Tag Archives: environment

The Supreme Court is going to do what, exactly? Another update on MCRC v. EPA

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It turns out Marquette County Road Commission v. EPA, the mining haul route case I’ve followed for a few years, is not dead yet. Back in June, the Sixth Circuit denied a petition for an en banc hearing. That seemed the end of it. Now, a TV6 report says that the Pacific Legal Foundation’s Mark Miller is talking — once again — about Supreme Court review.

A Petition for a Writ of Certiorari was filed on October 25th. A response is due on November 28th.*

Maybe Miller knows something about the composition of the court post-Kavanaugh I don’t. The Sixth Circuit firmly rejected his argument — that the EPA’s objections to the Marquette County Road Commission’s plan for County Road 595 were tantamount to a “veto.” Now, he believes

the U.S. Supreme Court will read our petition, review our case on the merits, ultimately, and agree with us that the road commission’s plan as approved by the state should at least be considered by a judge as compared to the EPAs decision to reject that plan.

If I follow what Miller’s saying here, the Supreme Court is going to review a case that was denied en banc hearing at the Sixth Circuit, and then recommend that a judge — what judge? an administrative law judge? in what court?  — consider the Road Commission’s plan and weigh it against the objections of the EPA. I think I got that right.

Jim Iwanicki, Marquette County Road Commissioner, has another set of expectations:

the purpose of the lawsuit is to have the U.S. Supreme Court review the decision of the Michigan Appeals Court to side with the EPA and to get an explanation as to why the the EPA turned down the permit in the first place….Iwanicki says he wants answers on the EPA’s decision. He says the road commission was not given a solid answer on why the EPA ruled against the road’s construction.

The construction of 595 would have gone through undeveloped wetlands.

“There is no mechanism right now to build 595,” said Iwanicki. “Right now it is more of the issue of, were we treated fairly and was the permit looked at properly. If not then those people that didn’t look at it properly should be addressed and called forward on the carpet.”

I wonder if these are actual expectations, or if Miller and Iwaniki — and StandU.P., the dark money 501c4 behind the push for CR 595 — are rabble rousing.

*Update: on November 21st, Solicitor General Noel Francisco requested, and the Supreme Court granted, an extension to December 28th to file a response. The reason given: “the heavy press of earlier assigned cases to the attorneys handling this matter.”

Second Update, 4 December: Two amicus curiae briefs were filed on November 28th in support of the Marquette County Road Commission by the Southeastern Legal Foundation and the Mackinac Center for Public Policy and the County Road Association of Michigan and Stand U.P., the 501c4 dark money organization promoting CR595. Both briefs take their cue from the argument that failed in the Sixth Circuit, asserting that the question before the court involves an “arbitrary and capricious EPA veto.”

Update, 19 December. The Department of Justice has requested a second extension, until January 28, 2019, to file a response. The reason given is, again, “because the attorneys with principal responsibility for preparation of the government’s response have been heavily engaged with the press of previously assigned matters with proximate due dates.” The request goes on to note that counsel for the Marquette County Road Commission does not oppose a second extension. So we can’t expect anything like a resolution in this case until the New Year.

Update, 28 January 2019. The Environmental Protection Agency responded today to the Road Commission’s petition for Supreme Court review.  As expected, the reply focuses on the fact the Road Commission “voluntarily discontinued the permitting process” back in 2015, then turned around and brought suit, saying the EPA had acted in an arbitrary and capricious way.

The EPA replies that this is a mess of the Road Commission’s own making.

To be sure, EPA’s objections may have had the practical effect of making the overall Section 404 permitting process (if petitioner had continued to pursue it) more protracted than it otherwise would have been…. At most, however, EPA’s objections required petitioner to continue with a permitting process that petitioner was obligated to invoke regardless of EPA’s objections—a requirement “different in kind and legal effect from the burdens attending what heretofore has been considered to be final agency action.”

The Road Commission has repeatedly failed to convince the lower courts of its central contention, that EPA objections amounted to a veto.  Instead, when the Michigan Department of Environmental Quality declined in July of 2015 to grant or deny the Road Commission’s application, permitting authority for CR 595 transferred to the Army Corps of Engineers. The Road Commission could have simply continued the permitting process.  Why didn’t they? Instead, they’ve ended up here, at the door of the Supreme Court, looking for relief from — what, exactly? their own impatience?

Update, 11 February 2019. Attorneys for the Marquette County Road Commission have filed a Reply Brief. In a more sophisticated version of the veto argument rejected by the Sixth Circuit, they accuse the EPA of playing “a semantic shell game” around the issue of final agency action. They still use the word “veto” throughout the brief, and argue that EPA has made an important concession in its 28 January filing:

they now concede one crucial point that below they denied: the Corps required the Road Commission to submit a new Section 404 CWA permit application after the EPA vetoed the permit the State of Michigan stood ready to issue. [Here they cite a sentence from the EPA brief, which states:] “the Corps asked petitioner to submit a ‘new’ application.” That factual concession amounts to an implicit legal concession that, in regards to the State of Michigan Department of Environmental Quality (MDEQ) Section 404 CWA permit application process, the EPA’s work was consummated… Moreover, it recognizes that there were consequences to the Road Commission that flowed from that consummation of EPA’s work in regards to that vetoed state permit: now, the Road Commission had to take action in order to obtain a Section 404 CWA permit—it had to submit a new permit application to the Corps.

Who, exactly, is playing shell games? This argument appears to be little more than sophistry. When the EPA brief uses the word “new” at the indicated place (page 11), the brief is quoting the Marquette County Road Commission’s own petition. That is why the EPA places “new” inside quotation marks. EPA is, moreover, quoting Marquette County Road Commission in order to refute the assertion that this was anything but the continuation of an ongoing review process. To quote your opponent is not to concede his point.

The Reply Brief also cites the recent Weyerhaeuser decision over enforcement of the Endangered Species Act to argue that there is “a basic presumption of judicial review for any party suffering legal wrong because of agency action.” This would seem to create the burden of proving that the Road Commission suffered legal wrong — which would seem to bring us full circle: the Road Commission only suffered legal wrong if, in fact, the EPA’s objections constituted a veto.

Round and round we go. Now it’s up to the Roberts court to sort this out, or just turn it down. I still think the latter is the most likely outcome.

Update, 19 February 2019. A 13 February entry in the docket shows the case has been distributed for conference on the first of March. It is one of ten Sixth Circuit cases up for consideration.

You’ll find my other posts on MCRC v. EPA here. 

A Highland Map of Lake Superior Mining

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It would be instructive to lay this map, published today by Highland Copper, over the map of Mines, Mineral Exploration, and Mineral Leasing around Lake Superior published in 2013 by the Great Lakes Indian Fish and Wildlife Commission.

Having acquired all of Rio Tinto’s exploration properties in Michigan’s Upper Peninsula, Highland now dominates sulfide-mining exploration in the UP.

A multi-billion dollar mining behemoth like Rio Tinto could arguably have left these copper, zinc and gold sites idle for a rainy day. The same can’t be said about a junior like Highland. With market capitalization of $62 million, the company paid $2 million at closing, leaving its subsidiary on the hook for an additional $16 million (in the form of a non-interest bearing promissory note), to be paid in regular installments.

According to company’s own press release, “the payments…will be accelerated if Highland publicly releases a feasibility study covering any portion of the UPX properties.” So once exploration begins with test drilling in 2018, we might see efforts to expedite permitting and development for these sites.

If UPX succeeds in taking even a fraction of these sulfide-mineral deposits from exploration to development, and if these new mines are developed under the pressure of an accelerated payment schedule, the risk to the Lake Superior watershed will be significantly heightened.

Three Questions for the Michigan DEQ on the Back Forty Project

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Earlier this month, the Michigan Department of Environmental Quality announced its intention to permit the Back Forty Project, an open-pit gold and zinc sulfide ore mine that Aquila Resources, a Canadian company, plans to develop near the headwaters of the Menominee River. In response to the MDEQ’s request for public comment by November 3rd, I’ve submitted these three questions. I’m posting them here so that others might consider them in the run up to the public meeting with the MDEQ in Stephenson, Michigan on October 6th.

  1. In determining that the Back Forty Project application meets the requirements for approval under Part 632, did MDEQ take into account the cumulative effects of sulfide mining throughout the Lake Superior watershed? We know that the Back Forty project poses a significant risk to the Menominee River all by itself. With the mine in close proximity to the river, a flood, berm collapse, subsidence or a slide could destroy the Menominee River; to answer these serious concerns by asking the company to add a “synthetic, manmade liner under their waste/tailing rock facility,” as the DEQ has proposed, is to trivialize them. Other development that the mine will inevitably bring, including haul routes, power lines, lights, fueling stations, exhaust and machine noise, will leave a large industrial footprint and disturb the Menominee River and its environs in countless ways. At the same time, this mine will heighten the risk, in the long term, of large-scale environmental destruction posed by the resurgence of sulfide mining not just in Michigan’s Upper Peninsula, but in Minnesota and Canada as well — all around the lake and throughout the Lake Superior watershed. Has the DEQ completed or participated with neighboring state agencies and tribal authorities in a scientific study of the cumulative impacts of sulfide mining around Lake Superior? Has the DEQ issued guidance on how cumulative environmental effects should factor into its decision-making process for permitting new mines in Michigan?

  2. Has MDEQ made any determination about the human rights implications of its decision to allow the Back Forty project to go forward? Human rights are not outside the DEQ’s bailiwick, no matter how hard it may try to exempt itself. Witness Flint. In the present case, the DEQ’s oversight is inextricably bound up with the state’s obligation to protect human rights abuses by third parties. Aquila’s Back Forty project is sure to disturb, and likely to desecrate, lands traditionally belonging to the Menominee and still held sacred by them; and making provisions for archaeological recovery and preservation of mounds and other sacred sites does not adequately address the basic human rights issues involved here. The headwaters of the Menominee River are central to the tribe’s creation story, marking the place where the Menominee people originated. Their very name derives from manoomin, or wild rice, which will not survive changes in sulfate levels or degradation of overall water quality. As tribal member Guy Reiter has said, “It’s no different than if an open-pit sulfide mine was put in Bethlehem for the Christians.” Seen from this perspective, the Back Forty is not only an affront to Menominee history; it also puts the cultural survival of the Menominee people at risk. How will the DEQ factor such human rights considerations into its decision-making process?

  3. What has the DEQ done to restore trust in its authority, and reassure the Menominee and people living downstream from the Back Forty project in Michigan and Wisconsin that it will exercise appropriate care? The Flint water crisis cast a long shadow, and reinforced the perception that “politics and poverty are big factors” in DEQ decision making. “The same attitude of disregard for citizens and the environment has repeated itself in DEQ decisions across our state for well over a decade,” said Marquette attorney Michelle Halley after news of the Flint water crisis broke; controversy over the renewed Groundwater Discharge Permit issued by MDEQ at Eagle Mine and legitimate concerns about lax oversight at Eagle East help make her case. Like all government agencies, the Michigan DEQ should operate in sunlight. Already, however, troubling questions have been raised about the transparency of the Back Forty permitting process. For example, Al Gedicks, Executive Secretary of the Wisconsin Resources Protection Council, asks why the DEQ appears to be in a “rush” to grant the Back Forty permit. So as things now stand, the DEQ enjoys de jure authority in Michigan under Part 632, but it is unclear whether the DEQ still enjoys de facto authority, which could only derive from demonstrations of regulatory competence. How does MDEQ intend to quell public concern that it is compromised or incompetent, and reassure the public that it is a responsible steward?

The Political Project Continues, Even if the Case is Dismissed

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Earlier this week, the EPA filed its Brief in Opposition to the Motion to Alter or Amend Judgment in Marquette County Road Commission v. EPA, requesting that Judge Robert Holmes Bell stick with his dismissal of the case. Just a day later, State Senator Tom Casperson, chief political architect of the MCRC lawsuit, was defeated by Jack Bergman in his primary bid to run against Lon Johnson for Dan Benishek’s seat in the U.S. House of Representatives.

Prospects for the haul road are dimmer than ever, reduced to a fine point of administrative law — namely, whether EPA’s objections constitute “final agency action” or are merely “an interlocutory step” that continues the administrative process. (If the latter, the case remains dismissed.) In the likely event of the lawsuit’s failure, Stand UP, the dark money organization funding it, might fold or it might try to convert itself to other political purposes. As a 501(c)(4) it can legally do that, as long as it continues to satisfy the vague requirements of a “social welfare” organization.

Casperson still has two years left to serve as a Michigan State Senator; and while he was unable to translate gripes about federal overreach into victory on a bigger political stage (to hear him tell it, people below the Mackinac Bridge just don’t get it), Bergman, the Republican candidate, seems just as hostile to effective environmental regulation. He is, for instance, an advocate of the REINS Act (S. 226 and H.R. 427), a cynically designed piece of polluter-friendly legislation that aims to undermine rules like the Clean Water Act and allow politicians and lobbyists to second-guess science. So it’s important to remember that the Road Commission’s lawsuit over the haul road has always been bound up with a larger, coordinated political project, and that project will continue well after the judge considers the last brief in this case.

Neither Here Nor There

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I set out for Lake Superior on Saturday, with the intention of spending the better part of this week meeting and interviewing people for a documentary project I’m developing. The day got off to a rocky start: at 4:30AM, United Airlines called and emailed to tell me that my 8AM flight to Chicago would be delayed. I would miss my connection to Hancock unless I hustled and got myself to Chicago on an earlier flight – the 7AM — which I did. I arrived with plenty of time to spare, and was at Gate F1A and ready to board the Hancock flight when my phone buzzed. Flights to Hancock were cancelled, due to a blizzard in the Keweenaw — lake effect snow.

The woman at the customer service counter had clearly had a rough morning. Her allergies were making her miserable: all the dust from the heater, she said; she had just turned it on for the first time this winter. She did her best, but when all was said and done my options were limited to waiting out the storm in Chicago (which probably meant the dreary and overpriced airport hotel) or making a dash to Detroit, switching from United to Delta (I never found out exactly how this was to be accomplished, or what it would cost), and trying to catch the evening flight to Marquette. Both sounded expensive, exhausting and damaging to the soul. I told myself that I could probably accomplish everything I’d set out to do on this trip the next time around. So I decided to call it a day, turn around and head back to New York.

The woman behind the counter seemed relieved, and marked my ticket “Carrie Over Carrie Back” [sic]. I moved to a new gate to wait for the next New York flight, and ate an airport sandwich that registered on the receipt as “CEB Tur Goud.” That’s about how it tasted. carrieovercarrie

Now I am here when I expected to be there, here in New York with a strange sense of being absent from the UP. This confusion of presence and absence, here and not there, is not quite the same as missing a place; it’s not like nostalgia and doesn’t involve longing to be elsewhere. It’s more like misplacing myself – a sense of dislocation. I can’t shake the feeling that I shouldn’t be here: none of my planning included that possibility. Plans commit us to a time and place. They tell us where we belong, and when. They are ways of making ourselves belong. I simply don’t belong here, at least not until Thursday, when I’d planned to come back. Until then, I am neither here nor there.

I hit on that familiar expression yesterday. It’s a colloquial way of talking about irrelevance, things that are of no account, and though I have plenty to keep me busy until Thursday, I am also seriously exploring this feeling that I am of no account, and will be for a couple days to come.

The expression neither here nor there is, I now understand, a good place to start reflecting on our plans and purposes and how they give us a sense of belonging in the world. It goes way back, and was popular and well-worn even before Shakespeare used it in Othello. That much is clear from the earliest instance cited by the OED: Arthur Golding’s 1583 translation of The Sermons of J. Calvin on Deuteronomie.

This is Golding’s translation of Calvin’s 92nd sermon, on “the law of the tithe” as it’s presented in Deuteronomy 14.24-29 — a passage which is itself already about being displaced and absent, about being “far” from the place where “God shall choose to set his name” (as the King James version has it). Tithes of money are offerings “if the way be too long for thee…or if the place be too far from thee.” Seeing that God has dealt so generously with us, Calvin writes,

what an unthankfulnesse is it for me to despise him that sheweth himself so liberall towardes me? True it is that our so dooing is neither here nor there (as they say,) in respect of God: the seruice that we do him doth neither amend him nor appaire him: but he giueth vs the poor among vs, to bee succored at our handes, to the ende that none of vs should so glutte himself by cramming his owne bellie, as to despise others that are in necessitie, but that we shoulde bee well advised to make an offering vnto God of the thinges that he hath put into our handes, and that the same might become holy by that meanes. Not that wee should paye it as a ransoume to God; but that the acknowledgement which we make vnto him in having compassion upon our poore needy brethren, is as though our Lord should allow of our eating and drinking, saying thus: Now is all lawful for you, I lyke well of it, I giue it vnto you; and that is because ye honor me in dooing almesdeedes to such as are in pouertie.

It’s a wonderful and complicated passage about making things “holy” and honoring the bounty and plenty of the world by sharing it and making an offering of it – the sort of thing we’d expect to find Lewis Hyde writing about in The Gift. Louis CK, a very different kind of Louis, makes roughly the same point Calvin makes here in a profanity-laced routine called “If God Came Back.” It all starts with the question why Christians don’t seem to believe they have to look after the creation:


This morning, sitting here in New York, and feeling as if I belong elsewhere, it seems downright uncanny that I was thinking about precisely this routine just minutes before my flight to Hancock was cancelled on Saturday. An exhibit called “Ice: Portraits of Vanishing Glaciers” – currently running at Chicago O’Hare in Terminal 2 – brought it to mind. Huge photographs of glaciers by James Balog had been hung on the wall and a sign instructed travelers to “teach your children about landscapes their children will never know.” That sentence alone left me aghast — I had plenty of time to contemplate it, sitting there at the gate — and it made me wonder what purpose could justify the things we do every day, all the running back and forth, the going here and there. We hardly ever give it a second thought.

In Michigan, Mining Makes An Asset of A Community

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John Kivela just can’t stop thanking people, it appears. Last week, at a ceremony held under a tent at Humboldt Mill to mark the transfer of ownership of the Eagle Mine from Rio Tinto to Lundin Mining, State Representative Kivela was effusive in his praise of officials from the two multinational mining companies and, above all, grateful. According to a report in the Mining Journal, Kivela gave a shoutout to outgoing Rio Tinto Eagle Mine President Adam Burley (who will be moving to Rio Tinto’s offices in Salt Lake City, Utah, which is now North American HQ for one of the biggest mine disasters in recent history — the slide at Bingham Canyon); and then, it seemed, Kivela was unable to hold back any longer. He spoke from the heart:

Adam and the folks from Rio, thank you for your commitment to the community. Thanks for providing opportunities for Michiganders to employ themselves. Thanks for running a safe, clean, environmentally sound operation. That means a lot to the folks here. To our good friends from Canada, welcome to the community. Thank you for your investment. Thank you for taking a chance in Michigan and in the United States in this operation and I wish you all the best.

It was just folks gathered under that tent at Humboldt Mill — “folks” from Rio Tinto, “folks here,” who live in close proximity to the Eagle Mine operation, all just folks who belong to the same “community” — and how gracious of Kivela to extend a warm welcome on behalf of that community to these new arrivals, strangers to the Upper Peninsula but already “good friends,” no, “our” good friends, from Canada! Kivela must have generated enough warm friendly feeling under that tent at the Humboldt Mill — a brownfield site from the last round of mining — that everyone could forget, just for that one sweet moment, that most of what Kivela was saying was just obsequious, ingratiating nonsense.

The ceremony was held at the mill, not at the mine, and for obvious reasons: the Eagle mine is built on ground sacred to the Ojibwe people and construction of the mine is proceeding apace without their full, prior and informed consent (as required by the UN Declaration on the Rights of Indigenous People). Many in the community are glad to see Rio Tinto go but are not ready to welcome Lundin, and Lundin has done very little to reassure them that things are going to be different at Eagle. There are folks within the community Kivela represents who don’t share Kivela’s confidence that Rio Tinto has run “a safe, clean, environmentally sound operation.” Charges of corruption and incompetence hang over the entire permitting and environmental impact statement process around Eagle Mine. And, according to a recent report, the investment made first by Rio Tinto and now, Lundin Mining is likely to have a distorting effect on the economy of the Upper Peninsula, and will not contribute to the area’s long-term prosperity.

As for Rio Tinto’s commitment: it lasted only as long as Eagle strategically suited the global mining giant. Eagle rapidly went from being a “commitment” to a “non-core asset”; and that’s where Lundin came in: they saw a valuable asset where Rio Tinto no longer did. “Adding a mine like this to our asset base is really formative for our future,” said Lundin President and CEO Paul Conibear at the ceremony. “We’ve been looking very actively for two years now to rejuvenate our asset base to bring on a high-quality new base metals mine.” Conibear could be Canada’s answer to Ponce de Leon, with all his talk about searching far and wide for sources of rejuvenation. Eagle Mine may not be the Fountain of Youth, but its mineral riches will be “formative for the future” of Lundin’s “asset base.”

That is why Lundin has made its investment: it really has very little to do with Michigan, or the community, or friends or folks at all. The Eagle Mine is an asset. The land and the water and the trees, the minerals in the earth, the friends and communities around the mine, all the things that people in the Upper Peninsula know and love, have already been set down on a balance sheet alongside Lundin’s other assets. (It’s interesting, by the way, that on this occasion, as on others, Conibear talked about Lundin’s mines in “Portugal, Sweden and Spain” and neglected to mention the company’s substantial share in the controversial Tenke Fungurume Mine, where Conibear served as Chief Operating Officer, then President and Director before he helped bring about the merger of Tenke and Lundin Mining.)

The community of friends gathered under the tent at Humboldt Mill doesn’t even appear to have entered into Conibear’s thoughts, or at least he does not mention them in his remarks as reported by the local press. Instead, Lundin’s CEO told a story of courage in the face of doubt, and of making tough choices: he acquired Eagle Mine “when metals prices are at a 5 year low” and when shareholders were asking whether this is the “right time.” These are the things that are most on Conibear’s mind: metal prices and market timing. He needs to placate skeptical shareholders, or prove them shortsighted. He seems confident that he will, and eventually they will thank him for adding this sulfide mining operation on the shores of Lake Superior to Lundin’s asset base.

People living around the mine, and all around Lake Superior, may not share their gratitude.

The Big Slide at Bingham Canyon

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Bingham Canyon slide

“This is something that we had anticipated,” said Rio Tinto-Kennecott spokesman Kyle Bennett, when asked about the huge landslide that shut down the Bingham Canyon Mine last week.

If we are to believe the Rio Tinto press release, it was nobody’s doing. The Canyon Mine simply “experienced a slide along a geotechnical fault line.” The mining company saw this trouble coming since February, we’re told, and once the movement “accelerated…pre-emptive measures were taken.”

Still, the enormity of the slide took Ted Himebaugh, Kennecott’s general manager of operation readiness, by surprise: he told the Deseret News that “he had seen nothing like it in his 36 years with the company.” A black swan event, then — a wonder. Who could have foreseen this?

It’s telling and a little disturbing that the statements the Rio Tinto issued after this disaster (and disaster is the right word here) make no mention of what was going on prior to the slide at Bingham Canyon, which is — it’s hard to believe this needs saying — a whole lot of mining and a whole lot of earth disturbing in close proximity to a geotechnical fault line. In fact, the Bingham Canyon operation is the world’s largest man-made excavation.

Rio Tinto has been very careful to sidestep any acknowledgement of its role, any connection of the mining operation with the slide, any accountability or responsibility for the slide: the Canyon experienced something; Rio Tinto watched. It’s as if some greater powers were at work in the Canyon — as if the earth in Bingham Canyon moved entirely on its own. The company of course moved everyone to safety, and now plans to get the mine up and running again, to “provide not only the jobs for the people but money to the state of Utah and economy.” The only thing that might hold things up is if they can’t resume operations safely: “we will not take a risk.”

I suppose that’s meant to be reassuring. It makes me shudder. What’s missing here is any deeper appreciation of just how risky these industrial mining operations always already are, even when things are running perfectly and according to plan. People concerned about the dangers of subsidence posed by the Eagle Mine operation on the Yellow Dog Watershed (another Rio Tinto /Kennecott project, which I’ve blogged about before — here and here, for instance) might want to have a good look at this Bingham Canyon slide and think about the risks they’re about to run. But it goes beyond — way beyond — the very serious risks of spawning streams collapsing, acid mine drainage, or other kinds of environmental degradation. Industrial mining operations put everything at risk: peace, agriculture, and social stability in many parts of the world, environmental sustainability everywhere mining is done.

That doesn’t mean mining shouldn’t be done at all. It means that when it is done, and done at this scale, people, communities, companies and investors need to understand fully how mining will affect them, what it will require of them, what it will involve, what it will bring and what it will leave behind. Company- and industry-sponsored community outreach and corporate responsibility efforts are insufficient; they are created to conceal the real risks and the true costs of mining.

“Mining is the material basis for life, making it difficult to exaggerate its significance. George Orwell called it part of the ‘metabolism’ of civilization,” Shefa Siegel writes; and yet “the ethics of mining are nowhere to be found.” His essay is a must-read, especially this week, in the wake of Bingham Canyon and the run up to the Rio Tinto Annual General Meeting.

One outcome of mining’s omission from environmental and development ethics is that as other disciplines and sectors gradually integrated concerns about sustainability into their knowledge communities, mining engineering, mineral economics and processing, geochemistry, and other sub-disciplines associated with mining have remained static. As a result, there is less experience with the study and practice of sustainable mining than, say, forestry, agronomy, or soil ecology. There is no mining equivalent, for example, of the Yale School of Forestry & Environmental Studies. And while there is much anxiety about the failure to enact the ethics of climate change or environmental health, mining does not even have an ethical roadmap that we do not follow. With climate change there is broad agreement that exceeding a 2 degree Celsius rise in temperature breaks the planet. Pollution experts know to a microgram the tolerable level of exposure to mercury, lead, and arsenic. But what is expected of a mine?

Only in the last decade has vocal public discourse about global resource policy emerged. The effort to build an ethics of sustainable extraction is structured around two principal concepts: transparency and corporate social responsibility. While transparency initiatives concentrate on exposing revenue transactions between the private and public sectors in extractive industry projects, corporate responsibility efforts focus on the improvement of relations between companies and communities. The transparency movement has sparked advocacy and legislative activity in the United States, United Kingdom, and Canada—the host markets for much of the world’s trading of mining shares. Meanwhile, companies are dedicating more staff and resources to ensure the benefits of mine development reach communities in the form of improved services, infrastructure, and education. These twin concepts are intended to transform resource extraction from a winner-takes-all model to one in which all parties benefit.

The problem is that neither corporate responsibility nor transparency speaks to the reconciliation of extraction with ecological limits, or to the fact that we have entered a period of resource scarcity that necessitates nothing short of monopolization to make the business of industrial mining profitable. This order of magnitude leaves no room for multiple uses of land and resources, especially the smallholder farming and mining economies upon which people depend in mineralized places. Endemic poverty, conflict, and ecological collapse in these regions are rooted in the inequitable allocation of resources. In such cases, win-win solutions are an illusion.

I’ll be live-tweeting the Rio Tinto meeting on Thursday.

All Clear for the Mining Boom in Michigan’s UP, Unclear What That Portends

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Just before the holidays I wrote a short post about the one-two punch that Michigan legislators delivered during the 2012 lame duck session. They rushed through legislation to make Michigan a “right to work” state despite widespread protests and they passed Emergency Manager Legislation in defiance of voters.

Most of the news coverage of these bills focused on the action in Lansing and effects this legislation might have in the Detroit auto industry. I wondered aloud (or at least on Twitter) what implications these bills might carry for towns and working people in the Upper Peninsula.

There’s a new mining boom underway in the region, with global giants like Rio Tinto and Orvana exploring, leasing, and re-opening old mines.

This map [pdf], put together by the Lake Superior ad hoc Mining Committee, shows all mines, mineral exploration and mineral leases in the Lake Superior Watershed as of 2010.

Mining-Activity-Lake-Superior-2011

The map merits some careful study. As you can see, there is already significant activity in the Upper Peninsula. On the Canadian side, especially around Thunder Bay and further north, there’s been a leasing boom. Lots of gold on the eastern shore; copper and nickel as you move further west. They’re also exploring for uranium in at least two places.

The new mining is going to put enormous pressure on the Lake Superior basin. There are the usual environmental hazards associated with mining — subsidence, toxic runoff, acid mine drainage. Mining puts the waterways – the Lake and the streams and rivers that feed it – at risk. And then there is the infrastructure that’s going to be built to support all those mines. Access roads and haul roads, like the proposed CR 595 in Big Bay, roads to get to those roads, gas stations to fuel the vehicles that run along those roads, housing to shelter the people who drive on those roads to get to work and haul the ore from the mines, and so on.

Governor Snyder and his cronies in the Michigan legislature are doing everything they can to encourage this new activity. Just before the holidays, the Governor signed a third lame-duck bill, addressing the taxes that mining companies operating in Michigan will pay. The new bill, brought by outgoing Republican representative Matt Huuki, relieves mining companies of up front costs.  Indeed, they will pay no taxes at all until they start pulling minerals from the ground. Even then, companies will pay only 2.75 percent on gross value of the minerals they extract. So a million dollar sale of Michigan’s mineral wealth on the copper exchange will yield the state a paltry $27,500 in taxes.

35 percent of these so-called severance taxes will go to a “rural development fund to support long-term economic development opportunities.”

A number of things aren’t clear to me. What, exactly, is meant by “economic development” here? What’s the best course of development for a rural region, and for the Lake Superior region? How will fueling the boom benefit the region over the long term? How much if any of this money will go to alleviating the environmental impact that all this new mining is bound to have? How is it possible to talk about rural development without taking responsible stewardship of the environment into account?

It’s also unclear what sort of working conditions in the new mines the “right to work” legislation might allow, and whether the Emergency Manager bill could be used to limit community oversight.

For now, at least, it looks like the big mining companies are running the show in the UP, and the vague promise of economic development — whatever that means — has trumped all else.

China enters the Eisenhower Era

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To alleviate the strain placed on its economy by the world financial crisis, China is planning an “infrastructure spending spree,” according to an article in today’s Wall Street Journal.

The $586 billion stimulus package unveiled this week will go mostly toward building highways, railroads and airports — to connect rural areas with cities, make industry operate more efficiently and help farmers bring goods to market. The plan will give China 53,000 miles of highways; the U.S. Interstate system developed by Eisenhower and realized in the last half of the last century stretches 47,000 miles. The Chinese plan sounds distinctly 20th century, designed to stimulate the economy without too much regard for the environmental impact.

Meanwhile, here in 21st century America, our political leaders and their economic advisers are also touting infrastructure investment as a way to shore up our failing economy. It remains to be seen whether there will be enough pressure on our leaders to make smart choices and the right investments, to convert our existing, inefficient infrastructure to more energy-efficient, sustainable purposes.