Articles Posted in Legislation

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On December 18, 2025, the House of Representatives passed H.R. 1366, the Mining Regulatory Clarity Act of 2025, legislation that seeks to overturn a 2022 Ninth Circuit Court of Appeals decision that upended more than four decades of regulatory practice governing hardrock mining on federal lands. The bipartisan bill, introduced by Representative Mark Amodei (R-NV) and co-led by Representative Steven Horsford (D-NV), creates a new statutory category of “mill sites” for ancillary mining activities and establishes an Abandoned Hardrock Mine Fund to support remediation of legacy mining sites. The bill can be viewed here.

The legislation follows President Trump’s March 20, 2025, Executive Order 14157, “Immediate Measures to Increase American Mineral Production,” (which we discuss on our blog: President Trump’s March 20 Executive Order Bolsters Domestic Mineral Production Through Permitting, Leasing, and Funding) which directed the National Energy Dominance Council to prepare recommendations to Congress “to clarify the treatment of waste rock, tailings, and mine waste disposal under the Mining Act of 1872.” The Executive Order explicitly recognized that the Rosemont decision and subsequent agency interpretations created uncertainty by requiring operators to validate all mining claims—including those used solely for waste disposal—before obtaining plan of operations approval.

The Rosemont Decision

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On December 18, 2025, the House of Representatives passed the Standardizing Permitting and Expediting Environmental Decisions (SPEED) Act by a vote of 221-196. The legislation represents the most comprehensive proposed reform of the National Environmental Policy Act (NEPA) in decades and marks a significant milestone in efforts to streamline federal environmental permitting for infrastructure and resource development projects. View a copy of the bill: H.R. 4776

The bill’s passage came after Republican leadership added an anti-offshore wind provision to secure votes from GOP hardliners. The amendment led the American Clean Power Association to withdraw its previous endorsement, transforming what had been conceived as technology-neutral permitting reform into more partisan legislation.

SPEED Act Background

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The Trump administration has unveiled the first 10 mining projects designated for accelerated federal permitting under Executive Order 14157, Immediate Measures to Increase American Mineral Production, which prioritizes expedited permitting, federal land leasing, and funding of mining projects (discussed in our previous blogpost here). Published by the Federal Permitting Improvement Steering Council (Permitting Council), the list — including gold, silver, copper, lithium, coal, and potash ventures — prioritizes ventures critical to reducing U.S. reliance on foreign minerals and advancing national energy and economic security goals.

The Permitting Council identified high-value projects as “transparency projects” on the FAST-41 Federal Permitting Dashboard created under the Fixing America’s Surface Transportation (FAST) Act. Notable ventures include:

  • Stibnite Gold Project (Idaho): A proposed open-pit gold mine in central Idaho, aiming to mine gold, silver, and antimony.
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By Kerry Shapiro

On January 20, 2025, President Donald J. Trump issued the “Unleashing American Energy” Executive Order to, among other things, establish the United States as a “leading producer and processor of non-fuel minerals.” (“Executive Order”) The Executive Order emphasizes key energy policies, including the removal of EV-mandates and other actions to push forward the development of domestic energy. The Executive Order goes on to set forth several important policy directives focusing on mineral development, especially critical minerals. Broadly speaking, the Executive Order seeks to (1) promote domestic development of mineral resources; (2) cut significant red-tape by removing regulations and encouraging streamlined permitting, and (3) reevaluate historic withdrawals of public land for mineral and resource development. The following are among the litany of actions aimed at “unleashing” American energy and natural resources:

  • Comprehensive agency review of existing regulations that impose an “undue burden” on the development and production of domestic energy and mineral resources, and development of “action plans” to address same within 30 days of this Executive Order;
  • Eliminate all permitting delays, where possible, by utilizing tools such as “general permitting” or “permit by rule,” as well as “emergency authorities,” for projects deemed “essential for the Nation’s economy or national security;”
  • Prepare recommendations for legislative permitting reform, to be presented to Congress;
  • Reassessment of public land withdrawals;
  • Commence updated surveying and mapping for critical mineral resources;
  • Review and revise the National Environmental Policy Act (“NEPA”) and its implementing regulations, to facilitate compliance with the Executive Order and “prioritize efficiency and certainty over any other objectives, including those of activist groups” and avoid “delays and ambiguity” in federal permitting;
  • Limit environmental review to only “legislated requirements for environmental considerations,” and prohibit the use of “arbitrary or ideologically motivated” methodologies;
  • Immediate revocation and/or revision of numerous executive orders and regulations from the prior administration.

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By Kerry Shapiro

On May 25, 2023, the United States Supreme Court issued its ruling in Sackett v. Environmental Protection Agency, narrowing the scope of the Environmental Protection Agency’s (EPA) regulatory authority under the Clean Water Act (CWA). The court held that the EPA’s authority under the CWA extends only to wetlands and permanent bodies of water with a “continuous surface connection” to “traditional interstate navigable waters.”

Sackett addressed the scope of EPA’s authority to regulate wetlands under the CWA, which generally prohibits discharging pollutants into “the waters of the United States.” 33 U.S.C. §1362(7). The Sacketts petitioned the Supreme Court for review of the Ninth Circuit’s decision upholding the scope of EPA’s authority. The Sacketts had purchased a lot upon which they planned to build a home and began backfilling this lot with dirt in preparation. However, the EPA sought to exercise jurisdiction, based on the assertion that the lot contained wetlands and backfilling it violated the CWA. At issue for the Court was whether these wetlands were, in fact, “waters of the United States” subject to regulation under the CWA.

The Supreme Court’s decision resolves ambiguity in the CWA over the meaning of “waters of the United States” within the context of the statute. Justice Alito, in his opinion, described the current confusion stemming from the ambiguity of the CWA’s language: “[W]hat does that phrase mean? Does the term encompass any backyard that is soggy enough for some minimum period of time? Does it reach ‘mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, [or] playa lakes?’ How about ditches, swimming pools, and puddles?”

This jurisdictional ambiguity has existed, in part, since the plurality split in the Court’s decision in Rapanos v. United States (2006) 547 U.S. 715, which articulated two tests for lower courts to use in determining whether the CWA applies: Justice Scalia’s bright-line rule, covering only wetlands next to “relatively permanent, standing or continuously flowing bodies of water”; and Justice Kennedy’s broader interpretation, protecting wetlands that were part of a “significant nexus” with a navigable body of water. Continue reading

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By Kerry Shapiro

The last month has seen a flurry of activity related to the California and Federal Endangered Species Acts, including:

  1. The California Supreme Court’s denial of review in the Almond Alliance of California v. California Fish and Game Commission litigation
  2. Governor Gavin Newsom’s appointment of a fifth member of the California Fish and Game Commission
  3. That Commission’s October 9, 2022 hearing, where consideration of the petition to list the western Joshua tree (WJT) as a threatened species was continued for a second time
  4. The United States Fish and Wildlife Service’s proposed listing of the Bay-Delta longfin smelt on October 7

First, on September 21, 2022, the California Supreme Court denied a petition to review a ruling by the 3rd District Court of Appeal in Almond Alliance of California v. Fish & Game Com., (2022) 79 Cal.App.5th 337. This denial lets stand the decision by the Court of Appeal, allowing the listing of four bumble bee species under the California Endangered Species Act (CESA). In that decision, issued in May of this year, the Court of Appeal reversed the decision of the trial court, reasoning that the Fish and Game Commission could list insects because the California legislature – despite evidence accepted by the trial court that the legislative committees that wrote CESA’s language explicitly believe insects were ineligible for listing – found that “the term of art employed by the Legislature in the definition of fish is not … limited” to aquatic species. Continue reading

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By Kerry Shapiro

On August 30, 2021, the U.S. District Court for the District of Arizona issued an order in Pasqua Yaqui Tribe, et al. v. U.S. EPA, et al., vacating the Navigable Waters Protection Rule (“NWPR”) and remanding the rule back to the Environmental Protection Agency (“EPA”) and U.S. Army Corps of Engineers (“Corps”) (collectively, the “Agencies”) for further review. The NWPR was enacted during the Trump administration and represents the EPA’s latest attempt to define the term “waters of the United States” (“WOTUS”). The NWPR represented a categorical approach to Clean Water Act (“CWA”) jurisdiction (i.e. certain water features were categorically excluded from jurisdiction under the CWA, including ephemeral streams), and it significantly narrowed the scope of such jurisdiction. Following the court’s ruling, EPA announced the Agencies would halt implementation of the NWPR and instead interpret WOTUS consistent with the broader jurisdictional scope of the pre-2015 regulatory regime until further notice. The National Stone, Sand, and Gravel Association (“NSSGA”), among several business interests, intervened into the case, arguing that a return to the pre-2015 regulatory regime would increase regulatory uncertainty, including, as discussed below, a likely increase in 404 permitting.

In this case, the plaintiffs alleged that the NWPR exceeds the EPA’s statutory authority and is contrary to the CWA’s text and objectives, which require broad protection of all of the U.S.’s waters, because the NWPR excludes certain waters from the protections required by the CWA. The NWPR can be viewed here. The plaintiffs, several federally recognized Native American tribes, also alleged that the EPA failed: (1) to explain its decision to reverse prior regulations; and (2) to consider important aspects of that prior decision, including the effects on water quality and aquatic ecosystems, the ecological importance of protecting the excluded waters, and the effects of the reversal of prior regulations on the CWA. Plaintiffs moved for summary judgment in the case, and in response the Agencies filed a motion asking for voluntary remand of the NWPR without vacating it. This would have allowed the Agencies under the Biden administration to continue to implement the NWPR as the Agencies simultaneously worked to draft a replacement. Plaintiffs agreed that the NWPR should be remanded, but also argued for vacatur and implementation of the pre-2015 regulatory regime, asserting that intermittent and ephemeral streams in Arizona would otherwise be left unprotected. Continue reading

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By Kerry Shapiro

On September 9, 2021, the House Environmental and Natural Resources (“ENR”) Committee finished its mark-up of the $3.5 trillion reconciliation budget measure. Inserted at the very end of the 117-page mark-up is Section 70807: Hardrock Mining, which is a quiet attempt to reform the Mining Law of 1872.

The ENR Committee’s change would, for the first time, impose fixed royalties on all locatable minerals mined on Federal land. Under the terms of the proposed legislation, minerals, mineral concentrates, or products derived from locatable minerals, would be subject to royalty fees at the following rates:

  • 8% for all new mining operations
  • 8% for all new federal land added by plan modification to existing mining operations
  • 4% for mining operations with an existing approved plan of operations, or who submitted a plan of operations prior to the effective date of the legislation

All royalty percentages would be calculated based on gross income derived from mining. Continue reading

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By Kerry Shapiro and Martin Stratte

On January 20, 2021, President Biden’s first day in office, Acting Secretary of the Interior Scott de la Vega issued Secretarial Order No. 3395 (Order), which temporarily suspends decision-making authority delegated to Department of the Interior (DOI) Bureaus and Offices, such as the Bureau of Land Management. The Order will be in effect for at least 60 days.

According to the DOI website, the Order, while in effect, reserves decision-making authority for “Department leadership” described in the Order as “confirmed or Acting official[s]” who hold certain positions enumerated in the Order. The positions to which decision-making authority is reserved include the Secretary, Deputy Secretary, Solicitor, and six Assistant Secretaries identified in the Order.

Thus, the Order suspends the decision-making authority of DOI Bureaus and Offices, and restricts such authority to a select few high-level DOI officials who have been or will be put in place by the Biden Administration, until after the Administration has had at least 60 days to appoint new, and evaluate existing, officials within DOI Bureaus and Offices. Continue reading

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On December 9, 2020, the California Energy Commission (CEC) appointed nine members of the new Blue Ribbon Commission on Lithium Extraction in California (Lithium Valley Commission).  The appointments were made pursuant to Assembly Bill 1657 (Garcia, Chapter 271, 2020) (AB 1657), which was signed into law by Governor Newsom on September 29, 2020.

AB 1657 requires the CEC to establish the Lithium Valley Commission to review, investigate, and analyze issues and potential incentives regarding lithium extraction and use in California, and submit a report to the Legislature documenting its findings and recommendations, on or before October 1, 2022.  AB 1657 also authorizes the CEC to appoint nine of the 14 members of the Lithium Valley Commission.

The nine members appointed on December 9, 2020 include:

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