The National Environmental Policy Act (NEPA) requires federal agencies to examine projects by governmental entities, companies, and individuals that are likely to affect the environment. Yet some projects have enjoyed fast-tracked timelines since 2015 under the aptly-named FAST-41 program, which applies to certain infrastructure projects expected to cost more than $200 million.
A proposed federal rule, however, would make only “critical mineral” mining projects eligible for expedited review under FAST-41, rather than any mining project. It would also include projects designed to process or recycle critical minerals further down the supply chain.
The U.S. Geological Survey has listed a wide range of minerals critical to U.S. national security that are vulnerable to disruptions in their supply chain. Of the 50 designated critical minerals, the U.S. is more than 50% reliant on other countries for 43 minerals and has no domestic production for at least 14 of them. Some critical minerals—including cobalt, lithium, and nickel—would be needed in large quantities for batteries in electric vehicles and for storage of electricity produced by wind turbines and solar panels.
Speeding the review of large critical minerals projects through FAST-41 coverage may provide needed certainty for project developers. Projects that qualify for FAST-41 enjoy stricter timelines and a two-year statute of limitations, rather than the general six-year statute of limitations. Challenges may only be reviewed if the party raised those concerns during the public comment period.
While it is welcome that critical mineral supply chains may be strengthened by quicker approvals for mining and processing projects, non-critical minerals mining projects may be excluded from FAST-41 consideration. The federal agency administering FAST-41 claims that, since January 2021, no sponsors have sought “FAST–41 coverage for a non-critical minerals mining project.” That may simply be because the list of critical minerals is extensive, because market demand is low for non-critical minerals projects, or because non-critical minerals projects rarely meet the requirements of FAST-41 anyway. However, this does not guarantee that non-critical mineral projects won’t be proposed in the future, and “such project sponsors will be unable to derive the benefits of FAST–41 coverage.”
Of course, only a fraction of projects subject to NEPA are eligible for expedited review under FAST-41. The federal permitting process under NEPA is often lengthy: the average time to complete an environmental impact statement between 2013 and 2018 was 4.5 years, and a quarter of projects took more than six years. More controversial projects are often delayed or derailed by hostile litigation—sometimes up to six years after the NEPA review is completed—that forces federal agencies to redo environmental reviews.
2023 NEPA reforms promise to shorten timelines and document lengths, but substantive changes to make litigation less disruptive and streamline permitting could help all infrastructure projects—not just critical minerals projects, and not just those projects eligible for firmer timelines and shortened statutes of limitations under FAST-41. The proposed rule is open for public comment until October 23, 2023.