This Permit Reform Already Works. Why Aren't More Mine Permit Applicants Using It?

Abstract

In January 2021, mining was added as a sector eligible for coverage under the FAST-41 permitting improvement program. The FAST-41 program was originally created in 2015, when Congress passed the Fixing America’s Surface Transportation (FAST) Act. Buried within the expanse of the FAST Act was the FAST-41 program, a pilot project designed to expedite federal permitting for complex infrastructure projects without compromising environmental standards or restricting public participation. FAST-41 seeks to achieve faster permitting timeframes through improved inter-agency coordination, shared data management, strategic permit sequencing that facilitates concurrent review, enhanced communication with the project sponsor, implementation of permitting best practices, and greater accountability. Its procedures also provide greater transparency, so that the permitting timeline is predictable for the project proponent. Although mining projects have been eligible for this program for almost two years, there are currently no mining projects on the Permitting Dashboard. This article explores whether the FAST-41 provisions are likely to expedite mine permitting. Section I explains the structural provisions of the FAST-41 program. Section II describes performance data from FAST-41 projects completed during the past five years and concludes that the Act’s procedures promote efficiency, transparency, and predictability. Section III explores common causes of delay in the permitting process, with a focus on issues that affect mine permit processing. Section IV focuses on agency capacity challenges at the BLM. Section V concludes that the FAST-41 process is well-situated to address common causes of delay in the mine permitting process without compromising public engagement, analytical rigor, or environmental protections.

Keywords: NEPA, permit reform, critical minerals, mining, permitting