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Invoking the Defense Production Act is the wrong solution to mineral shortages

Invoking the DPA now feels like the first step toward what the industry actually wants – the fast-tracking of mining projects so that they don’t require extensive regulatory review.

President Joe Biden
Investing in the circular metals economy is part of the Biden Administration’s recently released comprehensive strategy for mining reform.
REUTERS/Leah Millis

Recent news reports suggest the Biden Administration is likely to invoke the Defense Production Act (DPA) to address key shortages in critical minerals, like lithium and nickel. This is a response to supply chain disruptions brought on by the Russian war with Ukraine.

The DPA has been recently used to command the production of medical equipment during COVID-19. This law enables a president to use loans, direct purchases and other business investments to incentivize production of goods and materials to promote national defense.

Using the DPA for clean energy supply chains would seem like a popular strategy. Earlier this month, Sens. Lisa Murkowski (R-AK) and Joe Manchin (D-WV) urged President Biden to take this action. Energy activists are also heralding this as a move that can spur investments in electric vehicles.

Yet, the DPA is the wrong instrument for increasing domestic supplies of minerals for clean energy development. In the U.S., a new mine will take an average of 10 years to receive its permits because of the extensive investigations needed to prove safety. Even if minerals are extracted, they need to be shipped abroad for processing since there are no facilities in the U.S. to process these minerals. New mines and processing facilities simply cannot come online fast enough to address an urgent need for minerals. And, the Biden Administration has already supported the mining industry through the recent infrastructure law. The 2020 Energy Act also directed the Department of Energy to invest $740 million in research and development for the industry.

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Tellingly, the mining industry has been lobbying for use of the DPA for years. Invoking the DPA now feels like the first step toward what the industry actually wants – the fast-tracking of mining projects so that they don’t require extensive regulatory review. While the press is reporting that the Interior and Energy departments will help implement the use of the DPA, these same agencies have been blocking new mines because of the danger they pose to natural resources and public health, particularly for tribal communities. For example, in October 2021 the Biden Administration announced a 20-year ban on new mining activity on federal land near the Boundary Waters Canoe Area Wilderness.

photo of article author
Roopali Phadke
Mining proponents are quick to respond that environmentalists can’t have it both ways – clean energy and no new mines. But what’s missing from this discussion is a robust look at alternatives. The European Union’s critical minerals approach, for example, invests in a circular metals economy by focusing on recycling, re-use, repair, and substitution. While it’s unlikely that recycling and reuse can fully meet the demand of these metals, the EU invests in this approach because it’s also a way to reduce hazardous wastes in a region where landfills have been banned in 16 EU member states, as well as in Norway, Switzerland and the United Kingdom. It is simply criminal to focus on incentivizing the mining of undeveloped or protected lands when we know the environmental disasters that result.

Investing in the circular metals economy is part of the Biden Administration’s recently released comprehensive strategy for mining reform. This policy aims to strengthen permitting standards and define what sustainable and responsible mining looks like in the 21st century.  The goal is to revise the antiquated 1872 law that essentially allows mining companies to purchase a mining claim for either $2.50 or $5.00 per acre, grossly undervaluing the land itself and all the ecosystem services provided. Just a few weeks ago, Interior Secretary Deb Haaland stated that “The 150th anniversary of the Mining Law of 1872 is a great opportunity to take a hard look at how we regulate and permit mining in this country.”

Given all this important work underway, the DPA is a distraction and intended to serve up favors to Biden’s political opponents and a mining industry intent on picking up spoils from the Russian invasion. This is not how we spur a just and clean energy revolution.

Roopali Phadke is professor and chair of the Environmental Studies Department at Macalester College and the principal investigator of a National Science Foundation multi-year study on the future of mining in the 21st century.