So what is the Fast-41 Act?
FAST-41 stands for Fixing America’s Surface Transportation Act. Therefore, currently covered projects must:
- involve construction of infrastructure,
- require authorization or environmental review by a Federal agency,
- are subject to the National Environmental Policy Act of 1969 (NEPA),
- are likely to require a total investment of more than $200 million, and
- do not qualify for an abbreviated environmental review and authorization process.
Ok, but what does that mean?
It means that typically, FAST-41 applies to the following sectors: conventional energy production, renewable energy production, electricity transmission, surface transportation, aviation, ports and waterways, water resource projects, broadband, pipelines, and manufacturing.
Where can I find more information on FAST-41?
Here is a link to a FAST-41 fact sheet.
So what’s up with mining?
Mining has more harmful impacts than any of the currently covered sectors. Mining produces vast quantities of waste, including toxic waste, that must be managed in perpetuity. Even with modern mining technology, chronic seepage and sudden accidental releases to the environment are the norm, and are likely to increase as mining companies develop increasingly lower grade deposits. Every mine and mine location is unique, posing technical challenges that can sometimes take a very long time to analyze, through no fault of a permitting agency.
All of this suggests that we need more rigorous, flexible permitting to reduce the damage and public costs imposed by mining. This would not be achieved by admitting mining to the FAST-41 Act that is designed to make permitting quicker.
It is also noteworthy that there is no competing need to speed up permitting. Surveyed mining companies report that the US is already among the most attractive jurisdictions in the world to invest in mining. Mine permits on federal lands take an average of just two years to complete, which is competitive with other developed countries’ permitting timelines. When federal permitting is delayed, research shows that those delays are most often due to either a lack of information from the project proponent or a lack of agency resources, neither of which FAST-41 is designed to address.
Further, before the Council can add mining as a covered sector, which is a far-reaching proposal that would have “substantial direct effects” on Indian tribes, the Council must conduct meaningful government-to-government consultation with all potentially affected Tribal governments. The Council must also evaluate the proposal’s potential to disproportionately affect minority and low-income populations.
What Comments have been made?
On December 28, 2020, a letter was sent to the Federal Permitting Improvement Steering Council in Washington DC. It was signed by at least 46 independent nonprofit, scientific, and indigenous groups with the intention of stopping mining from being added to the FAST-41 Act. The reasons listed were:
- A rigorous and flexible approach to mine permitting is essential.
- Mine permitting is already prompt.
- FAST-41 contains provisions that would undermine rigorous and careful permitting of mines.
- The Pebble Mine is a prime example of why FAST-41 should not cover mining.
- Adding mining as a covered sector required additional process.
From the letter, “Our organizations have significant experience with the federal permitting processes for mines and how those mines affect communities and the environment. We are lawyers, scientists, grassroots organizers, policy consultants, and environmental specialists working to combat harmful environmental, economic, social, cultural, and health impacts of mining and promote sustainable solutions. Collectively, we represent members, constituents, and clients across the nation who are on the front lines of the mining industry’s worst impacts– which are too often rooted in a rushed, inadequate permitting process” (Page, 2).
The letter can be accessed here and contains detailed explanations for each argument.
Did the Federal Permitting Improvement Steering Council Respond?
Yes, they did. In summary, they ignored all concerns submitted in the letter. The Council voted to add mining as a sector with infrastructure projects eligible for coverage under the FAST-41 Act. This will effectively allow qualified mining infrastructure projects to become FAST-41 covered projects. This will help Federal agencies coordinate their environmental review efforts to improve the timeliness, efficiency, predictability, and transparency of the decision-making processes associated with covered mining projects. To read more on the response letter, you can access it here.
So, what now?
At risk groups are currently huddled trying to determine what next steps should be taken. The Biden-Harris administration may also be able to roll-back the decision when they take office. More information should be coming soon. If you are interested in getting more involved in this fight, let us know!