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Administrative Review and the National Environmental Policy Act: The Impacts on Mineral Development

Constance E. Brooks, Proceedings of 36th Annual Rocky Mountain Mineral Law Institute (1990)

Congress enacted the National Environmental Policy Act (NEPA)1 more than twenty years ago to bring environmental concerns to the forefront of federal decision-making, and to inform the public that environmental concerns were considered in the federal decision-making process.2 Because NEPA [21-3] compliance is a condition precedent to access to federal land, it plays a significant role in the future of mining and mineral development.

Compliance is deceptively simple. NEPA does not mandate a specific decision, but only requires an agency to prepare a statement identifying the environmental, social, and economic impacts of a given major federal action and consider alternative ways to accomplish the project. This straightforward requirement of an environmental impact statement or EIS has generated a large body of case law specifying if and when an EIS needs to be prepared and its contents.

The minerals industry faces a unique challenge in complying with NEPA because NEPA requires environmental review at the earliest possible stage of a project, when very little is known about potential development.

Despite the volume of NEPA case law, the rules for compliance are not clear. The Interior Board of Land Appeals cases appreciate the need to provide access to federal land for mineral exploration and development. However, the federal courts are less sympatheti