Mining: A View from Washington, DC Tawny Bridgeford, Deputy General Counsel

Mining: A View from Washington, DC Tawny Bridgeford, Deputy General Counsel

2014 Year in Review: Regulatory Burdens Source: American Action Forum (http://americanactionforum.org/research/2014-year-of-action-year-of-regulation ) 2

2014 Year in Review: Regulatory Burdens 3

The Race is on in 2015 Race to the finish Administration Congress Back in the race Continue to Push Damaging Agenda via Executive Action and Agency Rulemaking Republicans Maintain Control of the House of Representatives Republicans Gain Control of the Senate 4

NMA Strategy Congress Legal/Regulatory Media Engagement Building Coalitions Grass Roots Oversight Legislation Riders Agency budgets Delegation support Committee leadership Making the case o Legal o Technical o Economic Rulemaking engagement Procedural obstacles Litigation Media tours (Radio & TV) Earned media Paid media Framing stories 3 rd party voices Social media amplification 3 rd Party advocates Existing coalitions State outreach Grow Mobilize Connect across platforms 5

VIEW FROM CAPITOL HILL

Situational Assessment: Congress Congress under one party control Opportunities: Control of the agenda and calendar Double down on oversight Stand-up legislation in both bodies Control of conference committees Limitations: Short of 60 votes to end filibuster (54-46) Short of 67 votes to override a veto White House positions and priorities Priority given to bills that can pass the Senate Moderate members up for reelection in 2016 Bottom Line : Margin short of breaking the President s Executive Pen Adequate to stop bad legislation 7

Under the Dome Make-up of House and Senate in the 114 th Congress Senate House Republicans 54 245 Democrats 44 188 Independents 2 0 Vacancies 0 2 Total 100 435 8

Current make-up of the U.S. Senate 114 th Congress WA 2 Democrats 2 Republicans 1 Democrat + 1 Republican 1 Democrat + 1 Independent 1 Republican + 1 Independent OR NV CA ID UT AZ MT WY CO NM ND MN SD NE IA KS MO OK AR WI IL IN MI TN KY OH PA WV VA SC NC VT ME NH NY MA RI CT NJ DE MD MS AL GA AK TX LA AK HI FL National Journal: http://www.nationaljournal.com/membership/document/3822 9

Current make-up of the U.S. House of Representatives 114 th Congress Democratic Republican National Journal: http://www.nationaljournal.com/membership/document/download/3822-1 10

Leveraging the Political Shift in the States Governors: 31 18 1 (GOP +9 since 2009) Legislatures: 30 11 9 (GOP +15 since 2009) *Gold indicates an Independent Governor *Purple indicates mixed-party legislatures State officials increasingly important allies Governors Attorneys General State Legislators 11

Congressional Plan Legislation: Strong platform for raising awareness Rallying point for allies Gateway to oversight and riders Oversight: Budget: Riders: Degrade bad policies: Hearings, requests for information and investigations Targeted cuts to impair agencies ability to proceed Constrain options, delay and run-out the clock 12

Flooding the Policy Zone Targeting Policies for Oversight, Riders, Budget Cuts Issue Oversight Legislation Rider Budget GHG CPP CERCLA Bonding Ozone WOTUS CWA 404 Vetoes Fill Material Steam Buffer GHG NEPA Sage Grouse Coal Royalties Coal Dust Mine Valuations IG7 13

Minerals Plan Public Policy Objectives: Permit Streamlining o Legislation and Litigation Access to Mineral Lands o Legislation and Litigation Predictable Regulatory Structure o Legislation and Litigation Awareness Campaign: Minerals Make Life Connecting the dots for policy makers o Manufacturing o Technology o Innovation 14

Minerals Permit Streamlining Legislation Purpose: Address a major policy impediment to business success, while forestalling bad policies (e.g. Mining Law) Progress to date: Strategic Minerals Production Act Passed the House 3 times in the last two Congresses Plan for 114 th Congress: Rep. Amodei (R-Nev.) introduced the National Strategic and Critical Minerals Production Act (H.R. 1937) Senator Murkowski (R-Alaska) introduced the American Mineral Security Act of 2015 (S. 883) Potential pathways: o Stand alone o Incorporation into energy legislation 15

PRIORITY MINING ISSUES Policy & Rulemaking Initiatives out of the Executive Branch

Groundwater Standards for In Situ Uranium Waters of the US Stream Protection Rule GHG Regulations EPA Financial Assurance Chemical Security CHALLENGES ESA Sage Grouse Definition of Solid Waste CAA Ozone Standard Coal Ash CWA Permit Veto 17

RCRA Definition of Solid Waste Litigation (AGAIN) Questions Remain on Regulatory Certainty Favorable Final Rule 30+ Years of Regulatory Uncertainty Finalizes Rule with Concessions to Industry EPA Reverses Course Proposes Harmful Rule What s at Stake? Potential new enforcement actions against companies for failure to meet the mandatory legitimacy criteria Compliance burdens associated with a new documentation, certification and notice process if legitimacy criteria not met NMA s Actions: Extensive comments on draft rule Intervention in Sierra Club Lawsuit Face-to-face EPA meetings on proposal Meeting with OMB on costs/impracticability of the rule Coordination with ad hoc industry group with similar concerns Looking Ahead: Back to the D.C. Circuit Industry and NGO challenged the rule Will EPA issue substantive guidance? 18

EPA Financial Assurance Rulemaking Past EPA targets the hardrock mining industry (2009) NMA launches a robust advocacy strategy opposing EPA s decision that delays the rulemaking for 7 years House passed legislation (H.R. 2279) limiting EPA s authority (2014); Appropriations process also targeted to prohibit EPA from working on the rule Key support obtained from SBA, WGA, 11 industry trade associations 2015 Earthjustice lawsuit seeks to force a final rule by Jan. 1, 2016; NMA filed a motion to intervene opposing this petition EPA files declaration with projected timeframes: (1) identification of rule structure options by end of Apr. 2014; (2) completion of small business advocacy review panel process by Dec. 2015; proposed rule Aug. 2016; final rule Aug. 2019 D.C. Circuit hears oral argument and a week later orders EPA to file a new rulemaking schedule without ruling on the lawsuit New opportunities for Congressional action 19

Waters of the United States (WOTUS) May 2015: EPA and the Army Corps released a pre-publication version of their final rule defining the scope of federal jurisdiction under the Clean Water Act (CWA). Applies to all CWA programs, including the Sec. 402 and Sec. 404 permitting programs; Sec. 311 spill prevention program; and Sec. 401 state certification process. While the Agencies made certain positive changes in response to public comments, several provisions in the rule will likely lead to increased regulatory uncertainty and expansive permitting requirements with minimal environmental gains. In particular, the rule s application of the unclear concept of ordinary high water mark may lead to erosional features in the arid West being inappropriately deemed jurisdictional tributaries. Legislation to address the proposed rule has been introduced in both the House and Senate, including S.1140 (Federal Water Quality Protection Act) and H.R.1732 (Regulatory Integrity Protection Act passed May 12 th ). 20

Expanded Use of EPA s 404(c) Veto Authority Retroactive Veto EPA Action: Vetoed surface coal mine permit 3 years after it was issued by Army Corps. Veto authority eventually upheld by D.C. Court of Appeals, review denied by U.S. Supreme Court. Arbitrary and capricious question pending appeal. Implications: Puts all 404 permits at risk at ongoing operations EPA can at any time reevaluate and veto existing permits. NMA Engagement Filed briefs at every stage of veto authority litigation Built support for multiple state and industry amicus briefs Continue to actively support legislation aimed at limiting EPA s 404 authority Preemptive Veto EPA Action: Initiated a veto prior to the filing of any actual permit application for a copper and gold mine based on fictitious mine scenario. Litigation filed veto authority suit ruled premature, FACA suit ongoing, preliminary injunction against 404(c) process granted Implications: EPA could bypass permitting process and states and engage in watershed and land use planning; Substantial increased risk to capital investment NMA Engagement Filed multiple sets of comments on and objected to watershed assessment and proposed 404(c) determination Filed amicus brief in veto authority litigation Continue to actively support legislation aimed at limiting EPA s 404 authority 21

Ozone NAAQS ID MT MN MI WY NV 66 ppb - 70 ppb > 70 ppb UT AZ CO NM EPA proposed rule to lower the current Ozone standard from 75 ppb to 65-70 ppb; final rule expected October 2015 New permits or permit revisions may be required and some projects may trigger expensive control technology NMA comments focus on the impact of the proposed rule on mining emission sources and naturally occurring western background levels; NMA also collaborated with a broad-based business coalition to advance legislation to retain current level 22

EPA GHG Regulations Jan 2014 New Source Proposed June 2014 Existing Source Modified/ Reconstructed Proposed Jan (Aug.) 2015 New Source Final June (Aug.) 2016 State Plans Required May 2014 New Source Comments Final Oct 2014 Existing Source Comments Due June (Aug.) 2015 Existing Source Modified/ Reconstructed Final 23

The Clean Power Plan Targets Firm; Building Blocks Weak Energy Efficiency: 1.5% yr. Renewable & Nuclear Implausible Assumptions Low cost EE measures already in place; additional will be more difficult and expensive Renewable expansion exceeds all government projections and economic renewable potential of most states No technical basis for running at 70% CF; exceeds historic avg.; infrastructure lags; additional pressure on NG prices Least efficient coal plants already retired; remaining plants operating at optimal efficiency; past rules will make plants less efficient due to retrofits. 24

EPA Power Plant Rules: Strategy Overview States Identify and mobilize early mover states to declare they cannot/will not implement CPP: Plan is unlawful and technically, structurally, economically implausible State Leaders: Governors, Attorneys General and state legislatures Public Utility Commissioners Congressional Oversight hearings: Key themes energy prices; grid reliability; state control; implausible assumptions; and state options (SIP or FIP) Legislation: Free standing; appropriation riders; agency budgets Media Earned and paid media in selected early mover states to support state political leadership opposition (maximize use of third parties in message delivery) Legal/Technical Prepare technical and legal analysis to support strategy/messages and increase probability of litigation success 25

Governor Opposition to the Clean Power Plan Withdraw (15) Oppose (5) Fix (13) Support (17) 26

Endangered Species Act: Sage Grouse DOI Action BLM and USFS published final land use plans designed to conserve sage grouse, emphasizing Priority Habitat Management Areas identified by FWS Land use plans are intended to preclude a final listing for the Sage Grouse, due by Sep. 30, 2015 under court order There are 15 plans in total, and each is different, though most include requirements to minimize surface disturbance/no surface occupancy, withdrawal of 9 million acres from new mining claims in core sage grouse areas, and varying levels of restriction and prohibition on leasable minerals Congressional Oversight hearings: State conservation as a more effective method of conserving species without harming industry Legislation: S. 1066 (Gardner): Allow states to develop plans and require DOI deference to plans Rider: Prohibit the use of funds for listing or withdrawals associated with sage grouse conservation 27

Proposed Sage Grouse Habitat and High Priority Sage Grouse Strongholds 28

Challenge to Interior s Withdrawal Authority DOI withdrew more than one million acres in AZ from all new mining claims Failed in the Environmental Impact Statement to show withdrawal is justified by potential risks to resources NMA Filed challenge to withdrawal District Court upheld constitutionality of withdrawal provision in March 2013 NMA appealed the decision to the 9 th Circuit Potential withdrawals of sage grouse habitat make this case even more important A victory will prevent future Federal Land Policy and Management Act withdrawals that exceed 5000 acres 29

NMA s Platforms Reaching the Public & Industry

NMA Platforms www.coresafety.org www.mineralsmakelife.org www.countoncoal.org www.minethevote.com 31

Mining Mobile Smartphone App: Recruit & Mobilize Faster Quick access to NMA advocacy programs, news, social media feeds and fact sheets Rapid deployment of action alerts Recruit new advocates to network Feed and care of installed base of supporters 32

September 26 28, 2016 Las Vegas, Nevada USA SPONSORED B Y THE LARGEST MINING SHOW ON AND UNDER EARTH www.minexpo.com EXHIBITOR PROSPECTUS