supply chains will continue to hollow out in the U.S. in favor of more reliable countries.
Legacy mine site cleanup
Mining has not always operated under strict environmental regulations, as it does today. Before the 1976 passage of the Federal Land Policy and Management Act, which requires companies to remediate mines after closure, mining operations left their sites in disrepair. These sites total in the thousands and have sat for decades in need of proper remediation. Even though projects today do not leave the same damage, the historic sites create understandable distrust among community members who may remain hesitant to support new projects.
BAAJA would help heal this distrust by providing funding to clean up and restore the landscape at historic non-coal mine sites (coal mine cleanup has its own funding source). Specifically, the bill would charge active non-coal mining operations $400 annual fees per parcel of federal land they occupy. Proceeds would go to a dedicated fund the federal government will use to pay for remediating inactive non-coal mine sites on federal land still in need of proper closure.
As new non-coal mines come online on federal land, mining companies will pump more fees into the cleanup fund. $400 per parcel each year may not seem like much. But mining operations can occupy hundreds of parcels, which, in total, should generate at least $125 million in dedicated cleanup funding over the next decade.
Project certainty
BAAJA creates a more reliable permitting system for project developers by alleviating key pain points that plague the industry.
First, the bill reduces the statute of limitations for bringing NEPA cases under the Administrative Procedure Act from 6 years to 150 days, and limits legal standing for lawsuits to parties that raised substantive issues showing direct harm during review comment periods. This will cut down on baseless lawsuits—three quarters of court opinions end up affirming agency decisions—which add a risk premium to project costs. Meanwhile, courts would have less ability to pause projects while lawsuits resolve, which takes an average of about 3 years for mines.
BAAJA would also limit the ability for the very agencies conducting environmental reviews to tank projects for political reasons. The mining industry has been burned by this recently.
For instance, the NorthMet mine proposed in Minnesota received its Clean Water Act 404 permit from the Army Corps of Engineers in 2019. The Biden-era EPA recommended its revocation in 2022. To address this, BAAJA would limit the EPA’s timing for vetoing 404 permits to the period before they are issued to developers, preventing revocations after developers already proceeded with the project. The bill would also deter revocation of other permits by granting damages to developers based on the cost incurred by the disruption.
Both the Obama and Biden administrations canceled mining leases for the Twin Metals Minnesota project out of largely political motives. The Biden administration even canceled the project’s in-progress environmental review, disregarding the regulatory process and showing no interest in scientifically assessing the project’s environmental impact. This interference epitomizes how administrations can hijack the permitting process to make sentimental public land use decisions that policymakers ought to pursue through more appropriate channels. When it comes to mining, the only mission of NEPA review is to disclose mine project impacts. Interfering with a NEPA review should not be acceptable as a way to stop projects administratively that are otherwise allowed under law. BAAJA would promote this by providing developers with recourse, letting companies sue agencies if an administration has categorically disfavored a type of project.
Mine waste disposal practices
BAAJA would also provide greater predictability for the mine site planning process by clarifying longstanding mine waste management rules.
Unavoidably, mines produce waste rock and mill tailings that developers must safely secure on site. In the United States, the General Mining Law allows developers to use federal land open to mining for both excavations and for disposal of mine waste. When first applying to use the land, developers must segment the footprint of their project into individual parcels and declare which activity–excavation or disposal–they intend to conduct on each segment.
Agency rulemakings since the Clinton administration have attempted to arbitrarily restrict the number of waste disposal parcels to match the number of excavation parcels. Such limits have little to no bearing on environmental factors, and the General Mining Law itself requires no such limitation. Courts in 2024 affirmed the interpretation that these rulemakings were unreasonable. BAAJA would codify this decision to prevent future abuses.
Famously, the Rosemont court case in 2022 upended the historic practice of storing waste on parcels declared for excavations, adhering strictly to each parcel’s declared activity.
The Rosemont decision now requires mining companies to have a precisely optimized mine plan from the outset–an unrealistic and impossible expectation–and commit to working within the original plan even if it proves inefficient. Alternatively, mine managers can restart the whole mining claim and permitting process from scratch.
BAAJA would solve this unworkable ruling by allowing developers to revise the declared activity. Contrary to activist claims, this does not allow projects to indiscriminately dump waste where law would not otherwise allow or cause any additional impact to federal lands. Developers could just as easily have declared the same parcel for waste disposal initially. BAAJA simply saves developers the tedious process of abandoning their site and reapplying for hundreds of individual parcels, or needlessly expanding their footprint into new parcels.
BAAJA is an opportunity that Congress should seize
Congress should pass BAAJA while it has the chance—for the benefit of critical minerals, for clean energy, and for a healthy, prosperous industrial sector in general. From a critical minerals perspective, no provisions require any major amendments in order to secure the proposal’s goals of making it easier to build things in the U.S.
Members of Congress hesitant to support mineral production must recognize that BAAJA is not a shortcut for the mining industry. The bill does not erode any of the strict environmental standards that projects must follow. Rather, BAAJA simply reestablishes a functional oversight apparatus that does not arbitrarily punish industry with unpredictable, unscientific disruptions.
After the Biden administration banned mining in Minnesota in the middle of the Twin Metals environmental review, industry made it clear, “We’re ready to do the work, meet the standards, and deliver responsibly mined minerals.” Furthermore, industry has supported contributing funds to clean up legacy sites that they did not themselves abandon, sending a meaningful signal of interest in a good-faith permitting system.
Now is the time for Congress to meet this good faith in kind and pass BAAJA. U.S. critical mineral security depends on it.
