A Follow Up on Yesterday’s Filing in the Boundary Waters Litigation: Post-Election Context
I wanted to share the reply brief in Twin Metals v. US as soon as it hit the docket, and it didn’t hit until the very end of workday. In this post, I just want to put this brief in the post-election context.
In this appeal, Twin Metals is trying to establish that:
a) it was correct to sue for violations of the Administrative Procedure Act. In the lower court, the federal government successfully argued that the mining company had come to the wrong court, and (under the Tucker Act) should have sued for breach of contract.
b) that it has a justiciable claim. Judge Cooper ruled that Twin Metals had failed in that regard. Since the US Forest Service withdrew the Rainy River Watershed lands from mineral leasing and development, the Bureau of Land Management acted lawfully when it denied the company’s Preference Rights Lease Applications and rejected its Mine Plan of Operations.
For some context, see this and this and this; you’ll find the original appeal here.
A win for the mining company in the DC Court of Appeals will send this case back to the lower court, or, as the brief has it, “give Twin Metals its day in court.” That’s all going to take much longer than a day, of course. A remand will take this case well past the inauguration, at which point the new administration can get to work.
Past is prologue: in 2016, Antofagasta also had a case before the federal district court. The mining company dropped the case once the Trump 45 administration had completed its reversal of Obama-era protections. (See the timeline at 22 Dec 2017.) The hurdle is higher now, with the mineral withdrawal in place, but there are plans to undo that. (See also this post.)
I also want to call attention to a couple of passages where the brief touches on the energy transition. These are hardly original or brilliant arguments, and they are largely derived from the amicus briefs submitted by the National Mining Association, the Range Association, and the Building Trades. But they hint at broader questions about the role of the administrative state, permitting reform, economic development, and national security — all questions the 119th congress will likely take up.
The first comes on page 3, in the Introduction.
At bottom, the government’s and intervenors’ atextual position would turn the longstanding mining regulatory scheme into an unworkable mess. Twin Metals has expended hundreds of millions of dollars in exploration and project development and remains committed to developing a sustainable, modern mine that supports the local community and provides critical minerals for clean-energy technology and national security. But no mining regulatory system could work if applicants for permits sink enormous sums into discovering valuable deposits and satisfying all the regulations’ criteria, only to have the government arbitrarily deprive them of a reward. That is certainly not the scheme Congress and the agencies established here.
The second, page 24:
Arbitrary mining lease denials harm not just permitholders but the public too…. BLM’s unlawful actions have cost construction workers in northern Minnesota nearly $200 million in wages and benefits….. Small towns and school districts lose tens of millions of dollars in tax revenue every year the land sits unmined…. And it is impossible to quantify the environmental, economic, and national-security costs of not mining “critical minerals” for clean energy like copper, nickel, cobalt, platinum, and palladium—the minerals Twin Metals seeks to mine.
#ANTO #corruption #criticalMinerals #energyDominance #energyTransition #fragmentedTransition #GreenRight #sacrificeZones #Water