Mining Needs Permitting Reform Too

How stalled progress by Congress will push the mining sector abroad

A Canadian rare earth mine

On March 5th, after months of deadlock, Senate Democrats committed to re-opening permitting reform talks. Bipartisan support for reforming sclerotic federal permitting processes and the National Environmental Policy Act (NEPA) has recently grown as Democrats realize how onerous environmental reviews can impede their goals of deploying clean energy. Yet, the second Trump administration’s cancellation of wind and solar projects previously caused Democrats to pull back from permitting negotiations, demanding protections from arbitrary attacks by the executive branch.

The willingness from Democratic senators to restart permitting negotiations is welcome, but a grand reform deal remains elusive.

While permitting reform discussions mostly focus on energy projects such as transmission lines or renewables, and public attention remains firmly planted on energy prices, the mining sector also stands in need of the reforms debated by Congress. As debates drag on, permitting bottlenecks threaten to push mining investment abroad. Unlike energy producers, which uniquely serve U.S. markets, miners will pursue mineral deposits in other countries if they can develop them more quickly and reliably elsewhere.

Pressure from the increasingly globalized mining industry has already taken a toll on the U.S. business case, placing a premium on reforming U.S. permitting bottlenecks to regain competitiveness. The U.S. has ceded industry spending on mineral exploration as new markets emerge, falling from 20% of global investment in 1993 to only 11% in 2020. Meanwhile, the number of metal mines in the U.S. has decreased by over 70% since 1983.

The growing emphasis by governments across the world on securing critical mineral supply chains amplifies the competition. Major producers like Canada and Australia have outpaced the U.S. in speeding regulatory processes. Meanwhile, countries with immense critical mineral potential like Brazil have courted trade agreements abroad that threaten to further siphon industry interest from the U.S.

Mining is a hard enough business. Before developers even apply for permits, they must risk millions of dollars and years of effort to just find a viable mineral deposit. Miners have little reason to tolerate a broken permitting system that other countries have managed to fix.

What from the National Permitting Reform Debates Is Valuable for the Mining Sector?

NEPA, among all permitting laws, remains the central shibboleth of American proceduralism and creates two particular sore spots for the U.S. mining sector that statutory reforms can alleviate: lengthy environmental reviews and frivolous lawsuits from environmental advocacy groups.

Mines must undergo extensive scrutiny during environmental reviews that take, on average, about four years. Developers must collect vast amounts of environmental data, like water quality, to establish baselines from which agencies can assess potential impacts. Meanwhile, agencies conduct their own assessments of endangered species, archaeological sites, and public resources. Throughout the entire process, developers iteratively revise their mine plans to minimize impact to the environment and ensure that reclamation restores public lands to a productive state.

Only with permits in hand can developers actually start constructing the mine itself, which alone can easily take over two years. Yet, when a third party sues a mine project, the lawsuit can delay construction and bloat project costs even if courts eventually dismiss the suit. On average, mining lawsuits take nearly three years to resolve, exceeding times experienced by the energy and infrastructure sectors. All the while, developers must bear the uncertainty that may disrupt their ability to continue to secure financing and purchase agreements.

Slow NEPA Reviews

When it comes to NEPA reviews, the mining sector is especially impacted. Mining projects are complex and require input from multiple agencies. If not well-coordinated, the intersection of water quality, air quality, ecological impacts, and archaeological resource considerations contributes to lengthy NEPA reviews that unnecessarily delay projects. Agency surveys have indicated that this can add months to years to review timelines.

This is often simply a data problem. When developers apply for mining permits, federal agencies like the Bureau of Land Management, U.S. Forest Service, and U.S. Fish and Wildlife Service, must collect all the necessary data to assess the relevant environmental impacts of the proposed project. Giving agencies modern digital tools to share relevant data, access data earlier in the process, and coordinate amongst themselves could meaningfully speed review times.

Canada has taken an early lead in addressing the multi-jurisdictional challenges of permitting mines by launching the One Project, One Process Framework in October of 2025. This program aims to cut project lead times by consolidating engagement with developers and Indigenous communities based on all the permits needed for an entire project, rather than iteratively for each individual permit that mines must obtain. The accompanying Mine Permit Navigator will create further efficiencies by clarifying for developers which jurisdictions apply and preparing them for the associated regulatory requirements.

In the U.S., the best congressional prospects for improving basic efficiency stand with the ePermit Act, originally proposed by Rep. Johnson and Sen. Curtis. The ePermit Act promotes efficiencies with standard data formatting; digital tools to assist regulators with reviews, like automating the compilation of public comments; and modernized digital platforms where developers can submit and track documents. All of these would greatly help mine reviews, which must collect immense amounts of data (often over multiple years to determine relevant environmental baselines) and which often receive tens of thousands of public comments. Fortunately, the ePermit Act faces little opposition and is perhaps the most likely piece of permitting reform legislation to pass in Congress.

Frivolous Litigation

While improved data processes can speed up environmental reviews, it cannot protect projects from the delays and uncertainty that lawsuits create. Here, NEPA places the U.S. at a disadvantage compared to competing countries because of the opportunities it creates for frivolous litigation from aggressive environmental NGOs. Compared to the procedural focus of NEPA, Australia’s environmental laws limit litigation by focusing on issues of national environmental significance.

In the U.S., mines must obtain a number of permits to ensure that operations will meet substantive standards, like water quality limits for any effluent discharge. If mine designs cannot meet standards, agencies withhold permits until developers sufficiently revise their design. Nevertheless, trigger-happy environmental organizations will sue projects based on purely procedural aspects of NEPA, such as failing to consider points of public input. In fact, 74% of court opinions regarding NEPA reviews affirm agency decisions, leaving lawsuits most often achieving nothing but delay and disruption to the project.

For smaller developers especially, the mere risk of litigation can disproportionately discourage the entrance to U.S. markets, as they cannot bear surprise costs as well as larger firms. These small upstarts may prove vital for tapping into more niche critical minerals like rare earth elements or graphite, compared to global majors which focus on staple commodities like copper or even non-issues like gold and coal.

The proposed SPEED Act attempts to discourage frivolous lawsuits by shortening the window in which plaintiffs can bring lawsuits from its current six-year limit to 150 days. The bill would also promote faster resolutions by mandating timelines for courts to issue judgements.

While these provisions remain valuable, the SPEED Act includes a number of other provisions that would collectively make NEPA unenforceable in court, such as raising the standard under which third parties can sue projects. This sweeping, heavy-handed approach makes the SPEED Act unlikely to move forward in Congress, placing a premium on retaining the valuable aspects in future proposals.

The Fix Our Forests Act proposes another solution: limiting the ability of courts to vacate permitting decisions to cases involving substantive and direct harms to the plaintiff from a failure to disclose adverse environmental effects, rather than cases involving purely procedural issues. The bill would only apply this provision to forest management activities, but its passage could set a promising baseline for future debates to expand the idea to all sectors.

Permit Certainty

Calls for protecting permits against arbitrary cancellation have grown in Congressional debates in response to Trump administration interference with renewables projects. In fact, provisions that provide permit certainty may prove a necessary provision for enough Democrats in Congress to move forward with proposals.

While permit certainty may seem tailored for the wind and solar sectors, the mining sector would also benefit, as the threat of arbitrary permit cancellation consistently lingers over mining projects. Arbitrary cancellations have already burned the proposed Twin Metals Minnesota copper mine twice, first under the Obama administration, which refused to renew the project’s leases, and then again when the Biden administration revoked the leases while they were still active.

The SPEED Act attempts to deliver certainty by restricting agencies from revoking completed environmental review documents or relevant authorizations like leases or right-of-ways. The introduction of other certainty-minded proposals like the FREEDOM Act, which would provide covered energy projects (including most mining activities) with court-administered compensation, bodes well for future discussions, should the SPEED Act stall in Congress.

Mining Needs Permitting Reform in Statute, Not Executive Action

The lack of legislative progress to date has encouraged the Trump administration to attempt to unilaterally speed up permitting using regulatory change and executive action, such as calling for 28-day reviews for a range of energy sources and critical minerals. But, these methods alone cannot tackle core permitting challenges, such as protections against litigation, which must come from Congress.

Aggressive regulatory overhauls also risk decreasing investor confidence by introducing the possibility of policies that ping-pong unpredictably back-and-forth as administrations change, and by courting lawsuits that actually add time and uncertainty to NEPA reviews.

Environmental organizations recently sued the Bull Mountains coal mine and the Lisbon Valley copper mine, citing a lack of opportunity for public comment because the agencies did not complete a draft environmental impact statement before issuing its record of decision. Court proceedings will determine if the quicker review ultimately benefits the developers. Future projects may face greater potential setbacks if courts cite more than procedural concerns, such as failure to consider alternative designs with less environmental impact. Such cases may require significant mine design revisions not taken into account in developer budgets or construction planning.

Permitting agencies do need to shift culturally from applying excessive scrutiny during environmental reviews as a hedge against lawsuits, toward a more balanced, efficiency-minded approach. However, statutory proposals like the ePermit Act offer a more durable solution than ceremonial deadlines that agencies can’t realistically achieve.

America Needs Mining, Mining Needs Permitting Reform

Despite the dearth of mining examples in the national permitting reform debate, the future of the U.S. mining sector depends on what Congress can agree on when it comes to NEPA reform, permitting certainty, and much more. NEPA stands as only one barrier to a more competitive mining industry alongside the sector-specific reforms that Congress must also pursue. Lawmakers may have little political bandwidth to address these issues until they reach a consensus on the broader permitting issues that touch all industries.

The proposed Mining Regulatory Clarity Act, for example, would revise an outdated provision of the General Mining Law originally aimed at preventing small-scale miners from dumping waste on each others’ claims. In 2019, courts halted the Rosemont copper project outside of Tucson, Arizona, over a technicality citing that provision. Meanwhile, the proposal has stalled in Congress since its introduction in 2023.

While permitting talks inch forward, the United States faces persistent supply shortages of key minerals. At the same time, countries abroad continue to refine their government oversight and discover new deposits ready for developers to take advantage of. Insufficient domestic supplies of commodities like iron can slow economic growth by raising the prices of commonly used building materials. Slow and unreliable development of new copper and nickel mines will compound challenges facing energy infrastructure deployment. Meanwhile, failure to attract industry interest in new projects can perpetuate dangerous import reliances for materials like antimony, which is used in munitions that are essential for national defense.

Failure to deliver meaningful permitting reform for the mining sector will cede the future of mining to the country with the most attractive combination of regulatory ease and mineral deposits, increasing the cost of American energy and putting the brakes on economic growth.