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Critical Mineral Developments Continue in the Waning Days of 2020 — and Into the Early Days of the New Year

If you’ve read our Year in Review post last month, you know 2020 was a busy year on the mineral resource policy front — so much so that even the last few days of December had several important developments.

Most notably, Congress passed the Consolidated Appropriations Act of 2021.

While most of the media’s attention was focused on the COVID relief provisions of the package, the behemoth 5,000+ page bill also included the Energy Act of 2020, which is not only the first comprehensive modernization of the nation’s energy policies in over a decade, but also contains a number of critical minerals provisions.

Among them — included under Title VII are:

Section 7001. Rare earth elements, which, according to the Senate Committee on Energy and Natural Resources summary, “requires the Secretary of Energy to carry out an R&D program to develop advanced separation technologies for the extraction and recovery of rare earth elements (REEs) and other critical materials from coal and coal byproducts, as well as mitigate any potential environmental and public health impacts of such activities. It also directs the Secretary of Energy to provide a report to Congress that evaluates the development of advanced separation technologies for the extraction and recovery of REEs and other critical materials from coal and coal byproducts.”

Section 7002. Mineral security, “promotes a secure and robust critical minerals supply chain by (1) requiring the executive branch to designate a list of critical minerals and update that list every three years; (2) requiring USGS to conduct domestic resource assessments of critical minerals and to make that information publicly available; (3) requiring the Department of the Interior and Department of Agriculture to publish critical mineral Federal Register notices within 45 days of being finalized; (4) directing the Secretary of Energy to conduct an RDD&CA program on the development of alternatives to, recycling of, and efficient production and use of critical materials (which may be carried out by DOE’s Critical Materials Energy Innovation Hub); (5) directing the Secretary of Energy and the Director of the Energy Information Administration to develop analytical and forecasting tools to evaluate critical minerals markets; (6) requiring the Secretary of Labor and the Director of the National Science Foundation to develop curriculum and a program for institutions of higher education to build a strong critical minerals workforce; and (7) reauthorizing the National Geological and Geophysical Data Preservation Program through fiscal year 2029.”

Section 7003. Monitoring mineral investments under Belt and Road Initiative of People’s Republic of China, “requires the Director of National Intelligence to study and submit to Congress a report of investments in minerals by the People’s Republic of China. It further directs the Director to make recommendations to the Secretary of the Interior when designating minerals as critical per the designation criteria in Section 7002.”

The President signed the Consolidated Appropriations Act of 2021, and with that the Energy Act of 2020, into law on December 30, 2020.

More critical mineral-related developments took place over the following days in the context of the National Defense Authorization Act of 2021, the conference report of which also included several critical minerals provisions. President Donald Trump vetoed the defense bill on December 23, 2021, but, in a first for the Trump presidency, Congress overrode his veto on December 28, 2020 in the U.S. House of Representatives and the U.S. Senate on January 1, 2021, respectively.

Among other provisions, the now-enacted NDAA mandates that – within five years – most Pentagon systems use rare earth that have been mined and refined outside of China. It further requires the federal government to give preference to U.S. suppliers of these materials in government acquisitions.

With these provisions enshrined into federal law, the Defense Department’s recent efforts to enter into contracts and agreements with several rare earth element producers will likely continue in 2021 and beyond.

Overall, it remains to be seen what the coming months will bring once the incoming Biden Administration assumes office later this month. We can reasonably expect some changes in emphasis and priorities when it comes to mineral resource policy, such as a greater emphasis on leveraging partnerships with allied nations, as well as recycling and possibly reclamation of new minerals from old mine tailings.

The concept of a circular economy — a system which thrives on sustainability and focuses mainly on refining design production and recycling to ensure that little to no waste results — will likely gain traction.

What will not change, as we have previously stated, is the urgency with which we need to treat the United States’ critical minerals challenge. With that goal in mind, it is encouraging to see that — even in the waning days of an arguably crazy year — stakeholders enacted several meaningful changes towards an “all-of-the-above” critical minerals policy.