Chamber of Commerce Issues Public Comment on Federal Permitting Improvement Steering Council Proposed Rule

WASHINGTON, Dec. 30 -- Neil L. Bradley, executive vice president and chief policy officer at the U.S. Chamber of Commerce, has issued a public comment on the Federal Permitting Improvement Steering Council proposed rule entitled "Adding Mining as a Sector of Projects Eligible for Coverage Under the Fixing America's Surface Transportation Act". The comment was written on Dec. 28, 2020, and posted on Dec. 29, 2020:

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The U.S. Chamber of Commerce appreciates the opportunity to comment on the Federal Permitting Improvement Steering Council's (FPISC) proposed rule to add mining as a sector with infrastructure projects eligible for coverage under Title 41 of the Fixing America's Surface Transportation Act (FAST-41). We are strong supporters of FAST-41 as it can improve the timeliness, predictability, and transparency of the federal environmental review and authorization processes for covered infrastructure projects.

The mining of minerals, ores, and raw materials provide essential ingredients used for agricultural fertilizers, vitamin products, light-emitting diodes, solar panels, nuclear power fuel, jewelry, computer chips, glass and ceramics, and cosmetics to name a few. Not only does mining provide valuable materials that are used across the economy, but the industry also provides important jobs for communities in which they are sited and supports businesses along the supply chain including equipment, engineering, transportation, financial, and other businesses.

We fully support the fundamental goals of federal environmental reviews to appropriately consider the potential environmental impacts of federal actions; however, the environmental review process has become hampered by unreasonable costs and project delays.

Reducing delays and uncertainties associated with infrastructure investment including for mining projects has the potential to support more and better-paying jobs throughout the country.

I. We Support the Inclusion of Mining as a FAST-41 Covered Sector to Promote Timely Federal Environmental Permit Decision-Making

We support the inclusion of the mining sector with the other FAST-41 sectors currently covered including renewable and conventional energy production, electricity transmission, surface transportation, aviation, ports and waterways, water resource projects, broadband, pipelines, and manufacturing. We agree with FPISC that FAST-41 coverage does not predetermine the outcome of any Federal decision making process, but can help investors and project sponsors more quickly navigate the complex Federal environmental review process for covered infrastructure projects.

Since the beginning of the federal permitting program under the National Environmental Policy Act (NEPA) in the 1970s, the time it takes to complete environmental reviews has increased significantly. According to the Council on Environmental Quality (CEQ), of the 1,276 projects across the federal government from 2010 to 2018 that required an environmental impact statement (EIS), the average completion time for the environmental review process was 4.5 years with one quarter of the reviews taking more than 6.0 years./1

The long review times are a departure from CEQ's original intent for NEPA review, which was to conduct timely reviews. CEQ's first implementing regulation from 1978 included a number of provisions for "reducing delays," setting "appropriate time limits," and running process steps "concurrently" emphasizing the need to make speedy permitting decisions./2

CEQ incorporated certain process steps from the 1971 NEPA guidelines into the 1978 regulations to promote concurrent processing of NEPA review procedures./3

The regulations also directed agencies to "integrat[e] the NEPA process into early planning"/4 to emphasize interagency cooperation before the EIS is drafted in order to "insur[e] swift and fair resolution of lead agency disputes"/5 and to "avoid delays later in the process."/6

Many of these regulatory provisions were characterized in the "Summary of Major Innovations in the Regulations" preamble of the final rulemaking indicating the importance of timely reviews./7

Following the original NEPA regulations, CEQ issued a memorandum in 1986 to agencies on NEPA implementation advising "agencies that under the new NEPA regulations even large complex energy projects would require only about 12 months for the completion of the entire EIS process."/8

CEQ further explained that "[f]or cases in which only an environmental assessment will be prepared, the NEPA process should take no more than 3 months, and in many cases substantially less, as part of the normal analysis and approval process for the action."/9

It is clear that from the beginning of the program, CEQ intended NEPA decision-making to occur without delay, with the goal of increasing infrastructure investment and project development in a manner that strengthens our economy and enhances environmental stewardship.

Consistent with the intent of making timely decisions, FPISC has demonstrated it can help projects navigate the federal permitting process more quickly, even for complex infrastructure projects. Based on the data obtained for 59 projects covered by FAST-41, the average EIS completion time from the Notice of Intent (NOI) document to the lead agency's Record of Decision (ROD) was 3.31 years (median of 2.96 years) for electricity transmission, 2.42 years (median of 2.08 years) for pipeline, and 2.3 years (median of 1.98 years) for renewable energy production./10

We support extending FPISC's coverage to the mining sector to provide the same process efficiencies.

II. Simplifying and Reducing Delays in the Permitting Process Will Help Boost the Economy and Build the Infrastructure of the Future

Many forms of infrastructure are necessary to move people, goods, energy, and information across the country and world via pipelines, transmission lines, railroads, highways, waterways, and ports. Major investments are needed, especially now to boost the economy and build the infrastructure of the future, to address equality gaps and climate change, and to provide for the growing demand of an increasing population. Mining of mineral, ore, or raw material extracted from the ground, whether used for energy production, manufacturing, or any other purpose, will be vital to continued economic competitiveness.

To maintain American's competitive edge in the drive to address climate change, there will be high demand for critical metals - such as copper, cobalt, rare earths, lithium and silver - that are increasingly needed for renewable energy generation from solar and wind and batteries for energy storage and electric vehicles./11

The risks of security of supply for certain of these metals used in the renewable energy supply chains is high as a few countries including China and the Democratic Republic of Congo control the majority of the supply chains including mining, processing, and manufacturing. The U.S. has to invest considerably in the mining sector to ensure reliable supplies of these metals to reduce price shocks and maintain energy security while trying to address climate change.

In addition to providing important metals for the energy sector, investments in the U.S. mining sector will provide important metals used in broadband infrastructure to help close the broadband gap and help fuel the economic recovery. Looking more broadly across the economy, the major industries that consume mineral materials add $3.12 trillion to America's gross domestic product - nearly 15 percent of U.S. GDP./12

Close to 1.3 million workers are employed in the non-fuel mineral industry today/13 and their salaries are more than 25 percent greater than the combined average across all private sector jobs./14

The National Mining Association estimates that just mineral mining paid more than $17 billion in federal, state, and local taxes in 2017, supporting public schools, hospitals, and other government services./15

Below is some additional evidence of the positive economic impact that mining can have on state and local governments and the communities near them:

* In 2019, Minnesota levied over $131 million in taxes on mining-related activities in the state through several tax vehicles. These tax funds were then distributed to state, county, and local governments in 2020 using various formulas established through legislation.

The tax revenue from mining taconite and iron ore, and nonferrous minerals, such as silver and copper, provided $19 million to fund Minnesota school districts, $14 million to fund cities and townships, $14 million for homestead property tax relief, $10 million for economic development, over $17 million for environmental protection, and funding for other community initiatives./16

* According to the Nevada Mining Association, there are 29,000 people working in the Nevada mining industry across the state. The mining industry contributed an estimated $11.2 billion to Nevada's economy in 2019. For 2018, Nevada mining companies paid an estimated $280 million in taxes/17 with proceeds going to the state's general fund as well as provide funding for school districts. In 2015, Nevada mining companies donated $15.1 million to non-profits and charities in Nevada./18

* The Alaska Miners Association estimates that mining in Alaska, in 2018, provided 4,500 direct jobs, $358 million in payments to Alaska Native corporations, and $149 million in state government-related revenues through rents, royalties, fees, and taxes./19

In addition, $34 million in tax revenue went to local governments including $8 million to the Village Improvement Fund to help Alaskan Natives./20

III. Multiple Administrations Have Recognized the Importance of Timely Federal Environmental Permitting Decisions

If finalized, FPISC's proposal would help project sponsors to better navigate the federal permitting process for mining consistent with the policy goals of multiple Administrations -- of both political parties -- who have issued executive orders and presidential memoranda directing the government to increase the efficiency of federal permitting for critical infrastructure.

In 2001, President G.W. Bush issued an executive order to expedite the review of energy-related permits while emphasizing the need to maintain safety, public health, and environmental protection./21

President Obama's 2012 executive order recognized the need to improve the performance of federal permitting and the review of infrastructure projects./22

He also signed the Fixing America's Surface Transportation Act into law, which created FAST-41 and the permitting dashboard to accelerate project review decision making./23

More recently, President Trump's 2017 executive order recognized the need for increased infrastructure investment and laid out policy goals for "making timely decisions" to "complet[e] all federal environmental reviews for major infrastructure projects within two years./24

FPISC's proposal will help reduce delays for permitting of mining projects aligning with the same goals that multiple Administrations have established over the last couple decades.

IV. Conclusion

We appreciate the opportunity to comment on FPISC's proposal and support adding the mining sector to the infrastructure projects eligible for coverage under FAST-41. We are strong supporters of FAST-41 as it can improve the timeliness, predictability, and transparency of the federal environmental review and authorization processes for covered infrastructure projects.

Sincerely,

Neil L. Bradley

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Footnotes:

1/ Environmental Impact Statement Timelines (2010-2018), Council on Environmental Quality, June 12, 2020. https://ceq.doe.gov/docs/nepa-practice/CEQ_EIS_Timeline_Report_2020-6-12.pdf

2/ Implementation of Procedural Provisions Final Rulemaking, National Environmental Policy Act, Council on Environmental Quality, 43 FR 55978, 1978. https://ceq.doe.gov/docs/laws-regulations/FR-1978-11-29-43-FR-55978CEQ-NEPA-Regulations-NOFR.pdf, 40 C.F.R. Secs. 1500.5 is titled "Reducing Delays, 40 C.F.R. Secs. 1500.5(e) calls for setting "appropriate time limits" for EISs, 40 C.F.R. Secs. 1501.1(e) calls for "time limits" on preparing EISs.

3/ 40 C.F.R. Secs. 1500.2, 1501.7, 1502.25, 1506.10(c).

4/ 40 C.F.R. Secs. 1500.5(a)

5/ 40 C.F.R. Secs. 1500.5(c), 1501.1(c).

6/ 40 C.F.R. Secs. 1501.2.

7/ Implementation of Procedural Provisions Final Rulemaking, 1978. op. cit.

8/ Memorandum to Agencies: Forty Most Asked Questions Concerning CEQ's National Environmental Policy Act, Question 35, Council on Environmental Quality, 46 FR 18026 (March 23, 1981) as amended (1986). https://ceq.doe.gov/docs/laws-regulations/FR-1985-08-09-50-FR-32238-CEQ-NEPA-Regulations-NOPR-amending1502-22.pdf

9/ Ibid.

10/ Baseline Performance Schedules for Environmental Reviews and Authorizations, Federal Permitting Improvement Steering Council, April 6, 2020, https://www.permits.performance.gov/sites/permits.dot.gov/files/202004/FPISCRecommendedPerformanceSchedules2020_04062020.pdf

11/ Clean Energy Progress After the COVID-19 Crisis Will Need Reliable Supplies of Critical Minerals, International Energy Agency, May 6, 2020, https://www.iea.org/articles/clean-energy-progress-after-the-covid-19-crisis-will-need-reliable-supplies-of-critical-minerals

12/ USGS, Mineral Commodity Summaries (2020), https://pubs.usgs.gov/periodicals/mcs2020/mcs2020.pdf

13/ Ibid.

14/ Mining (except oil and gas) subsector average hourly earnings were $31.58 in October 2020 https://www.bls.gov/iag/tgs/iag212.htm, while the median hourly earnings for the private sector was $24.85. https://www.bls.gov/news.release/pdf/wkyeng.pdf

15/ The Economic Contributions of the U.S. Mining Sector (2017 Update), National Mining Association, September 2018, https://nma.org/wp-content/uploads/2016/09/Economic_Contributions_of_Mining_2017_Update.pdf

16/ Mining Tax Guide 2020, Minnesota Department of Revenue, https://www.revenue.state.mn.us/sites/default/files/2020-09/2020_mining_guide.pdf

17/ Mining Through Uncertainty, The Importance of Minerals in Our lives, Nevada Mining Association, 2019, https://www.nevadamining.org/wp-content/uploads/NvMA-Annual-Convention-Presentation-2019-Jeremy-AgueroReport.pdf

18/ The Silver State & So Much More: Mining in Nevada, Kay Foley, August 1, 2017, https://www.nevadabusiness.com/2017/08/silver-state-much-mining-nevada/

19/ The Economic Benefits of Alaska's Mining Industry, Alaska Miners Association, March 2019 https://www.mcdowellgroup.net/wp-content/uploads/2019/04/2019-ama-econ-report.pdf

20/ Ibid.

21/ Actions To Expedite Energy-Related Projects, EO 13212, 66 FR 28357 (May 22, 2001). https://www.govinfo.gov/content/pkg/FR-2001-05-22/pdf/01-13117.pdf

22/ Improving Performance of Federal Permitting and Review of Infrastructure Projects, EO 13604, 77 FR 18887, March 22, 2012. https://www.govinfo.gov/content/pkg/FR-2012-03-28/pdf/2012-7636.pdf

23/ Fixing America's Surface Transportation Act, Public Law 114-94, December 4, 2015. https://www.govinfo.gov/content/pkg/PLAW-114publ94/pdf/PLAW-114publ94.pdf

24/ Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects, EO 13807, 82 FR 40463 (August 15, 2017). https://www.govinfo.gov/content/pkg/FR-2017-08-24/pdf/201718134.pdf

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The proposed rule can be viewed at: https://beta.regulations.gov/document/GSA-GSA-2020-0018-0001

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