Mining law reofrm would establish a fund to pay for cleanup at abandonded mines, such as the Leviathan Mine, above. Photo courtesy U.S. Environmental Protection Agency
The 1872 Mining law has survived for more than a century with relatively few changes. Now, even congressional leaders and the mining industry are talking about reform for mining on public lands.
A sweet plum for industry, the law enables companies or individuals to mine for hardrock minerals, including gold, copper and uranium, without paying any royalties to the government. The law also allows mining corporations to pull up stakes without cleaning up the mess they leave behind. For more than a century the law allowed anyone—individual or corporation—to buy, or patent, public lands for mining for as little as $2.50 per acre. Congress approved a moratorium on new patents in 1994 and has reapproved it every year since, but existing claims can still be mined.
Provisions for site reclamation have evolved slightly over the decades, but the absence of strict remediation requirements on public lands has left thousands of abandoned mines oozing toxic metals into adjacent landscapes and streams. Taxpayers ultimately foot the bill for these cleanups, and the total tab to remediate all abandoned hardrock mines on public lands is at least $50 billion, according to Earthworks, a mining-reform advocacy group.
“Nobody can say with a straight face that this law from 1872 shouldn’t be changed,” says Velma Smith of the Pew Campaign for Responsible Mining.
Luke Popovich, spokesman for the National Mining Association, agrees. “The law needs to be updated,” he says.
The change in attitude from the industry is encouraging, as it has long claimed the law’s provisions are necessary to support the domestic minerals market. But Popovich’s ideas of mining reform differ significantly from those put forth by congressional leaders and supported by environmentalists.
Two bills to overhaul the 1872 law are making their way through Congress; both have powerful sponsors in either the House of Representatives or the Senate. Representative Nick Rahall, a West Virginia Democrat and chair of the House Committee on Natural Resources, introduced reform legislation in January that would create a production royalty (8 percent for new mines and 4 percent for existing ones), end the patented mining sales of public lands, establish a cleanup fund for abandoned mines and make U.S. Forest Service roadless areas and other sensitive sites as off-limits to mining. The House approved a similar measure in 2007.
In April, Senator Jeff Bingaman, a New Mexico Democrat and chairman of the Senate Committee on Energy and Natural Resources, introduced a similar bill that would enact lower royalties than Rahall’s but would also cease patent sales, set aside cleanup dollars and study areas where mining should be prohibited.
Smith says each bill has its strengths, and environmental groups generally support their intent and mechanisms for environmental protection and land restoration. Congressional subcommittees have held hearings on both bills and supporters are awaiting further action.
“It’s a priority for the chairman [Bingaman], and he’d like to see the legislation moved forward,” says David Marks, a Senate resources committee spokesman.
But reformers aren’t celebrating just yet. National Mining Association spokesman Popovich says both bills are flawed. The industry doesn’t oppose paying royalty rates, but he says those established in the bills are too high and unclear, which would punish the already hurting mining sector. Popovich also says that the end of patent sales would leave companies with no guarantee that a development could not be halted because of environmental concerns. He adds that another bill, more to the industry’s liking, may be introduced in the near future.
The divide over what mining reform should look like comes down to environmental regulation and a “shift in economic burden,” says Gordon Morris Bakken, a California State University, Fullerton history professor and author of the book, The Mining Law of 1872: Past, Politics, and Prospects. (For a review of this book, see Mineral Wrongs by Char Miller.)
Nineteenth-century public-lands management didn’t include environmental protections or recreational use. But more recent legislation, such as the Clean Water Act, has partly “hemmed in the behavior of the mining companies,” Bakken says. Lawsuits over mining companies’ lack of compliance have proven costly and time-consuming, which, Bakken says, has stirred the industry’s interest in reform and support for royalty rates. But a large roadblock remains over who should foot the bill for mine cleanups and the extent of mitigation efforts.
Velma Smith says the time for full-scale reform has come. She refers to the shifting priorities of some western representatives, such as Bingaman, who recognize that, despite mining’s historic role in the region, the 1872 law is threatening the health and safety of communities. “The regional politics are changing a little because the push for mining reform now is coming from the West,” Smith says.
Bakken forecasts passage of either Rahall’s or Bingaman’s bill as “a definite possibility.” If progress on reform is blocked, Bakken will consider the delay temporary, based on industry’s concerns over regulation and litigation costs and critics’ concerns over environmental protection and mine reclamation.
“This thing has a momentum to it,” he says.