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The Application of NEPA to the Public Land Management Agencies: Legal & Practical Considerations

R. Timothy McCrum, Public Land Law II (1997)

Hardrock mining has always been a risky business. Traditionally, the chief element of risk was involved with the exploration for, and discovery of, an economic mineral resource. That element of risk, of course, remains today, but it is equaled and perhaps overshadowed by the significant environmental regulatory and permitting impediments which now affect mineral development.

The recent report by the Evans Group, which was commissioned by the Gold Institute,2 found that the permitting process time for new gold mines in the U.S. has been averaging in the range of 4 to 5 years. Sometimes the time-frame is less, but it can be more. The Evans Group projected that the U.S. gold industry could face a significant decline in annual investments in the next decade unless regulatory impediments to opening new mines are lessened.

The requirement of Section 102(2)(C) of the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4332(2)(C), for federal agencies to prepare an Environmental Impact Statement (“EIS”) for all “major Federal actions significantly affecting the quality of the environment” remains a dominant concern in mine permitting projects today, especially where federal public lands are involved. There are at least three reasons why NEPA's procedural requirements continue to be important.