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Mining for Access at the Interior Department

It’s no secret that big corporations specialize in wheeling and dealing to influence policies in Washington that will eventually pad their bottom line, even if their victories are the American taxpayers’ loss. So citizens place their trust in the government to strike a balance between supporting big businesses that can drive economic success and ensuring average Americans don’t get left behind. But when the administration leading the country is rife with conflicts of interest, that trust can be irrevocably eroded and the balance shifted.

For the mining industry, the President's executive order was a gift.

That intersection of powerful industries, conflicted government officials, and policymaking is illustrated in a federal initiative to secure a robust stockpile of minerals deemed “critical” to national and economic security.

In the development of its list of “critical minerals,” the Trump Administration appears to have deviated in several cases from its own metrics for what makes certain minerals critical, while an accompanying set of policies aimed at loosening restrictions on the extraction of those minerals appear to have been shaped, at least in part, by the mining industry and its access to Trump Administration officials.

According to documents obtained by the Project On Government Oversight (POGO), as the late-2017 release of the Interior Department’s report on critical minerals neared, mining industry representatives used their access to industry-friendly Interior officials to try to influence the contents of the list and, more broadly, to push for a rollback of longstanding rules limiting mining on public lands like national parks.  

Indeed, President Trump has been clear about his policy to ensure America’s energy companies do not get tangled up in burdensome regulations. His Administration, especially the Interior Department and Environmental Protection Agency, has worked to unravel scores of regulations meant to keep America’s air, waterways, and public lands clean and safe.

For decades, the Departments of Interior, Energy, and Defense have studied, and contributed to securing stockpiles of, critical minerals. The U.S. Geological Survey is the Interior Department agency responsible for tracking the country’s water, earth, and mineral resources. In December 2017, the agency published the report, “Critical Mineral Resources of the United States—Economic and Environmental Geology and Prospects for Future Supply.” The report detailed 23 minerals the agency had found were critical to “a broad range of existing and emerging technologies, renewable energy, and national security.” Many, like magnesium, graphite, and cobalt, have long been considered critical by various government agencies for their use in things like rechargeable batteries, car parts, and radar equipment. Others are new additions to the list for their use in technologies that have emerged since the publication of the last version of the Interior Department’s list, in 1973.

The day after the release of the report, President Trump issued an executive order demanding a new list from Interior and a report from the Commerce Department that would include “recommendations to streamline permitting and review processes.” The order followed the release of the President’s Energy Independence Policy executive order earlier that year, which “lifts job-killing restrictions on the production of oil, natural gas and shale energy,” according to a White House fact sheet.

For the mining industry, the President’s order was a gift—and it came as part of a series of policy initiatives to roll back environmental regulations that industry and the Trump Administration alike view as unnecessarily delaying or restricting mining on public lands.

The mining industry’s push to make it easier for companies to obtain mining permits on federal lands is concerning for a number of environmental reasons, and an examination of a 19th-century mining law reveals that the push may have a purpose at odds with the public interest. Under the General Mining Act of 1872, companies that mine underground, or “hardrock,” minerals from federal lands are not required to pay royalties to the U.S. government. In some cases, those federal lands include what are now national monuments and parks such as the Grand Canyon.

So perhaps it comes as no surprise that when the Interior Department published its latest critical minerals list in May 2018, some of the 15 new minerals added after the President’s executive order were hardrock minerals, including uranium and potash. Members of Congress and advocates have questioned the methodology used for the list’s creation, described in the February 2018 draft list.

“The criteria the feds used to determine criticality changed from night to day,” said Amber Reimondo, energy program director for the nonprofit advocacy group Grand Canyon Trust.

The criteria the feds used to determine criticality changed from night to day.

Amber Reimondo, energy program director for the nonprofit advocacy group Grand Canyon Trust

Several of the new additions have not previously appeared on critical minerals lists developed by the Interior and Energy Departments and six are not even included in the Defense Department’s expansive and nearly duplicative list of “strategic materials.” Since 1939, the Defense Department’s Defense Logistics Agency has stockpiled dozens of metals, alloys, and minerals deemed vital to national defense and potentially vulnerable to a supply chain disruption, a mission almost identical to that which President Trump outlined in his 2017 Critical Minerals Executive Order. The Defense Logistics Agency’s list is reviewed and updated annually, a spokesman told POGO.

A closer look at three of the newly “critical” minerals shows the dubious justifications for their inclusion and a government-wide policy shift regarding mining on public lands. The documents POGO obtained offer a window into mining industry representatives’ efforts to influence the Interior Department’s development of the list beginning in the first month of the Administration and leading up to the President’s order for a new list. While none of the documents demonstrate that there was an industry push to specifically include uranium, potash, or helium on the list, what is clear is that the mining industry was granted insider access to Interior officials.

Meanwhile, conflicts of interest within the Interior Department undermine public trust in these policy changes. Interior Secretary David Bernhardt, a former oil and gas lobbyist, is the Trump Cabinet’s most conflicted member, according to a Center for American Progress analysis, with 20 of his 27 former clients, including mining companies, lobbying the Interior Department on policy changes in the last two years. The Department’s Inspector General opened an ethics investigation into Bernhardt just four days after he was confirmed for the position.

But Bernhardt is hardly the only conflicted political appointee at the Department. In February, the Campaign Legal Center detailed ethics violations by six other high-ranking Interior officials.

“It’s not about security”

Despite its national security uses in the development of nuclear weapons and nuclear power, uranium has never before been considered a “critical mineral.” Even the Pentagon doesn’t consider it necessary to stockpile uranium under its stewardship of “strategic materials.”

“Uranium is not included as a strategic and critical material…because reliable supplies are sufficient to meet non-fuel demand under the emergency scenarios used to determine [National Defense Stockpile] requirements,” a Defense Logistics Agency spokesman told POGO.

Uranium’s inclusion on Interior’s list of critical minerals has caused a stir among environmental groups concerned that mining companies are eyeing a huge amount of high-grade uranium ore in the Grand Canyon region. One month before President Trump’s executive order requiring a new list of critical minerals, the Agriculture Department’s U.S. Forest Service issued a report recommending a review of the Interior Department’s temporary ban on new uranium mines in the public lands around Grand Canyon National Park, instituted under the Obama Administration.

Groups such as the Grand Canyon Trust say they are concerned that industry will use uranium’s inclusion on the list to push for a rollback of the uranium mining ban around the Grand Canyon. That fear is not unfounded. Earlier this year, President Trump reduced the Bears Ears National Monument in Utah by 85 percent shortly after uranium companies met with Interior Department officials. In the works since 2017, the reduction was ultimately significantly more than the “minor boundary adjustments” the companies asked for, Roll Call reported.

The inclusion of uranium on the critical minerals list could in part be an effort to support those same domestic uranium mining companies. In 2017, domestic production of uranium dropped to nearly historic lows, likely because uranium prices had also dropped to extreme lows. Even the one domestic mining company exempted from the ban around the Grand Canyon region, Energy Fuels Resources, has postponed the actual mining of the ore due to the dwindling market.

There may be another reason uranium was included on the Administration’s critical minerals list.

Because uranium is a hardrock mineral, the companies mining it would normally be exempt from paying royalties to the federal government for extraction on public lands if those leases were issued by the Interior Department, as mining permits and leases typically are. However, under the Atomic Energy Act of 1954, the Energy Department also can issue uranium leases to supply the mineral for national defense. Under that authority, as of 2012, the Energy Department has collected approximately $64 million in royalties from uranium mining companies since the 1940s, according to the Government Accountability Office.

Uranium’s designation as critical could give uranium companies more leasing options on lands managed by Interior where they do not have to pay the federal government any royalties.

Representatives Raúl Grijalva (D-AZ), chairman of the House Natural Resources Committee, and Alan Lowenthal (D-CA), chairman of the Subcommittee on Energy and Mineral Resources, recently sent the Interior Department a letter requesting more information about how uranium ended up on the list. The letter notes that Interior’s methodology for creating the critical minerals list includes its consideration of a marketing report on uranium contracts, prices, and purchases, the only marketing document considered.

Last month, Representative Grijalva introduced legislation to remove uranium from the critical minerals list. “Keeping uranium on the critical mineral list is nothing more than a license for mining companies to pilfer our public lands in search of a commodity they can make exorbitant profits on,” Representative Lowenthal, one of the bill’s cosponsors, said in a statement supporting the bill.

[Uranium] remains on the list as an unnecessary giveaway for a few special interests.

Representative Alan Lowenthal (D-CA), chairman of the Subcommittee on Energy and Mineral Resources

“It’s not about security—through reserves, current domestic production, and trade with our close allies Canada and Australia, we have sufficient access to uranium,” he said. “It [uranium] remains on the list as an unnecessary giveaway for a few special interests.”

In a June House Natural Resources Committee hearing, several Members of Congress questioned uranium’s designation as critical. Representative Diana Degette (D-CO) asked Steve Fortier, director of the National Minerals Information Center at the U.S. Geological Survey, why uranium made it onto the final list when it didn’t meet the definition of a critical mineral as set out by the President’s executive order.

Fortier highlighted uranium’s non-fuel uses, though he also noted that most uses for uranium are as fuel, and maintained that reliance on uranium imports could put the U.S. in a poor strategic position. “The current supply situation is not one we can assume will be sustainable in the long run,” he stated at the hearing.

Criticality Outliers

Two other new names on the final critical minerals list further illustrate the seemingly arbitrary criteria for the list: potash and helium. Both stand out on the U.S. Geological Survey’s chart describing each material’s “important technologies and applications” as having the fewest national security or economic applications.  

They’re also primarily mined in the U.S. or Canada, and are unlikely to be disrupted by foreign trade disputes.

While potash, a common fertilizer, is critical for some U.S. farmers, the dwindling number of American companies mining the material have not been able to find a demand that meets their supply. According to the most recent available data provided by the U.S. Geological Survey, one of the biggest producers of potash stopped production due to “increased foreign competition, market oversupply, and weak prices.”

Helium, aside from obvious use in balloons, is used to make semiconductors and MRI machines. It’s also a byproduct of oil and natural gas drilling, industries that hit record-high production levels in 2018. Accordingly, U.S. Geological Survey recommends strategies to boost the domestic production of oil and gas to ensure a robust stockpile of helium. It’s a curious recommendation given those industries’ recent successes.

Additionally, the administration of helium production and refining has been a focus of the Interior Department for several years. “The Helium Stewardship Act of 2013 is intended to complete the privatization of the federal helium reserve in a competitive market fashion that ensures stability in the helium markets, while protecting the interests of American taxpayers,” the Government Accountability Office stated in a report on the implementation of the law.

Under that law, the Department stores about 10 billion cubic feet of crude helium in an underground federal reserve. The stockpile makes up almost half of the total U.S. production of helium, calling into question why it was included on the critical minerals list now, as the stewardship law has been implemented and working for several years. 

“Critical minerals should be about need, not want”

There appears to be little, if any, sound justification for designating uranium, potash, and helium as “critical.”

Interior screened most potential critical minerals, giving each a “criticality value” based on three factors: supply risk, production growth, and market dynamics.

Representative Grijalva’s letter to the Interior Department delves into this process, highlighting that neither potash nor helium met the criticality value threshold to be eligible for further consideration on the list.

Per the President’s order, as a fuel mineral, uranium was exempted from inclusion on the list, and so was not screened under the same methodology. Yet Interior added uranium, even though it falls into a category that’s specifically not supposed to be designated as critical.

“The list seems oriented more toward specific operations that may not be in production currently because they aren’t economic,” said Kevin Ashley, a retired professional mining engineer and former policy advisor for Representative Alcee Hastings (D-FL). “Critical minerals should be about need, not want.”

It appears that Interior was listening to industry voices.

A few months before the release of the final list, the National Mining Association, the trade organization representing U.S. mining interests to policymakers, released a statement urging the Department to “broaden its view of ‘criticality.’”

“All minerals are ‘critical’ when we need them and can’t get them,” said Hal Quinn, the association’s CEO.

Mining for Access

The National Mining Association has been pushing for loosening, or “streamlining,” the mining permitting process for years. One of the trade organization’s “core issues” is combatting what its website refers to as the “third-world permitting system” for mining in the U.S.

The association argues that unnecessary red tape and environmental regulations have stymied mining companies’ ability to remain competitive with foreign markets, leading to a dangerous reliance on foreign sources for minerals critical to the American economy and national security.

“The problem is that gaining the necessary approvals to open a new U.S. mine can take seven to 10 years, and often longer,” Quinn wrote in a 2017 op-ed.

But that claim doesn’t hold water, according to a Government Accountability Office report from the year before President Trump’s order. The watchdog found that on average the mine review and approval process took only two years. (While one mine took over 11 years to approve, another only took less than a month.) In fact, the office found that the most common reason the process can take longer than average is the companies submitted “incomplete or vague” plans of operation which required additional information before the Interior Department could proceed.

“Environmental regulations have been a […] an excuse,” Ashley told POGO. “I’ve been through the project evaluation process 50 times and a lot of timeline extension comes from mining companies trying to reduce costs by not undertaking environmental site characterization early enough in the process.”

A look at the schedules of Interior Department political appointees shows the Administration began working on critical minerals during President Trump’s first weeks in office. Mining industry veteran and former House Natural Resources Committee staffer Kathleen Benedetto joined the Interior Department as a special advisor in January 2017, and began meeting with U.S. Geological Survey officials on critical minerals three months later, the Guardian first reported.

It seems that in the months before the President’s executive order demanding a new list of critical minerals, mining industry officials had little difficulty meeting with Interior Department officials to make their case for policy changes to make it easier for companies to get permission to mine minerals critical to their bottom line.

In August 2017, then-Deputy Secretary of the Interior David Bernhardt (he was confirmed as secretary in April 2019) was tapped to lead a meeting titled “CEO Critical Minerals Roundtable,” according to documents obtained by POGO through the Freedom of Information Act (FOIA). The attendee list, detailed in a document made public through another organization’s FOIA request, is a who’s who of the biggest mining companies in operating in America, such as Rio Tinto, Newmont Mining, and the National Mining Association itself.

Following the meeting, Quinn wrote to then-Secretary Ryan Zinke, thanking him for convening the roundtable, according to POGO’s documents. “I trust the information and insights we shared during the Roundtable provided an actionable course for moving forward to shape policies that will allow the U.S. mining industry to perform to its full potential for the benefit of the nation,” Quinn wrote.

The emails POGO obtained further detail the access the National Mining Association leadership has to influential policymakers. For example, now-Secretary Bernhardt agreed to speak at the association’s October 2017 board of directors meeting. Energy Secretary Rick Perry and Senator Lisa Murkowski (R), from mineral-rich Alaska, were also slated to speak to the board.

While the emails POGO obtained do not indicate what was discussed in those meetings, the Women’s Mining Coalition, a grassroots mining industry advocacy group that has partnered with the National Mining Association, provided a bit more detail on what the “actionable course” Quinn referenced in his email to then-Secretary Zinke might entail. The minutes from the coalition’s September 2017 annual meeting confirm that mine-permitting was a topic of discussion at the Critical Minerals Roundtable. The minutes describe efforts to remove barriers to accessing critical minerals and an emphasis among officials at a “high level” at the Department on improving permitting conditions for the companies.

In April 2018, less than a month before the Interior Department published its finalized list of critical minerals, Quinn reached out to agency leadership again. An assistant at the Department responded to his request for a meeting with then-Deputy Secretary Bernhardt in about 15 minutes. A few weeks later, the industry representative had a meeting with the official who would later lead the Interior Department.

On June 4, 2019, the Commerce Department released its report, as mandated by the President’s order.

The report outlines six “calls to action” that describe what the federal government will do to comply with the executive order, and indicates that easing permitting restrictions for mining on federal lands is a priority. The calls to action include one to shorten permitting timeframes and improve access to minerals located on public lands. That section features eight goals aimed at everything from “evaluating” environmental protection laws to reviewing land-use restrictions for mining on public lands.

These goals direct Interior to review all lands that are currently protected, or “withdrawn,” from mining development to determine if those restrictions should be lifted in the name of obtaining critical minerals. The report also urges Interior to expedite environmental studies, which the Department promised to begin undertaking the day the Commerce report was released.

The National Mining Association “applauded” the Commerce report’s recommendations, focusing on those that dealt with the permitting process.

“While the report specifically mentions critical minerals, it also notes that any recommendations to improve permitting processes for critical minerals will improve permitting processes for all minerals administered by federal land management agencies,” the association wrote in a June 4 press release.

Former POGO Investigative Intern Maia Berlow provided research support for this investigation.