I usually post the quarterly lobbying disclosures for Antofagasta’s Twin Metals project on Twitter, but I am taking a social media break. So here’s a quick post about what this quarter’s disclosures show.
Q1 2023 disclosures reflect a change in strategy after the actions taken last year by the Solicitor of the Interior, the Bureau of Land Management, and the US Forest Service. Lobbying of the executive branch has shifted to the Department of Energy. The focus of the lobbying is now around the energy transition, positioning Twin Metals as “a world-class project to provide the critical metals that a growing and greener world requires.” (That’s from the latest Antofagasta annual report).
It also looks as if the company is off to a slightly more modest start this year, committing a total of $180,000 for the first quarter of 2023. (In 2022, as I noted back in January, Antofagasta spent over 1 million dollars lobbying the US federal government for its project near the Boundary Waters — $1010,000, to be precise. First quarter expenditures were $200,000; second quarter, $290K; Q3, $280K; and Q4, $240K).
Let’s break down that Q1 2023 number.
The Daschle Group, the only group that lobbies directly for the Chilean mining company (and not for its Twin Metals US subsidiary), reports $20,000. This is just a retainer: for this quarter, as in the first and fourth quarters of last year, they report no lobbying activity.
Brownstein Hyatt continues to command the lion’s share of the Twin Metals lobbying dollars, and with good reason. Former Secretary of the Interior David Bernhardt rejoined Brownstein Hyatt after the Trump administration came to its ignominious end; and in 2021 the firm poached Wilmer Hale’s Andrew Spielman, who during the Trump years helped shepherd the Twin Metals project through the agency Bernhardt led. Last year, Brownstein pulled in $490,000 for Twin Metals lobbying; $120,000 of that was billed in Q1 of 2022. In the first quarter of 2023, Brownstein Hyatt reports just a little less for its Twin Metals work: $110,000. The firm lobbied the Senate, the House, and the Department of Energy for “supporting development of mining a project in Minnesota” [sic].
Wilmer Hale may no longer lead the Twin Metals lobbying efforts, but the firm still reports $50,000 for the first quarter of 2023. They lobbied the Senate and the House on “mining issues.”
Antofagasta’s three lobbying firms may have to take a slight haircut this year, if this first quarter sets the pattern; but things could pick up again, especially if Antofagasta can get a favorable judgment in federal court. Currently, the project faces some enormous administrative and legal hurdles, enough to trigger a $177.6M impairment in Antofagasta’s accounting. But the Group, as Antofagasta likes to refer to itself, appears to be taking the long view. Administrations come and go, priorities shift, rules change, and Antofagasta needs to keep its American friends close.
Something else worth noting happens toward the end of this video clip, when Stauber tries to plant a green flag. “If you are at all serious about emissions reductions, you will vote to support H.R. 1. We need to pass H.R. 1 for energy independence and critical mineral dominance.”
There has already been plenty of commentary around the misleading claim that this bill would reduce emissions. Common Dreams published a pretty good rundown. Opponents have labeled H.R. 1 the Polluters Over People Act; the Center for Western Priorities notes that it would reverse many of the Inflation Reduction Act’s reforms to the onshore oil and gas leasing program; and as for the notion that this bill is “serious” about the energy transition, Chuck Schumer called that “laughable,” and declared this “wishlist for big oil” Dead On Arrival in the Senate.
Equally specious is the Trumpian claim that this legislation is a formula for “critical mineral dominance.” This US Geological Survey presentation on global distribution of critical minerals or these maps from The Wilson Center suggest just how infeasible that is. Misleading claims and rhetorical swagger on this score can lead to bad policy at home and serious missteps abroad.
Take a closer look and it’s clear that this is an act of legislative mischief. The stated legislative purpose of H.R. 1 is to “lower energy costs by increasing American energy production, exports, infrastructure, and critical minerals processing”; but when it comes to critical minerals the bill does nothing of the sort. In fact, the piece of H.R. 1 Stauber wrote (the not-so-subtly entitled Permitting for Mining Needs Act, or Permit-MN) would do nothing to help secure “critical minerals dominance.” Instead it would effectively do away with critical minerals.
Permit-MN goes through 30 U.S. Code § 1607, the “Critical Minerals Supply Chain and Reliability” section of the 2021 Infrastructure Investment and Jobs Act, and at every opportunity strikes the word “critical” from the books. It changes the title of the section to “Minerals Supply Chain and Reliability.” It removes the word “critical” from “each place such term appears” in the Sense of Congress section. That section currently reads:
It is the sense of Congress that-
(1) critical minerals are fundamental to the economy, competitiveness, and security of the United States;
(2) many critical minerals are only economic to recover when combined with the production of a host mineral;
(3) to the maximum extent practicable, the critical mineral needs of the United States should be satisfied by minerals responsibly produced and recycled in the United States; and
(4) the Federal permitting process has been identified as an impediment to mineral production and the mineral security of the United States. [emphasis mine.]
Sense becomes nonsense. And Permit-MN makes the same move in subsequent sections, striking the word “critical” wherever it appears. In other words, H.R. 1 would extend the special legislative consideration given to critical minerals, because they are “fundamental to the economy, competitiveness, and security of the United States,” to any and every mining project.
Permit-MN has already won Stauber some favorable local press but it only makes a mockery of serious concerns about national security and the energy transition. What really counts here is not the public interest, or making responsible industrial policy to meet the country’s critical mineral needs, but the immediate financial interests of mining companies. And if this is an indication of the reckless permitting reform we can expect from this Congress, then we are better off leaving things as they are.
The amendment Anna Paulina Luna crowed about on Twitter today would appear to give no quarter to bad foreign actors in the mining sector.
A closer look reveals that it’s actually a stripped-down version of a much more robust and far-reaching amendment introduced by Representative Raul Grijalva earlier in the day, which Republicans strenuously opposed. Notably, this narrower version cedes significant ground, giving mining companies a pass on environmental damage and destruction of cultural heritage sites.
Here are a few highlights, just to give the flavor of the discussion.
Way back in October of 2018, I filed a Freedom of Information Act request with the US Department of State concerning an April 2017 meeting at the US embassy in Chile between Ivan Arriagada, CEO of Antofagasta plc, and Carol Z. Perez, who was then US ambassador to Chile. About a month later, I followed up with a second request for embassy communications regarding Trump’s nomination of Andrew Gellert to be ambassador to Chile.
These documents could help highlight the use of the US embassy in Santiago as a business backchannel for Antofagasta’s Twin Metals project in northeastern Minnesota, and perhaps shed some light on the Trump administration’s (botched) effort to appoint a close Kushner family business associate to be Perez’s successor. With Kushner’s $2 billion deal with the Saudis and the financing of the 666 Fifth Avenue deal under scrutiny, these records might also shed some light on the grey area where Kushner operated, mixing financial and other emoluments with Trump administration policy.
Over four years later, those FOIA requests are still outstanding. After a long delay, several blown deadlines, a denial of my request for expedited processing, then a denial of my appeal of that decision, the Department of State now tells me that I should expect a response to the October 2018 request by November 20, 2023. The November 2018 request is now expected to be completed by May 31, 2024. State complains of a FOIA backlog and setbacks due to the COIVD-19 pandemic, but it’s hard to square those complaints with any reasonable interpretation of the FOIA statute, which stipulates that records will be made “promptly available.” And, of course, these soft deadlines are likely to change again.
A lot has changed in the years since I made these two requests, and with the Republicans now taking the gavel in the House, a lot more changes are coming. The Biden administration restored the status quo ante when it issued a legal opinion saying that Antofagasta’s mineral leases near the Boundary Waters had been improperly renewed; the Forest Service completed the withdrawal study that Sonny Perdue, Trump’s Secretary of Agriculture, abruptly canceled due to political pressure; and the Bureau of Land Management proceeded with the Rainy River Withdrawal.
As Antofagasta and its Twin Metals subsidiary contest these actions in a yet another lawsuit against the federal government, the mining company has stepped up lobbying efforts.
Fourth quarter lobbying disclosures are due today. By Q3, Chilean mining company Antofagasta had spent $770K on lobbying for its Twin Metals project near the Boundary Waters, and was on track to spend over $1 million this year. I'll update this thread today as reports come in. https://t.co/lZDRpDwY2t
Republicans now say the administration’s actions leave the US vulnerable and over-reliant on supply chains controlled by China. They say the Twin Metals project and other sulfide mining projects in the Lake Superior region will provide American jobs and help prevent human rights abuses abroad.
It’s clear the Twin Metals project will remain a national political flash point in the 118th Congress and in the 2024 election. But so much has changed over the past few years that it’s hard to say whether the records I’m asking for will be of anything more than limited historical interest. What might they contribute to the larger story I am trying to bring into focus, or the current public debate?
That’s weighing on my decision whether to write another complaint, pay the $400 filing fee, and try to force the State Department’s hand. Any case filed in US District Court now would probably take at least until summer or fall to produce responsive records, at which point the State Department promises, sort of, to have its act together. Or they could just put me off again.
2023 could see the end of Section 206, the New York LLC publication requirement. I have supported its repeal ever since I first came up against it, and I still support it, despite some misgivings. The legislation currently on the table does little to quell them.
Currently, New York Limited Liability Company law requires newly formed LLCs and LLPs to publish a notice for six successive weeks in two newspapers designated by the county clerk, “one newspaper to be printed weekly and one newspaper to be printed daily.” At the end of that period, founders have 120 days to file an affidavit of publication (and pay a $50 filing fee). Costs can run into the thousands of dollars, since local newspapers where the notices are printed — and they must be printed — effectively have a monopoly.
This part of the 1994 LLC law reads like an artifact from a bygone, pre-internet era, and it no doubt helped prop up struggling local newspapers financially even as the internet hastened their demise. It has also given rise to a professional services cottage industry.
Legislation to repeal Section 206 has been making its way at a slow crawl through the New York Senate and the Assembly since 2008. It was last referred to the Committee on Corporations, Authorities, and Commissions in January, 2022. In March of this year, the New York Bar Association came out in support of repeal. In November, the bill’s sponsors, Liz Kreuger in the Senate and Rebecca Seawright in the Assembly, both won re-election. So prospects for a repeal in the next legislative session look favorable.
The proposed amendments would not only repeal the publication requirement, but also establish something called the Department of State modernization fund. Notices would be published in an online database maintained by the Department of State; associated filing fees would go toward “the modernization and security of the Department of State’s public-facing website, and for developing alternatives to physical publication of documents.” The bill’s sponsors say it will “remove onerous and unnecessary requirements on LLCs and partnerships forming in New York state” and that online filings “will improve a citizen’s access to this information.”
The Bar Association rightly observes that LLC and LLP filing notices running in local newspapers are generally ignored. Publication costs are high; the current requirement “serves no legitimate business or economic purpose,” they write; and it creates an unjustifiable disparity, since New York corporations are not subject to the same requirement as LLCs. These are all good points, as almost anyone who has contended with the publication requirement will tell you, and 97 percent of the lawyers surveyed by the Bar Association agree.
In addition, eliminating the publication requirement will benefit the State of New York in several ways. It will likely increase business activity in New York, which will benefit the Department of State’s revenues. More companies forming and locating within the State would similarly benefit New York’s economy. As a result, this bill will likely lead to higher employment and greater tax revenue in New York. More companies with offices in New York will employ more New Yorkers, resulting in increased tax revenue to the State.
Here is where my misgivings start to kick in. It’s hard to say how “likely” any of this really is. The publication requirement is an inconvenience and a burden, but how many companies have really been deterred from forming and locating in New York because of it? When it comes to choosing between New York and Delaware, how much does Section 206 factor into the decision? Delaware LLCs and LLPs that do business in New York still have to register to do business here, pay an annual filing fee, and comply with New York tax laws. Could the repeal make New York the new Delaware? Unlikely: Delaware will still enjoy institutional advantages (namely, the Court of Chancery) and a reputation, deserved or not, as the best place to form a business and raise capital.
Maybe Delaware sets the bar too high. Will the repeal significantly increase business activity and contribute to higher employment and greater tax revenues? Look at the trend line on this US Census Bureau graph. Is the repeal of Section 206 the thing to keep it moving north? Will the upward trend accelerate once the legislation passes?
Time will tell, and some measure of skepticism seems warranted. What’s more, the repeal could have adverse consequences as well as benefits. What happens to the small, local print publications that have been practically subsidized since 1994 by LLC listings? Those local newspapers may not matter so much in New York City, where we have several daily newspapers (but I’m not sure that argument can stand much scrutiny), and protecting New York City publishers’ Section 206 interests may be outweighed by the economic benefits anticipated from the repeal. But what about in more rural counties?
Do printed daily and weekly newspapers still serve rural, or, for that matter, urban communities in other ways? Let me overdramatize just to drive the point home:
This would all have been exposed before the election if local newspapers were not running on fumes. For most of my career in politics, local journalists would have uncovered this during the campaign…not after votes had been cast. This is a big problem. https://t.co/tyrU5EjLjK
No surprise that local print publications failed to catch this brazen fraud.* It’s the rare local newspaper that can support investigative journalism or take on a newly elected member of Congress; and a Section 206 zombie newspaper probably isn’t going to be up to the job anyway. Subsidizing publishers on the back of new businesses, which is essentially what 206 does, is not the same thing as supporting local journalism. Still, it would be good to know or at least see some public discussion of what these print publications contribute to their communities before they try to set up entirely online or just fail; it would be even better to see some legislative efforts to keep local journalism alive. The LLC publication requirement cottage industry will likely disappear, too. I have more trouble shedding a tear for its demise.
Another set of questions concerns the modernization fund, its reach and its governance.
The legislation places the fund under the custody of the State Comptroller and specifies that “on the warrant of the State Comptroller” the moneys in the fund will be paid to cover modernization and security upgrades to the DOS website and development of digital alternatives to the current publication system. Moneys in this fund are “to be kept separately and not to be commingled with other moneys” in the Comptroller’s custody.
But what falls under the fuzzy heading of “modernization”? What does the firewall between modernization and other Department of State projects look like, and how will it be maintained by successive Comptrollers? Is modernization a project without end, lasting as long as the filing fees keep adding to the coffers? At bottom, my concern is that the modernization fund could, over time, turn into a consulting industry slush fund.
If it becomes law in the next legislative session, the repeal of Section 206 could do all that it promises to do: relieve founders and partnerships of a costly, bothersome requirement, improve public access to corporate records, and even deliver some limited economic benefits. It could also undermine or fail to serve the public interest in other, unanticipated ways.
U.S. local newspapers are dying at a rate of 2 per week. By 2025, a third of them will be gone. If you’re not convinced that’s a doomsday-level threat to democracy, read this state-by-state list of what local reporters uncovered in 2022. It’s a sample of what we stand to lose.
Before the Trump years, few Americans had heard of Chilean mining giant Antofagasta plc or the powerful Luksic family who control it. Today, Antofagasta’s controversial plan to mine copper and nickel on the edge of the Boundary Waters and the scandals associated with it are not exactly common knowledge, but at least better known. Congressional hearings, activism, and investigative reporting helped bring the previous administration’s reckless, clumsy, and corrupt handling of Antofagasta’s permits into focus. (Maybe some of the records I obtained through the Freedom of Information Act helped, too.) But despite steps taken by the Biden administration to set right some of what the Trump administration did wrong in this case, the Antofagasta file is far from closed. The lobbying for reversals and permits continues apace* and important aspects of the story are still obscure.
A FOIA request I made on June 3, 2021 promises to shed some light on one aspect of the story, maybe nothing more than a minor detail, involving the Development Finance Corporation. The first set of records arrived last Friday. Nothing much so far, just some innocuous looking office email correspondence, but I’ve posted the records on documentcloud and will continue to put them up as they arrive. Here, I just want to set these records in context.
The story takes us back to 2013, the first year of Obama’s second term. That’s when Twin Metals Minnesota filed its mineral lease renewal application at the center of the current Boundary Waters controversy, and it’s also when the Overseas Private Investment Corporation, or OPIC, made a $250 million investment in the Alto Maipo Hydroelectric Project in Chile. At the time, the Luksic Group, owners of Antofagasta plc, held a 40 percent share in the mega-project.
This looks like nothing more than a coincidence. Antofagasta would not formally acquire Twin Metals until 2015; and the company would decide to get out of Alto Maipo in 2016 (though it took until 2020 to divest fully from the project). At most, the OPIC deal might have helped persuade Antofagasta that the Obama administration would look favorably on its North American plans.
In 2018, the Development Finance Corporation, or DFC, took over the OPIC portfolio of projects, investments that aim to alleviate poverty, combat corruption, and promote sustainable as well as low-carbon and no-carbon development. DFC also shares OPIC’s stated commitment to “respect the environment, human rights, and workers rights.” Its Environmental and Social Policy and Procedures document, produced in July 2020, shows remarkably little sign of the crude transactionalism that dominated foreign affairs, including foreign aid and investment, during the Trump administration.
Just one month later, on August 18, 2020, DFC’s statements of principle would be put to the test. The DFC was informed of serious human rights challenges at Alto Maipo Hydroelectric Project. Five UN Special Rapporteurs on Human Rights sent a five page letter to Adam Boehler, Jared Kushner’s friend and college roommate and the Trump-appointed CEO of the Development Finance Corporation, warning of possible human rights violations at Alto Maipo.
The letter is included as an Annex in written comments for the June 9, 2021 meeting of the DFC.
The UN Rapporteurs express concern that the Alto Maipo project hoards water for mining interests, hurts local communities, and is proceeding without adequate concern for human rights and the environment. The letter says the mega-project would reduce “the availability of water for human consumption and domestic use, in contexts already characterized by climate change and water scarcity.” The shortages could also affect subsistence agriculture, “resulting in violations of the right to food and other rights related to the right to an adequate standard of living.” The project appears to be proceeding without participation of the affected communities and with significant damage to biodiversity and the environment, and “multiple human rights violations” are likely to result.
Unable to find Boehler’s response to these claims, I filed a Freedom of Information Act request for “all DFC communications regarding the 18 August 2020 letter from UN Special Rapporteurs to DFC CEO Adam Boehler regarding the Alto Maipo Hydroelectric Project in Chile, including any and all communications to or from Mr. Boehler about the topic.” The few records included in the first FOIA production do not include anything from Boehler; they are a small set of emails to and from Catherine Andrade, DFC Corporate Secretary, in preparation for the June 9, 2021 DFC Board Public Hearing.
Alto Maipo was on the agenda for the day, as it was again at this year’s meeting. Groups that have monitored human rights and environmental issues around Alto Maipo were slated to participate: Juan Pablo Orrego, president of the organization Ecosistemas, and Carla Garcia Zendejas from the Center for International Environmental Law were among the presenters. Observers included representatives of BNP Paribas, Oxfam, US Small Business Administration, Accountability Council, and the Wildlife Conservation Society.
All indications are that this was a meeting Boehler’s DFC wasn’t especially eager to have. In April 2020, the DFC declared itself exempt from the Sunshine Act, which requires federal agencies to open meetings for public observation.
In response, the Center for Biological Diversity and other plaintiffs sued:
They say the rule change means that [DFC] no longer faces any obligation to provide communities with information that could later impact their environments and livelihoods.
The Center for International Environmental Law, a co-plaintiff on the suit, spent years working with communities affected by the Alto Maipo Hydroelectric Project, which Chilean activists argue would threaten the drinking supply of more than 6 million people in the Santiago Metropolitan Region. The OPIC granted $250 million in funding to the project in 2013.
“For many years, we worked to hold OPIC…accountable,” Carla Garcia Zendejas, the organization’s director of people, land and resources, said in an email, “ensuring that communities affected by the institution were able to secure access to information regarding the institution’s decision-making processes and to utilize the accountability mechanism when adversely affected….
Garcia Zendejas emphasized that the DFC’s new exemption “had very practical implications for communities on the ground who are seeking information about the projects that could upend their lives.”
Bill Snape, Senior Counsel of the Center for Biological Diversity, added that he could see little reason for the agency to try to exempt itself from the Sunshine Act, “unless you have things to hide.” The plaintiffs did not prevail, however, and in February of this year, Judge Christopher Cooper granted DFC’s motion to dismiss, writing that the Sunshine Act does not apply to the DFC. For now, at least, FOIA does.
* I looked at Q2 2022 lobbying for the Twin Metals project here:
Antofagasta is on track to spend a million dollars this year on lobbying for its expired mining leases in northeastern Minnesota.
Last week, the Biden administration determined that Antofagasta plc’s mineral leases near the Boundary Waters had been improperly renewed in 2019.
Principal Deputy Solicitor of the Interior Ann Marie Bledsoe Downs found that changes made to the Bureau of Land Management’s standard lease form were irregular and amounted to giving the Chilean firm “special treatment.” She also withdrew the “flawed” Jorjani M-Opinion, M-37049; its specious claim that Antofagasta had a “non-discretionary right” to renewal of its leases, she wrote, “spurred the improper renewal decisions.” The Jorjani opinion led the agencies into a procedural and legal morass.
“As a consequence of the Jorjani M-Opinion,” Bledsoe Downs writes, the Department of the Interior ignored or sidestepped the Forest Service’s statutory consent authority. Jorjani all but eliminated this authority and swept aside the fact that the Forest Service did not consent to a renewal of the leases back in December of 2016. That determination was invalid, he claimed, because the mining company had a non-discretionary right to renewal. Not just the Forest Service, but “the United States” itself had no say. The leases had to be renewed; the Forest Service could make some stipulations, nothing more.
And if you follow the argument here that Interior ignored the Forest Service’s statutory consent authority, you have to ask: why did Secretary of Agriculture Sonny Perdue allow that to happen?
A small batch of Boundary Waters documents that arrived last night — the 19th supplemental release of records compelled by my FOIA lawsuit against the Department of the Interior — does not shed much new light on how these decisions were taken. This is probably the last batch of records, with the exception, maybe, of those records whose redaction I am contesting.
These records are almost entirely redacted. Nothing but black. I added them to the collection on documentcloud anyway, here.
The new records include three (totally redacted) drafts of a BLM News Release announcing the reinstatement in 2018 of Antofagasta’s mineral leases.
They also include two fully redacted memos from Mitch Leverette, Acting Eastern States Director at the Bureau of Land Management, to Tony Tooke, Chief of the US Forest Service. Even the dates are redacted on these! But we know that they must have been written between September 2017 and March 2018, during Tooke’s brief term as Chief.
The dates, but not much more than the dates, are not redacted on two DOJ communications from Lisa Russell, Chief of the Natural Resources Section of the Environment and Natural Resources Division. Russell’s July 10, 2018 memo is addressed to Karen Hawbecker in the Office of the Solicitor at the Department of the Interior; this is followed by a 14 page draft litigation report on the Voyageur v. United States and Friends of the Boundary Waters v. BLM cases. Those cases had just been filed. Another report, from Russell at DOJ to Jeffrey Prieto, General Counsel at USDA, dated January 18, 2017, deals with Franconia Minerals v. United States, the lawsuit brought by the mining company in September, 2016, claiming a right to renewal of the mineral leases.
Though their contents have been completely obliterated, these records still tell us a little something. Both Leverette at BLM and Russell at DOJ are consulting with the Forest Service; the memos may simply bring the Forest Service into the loop of the the legal work being done at these agencies; they might well address the critical issue of its statutory authority; and in Leverette’s case, at least, the memo might reiterate the Jorjani argument that the USFS 2016 non-consent determination was invalid. The redactions make it impossible to say for certain.
When it comes to the three drafts of the BLM News Release announcing the reinstatement of Antofagasta’s leases, we have very little to work with. The news release comes from Leverette’s Eastern States division. The headline in all three cases reads: “Bureau of Land Management reinstates Minnesota mineral leases. Consideration of application for renewal also re-started.” All three drafts are marked “for immediate release.” While one of the drafts is dated May xx, 2018, two of the drafts are dated “February xx, 2018.”
The official date of the reinstatement was May 2, 2018, but we know from records I’ve previously obtained that the February draft of the news release caused a flurry of activity at the Department of Interior. For example:
The language requested by Leverette might well have been some legal justification of the reinstatement along the lines prescribed by Daniel Jorjani: Antofagasta’s leases could be reinstated because, due to a legal error, the Forest Service’s non-consent determination was invalid. Consider this paragraph from Leverette’s May 2, 2018 official Reinstatement Decision memo:
Because the BLM’s prior request for Forest Service consent was based on the legal error that the United States had discretion to decide whether to renew the leases, we informed the Forest Service that its December 2016 non-consent determination was not legally operative. The Forest Service has not objected to that conclusion.
This just leads me back to the question I asked on Twitter. Why didn’t the Forest Service object? Why didn’t it stand by its earlier conclusion? Why didn’t it make an effort to protect the integrity of the scientific study then underway? Or was there an objection that took from February to May to settle? Was that the subject of the two memos from Leverette to Tony Tooke? Did Tooke’s resignation in March 2018 help resolve the matter?
Of course, there are other explanations for the February-May delay. The federal bureaucracy is a slow-moving beast. Tooke was under siege in the last months of his career at the Forest Service and in no position to dictate terms. And, as Bledsoe Downs points out in a footnote to her legal memo, the decision to reinstate the leases was “concurred in by Joseph Balash, Dep’t of the Interior Assistant Sec’y for Land and Minerals Mgmt.” It may have taken from February to May of 2018 to obtain that concurrence.
What we do know for certain is that on May 2, 2018, on the very day the Bureau of Land Management reinstated these mineral leases, the CEO of Antofagasta plc met with Secretary of Agriculture Sonny Perdue. The pressure only mounted from that point on. Though Jorjani had asserted back in December of 2017 that the US Forest Service had no power to say whether the Chilean mining company’s leases should be renewed, the mining company, the agencies, the White House, and several members of Congress dedicated significant resources over the next year to making sure of that and getting Sonny Perdue to cave to their demands.
You can find all the Boundary Waters records I’ve received to date here.
Read more about the Boundary Waters reversal here.
In the public comment I submitted last week on the Rainy River Watershed Withdrawal, I made the point that completing the withdrawal would not only help protect the Boundary Waters. It would also serve the interest of good government. A new article by Steven Levitsky and Lucan Way in Foreign Affairs helps set this point in the context of an unfolding American crisis.
“America,” argue Levitsky and Way, “may no longer be safe for democracy, but it remains inhospitable to autocracy.” Even so, the ongoing push toward autocracy is likely to bring a prolonged period of democratic instability and political violence. Even when they do not succeed in their autocratic ambitions, autocrats and their cronies in the public and private sector will destabilize government, undo rulemaking, and undermine legitimacy, as we saw clearly during the Trump era:
Trump proved to be as autocratic as advertised. Following the playbook of Hugo Chávez in Venezuela, Recep Tayyip Erdogan in Turkey, and Viktor Orban in Hungary, he worked to corrupt key state agencies and subvert them for personal, partisan, and even undemocratic ends. Public officials responsible for law enforcement, intelligence, foreign policy, national defense, homeland security, election administration, and even public health were pressured to deploy the machinery of government against the president’s rivals. (emphasis mine)
If Trump or a like-minded Republican wins the presidency in 2024 (with or without fraud), the new administration will almost certainly politicize the federal bureaucracy and deploy the machinery of government against its rivals. Having largely purged the party leadership of politicians committed to democratic norms, the next Republican administration could easily cross the line into what we have called competitive authoritarianism—a system in which competitive elections exist but incumbent abuse of state power tilts the playing field against the opposition.
Corruption and political interference at Interior and USDA around a single mining project may not rank among the most serious abuses of state power we’ve seen lately or are likely to see. But documenting and understanding what happened in the case of the Rainy River Withdrawal can help us appreciate where things might be heading.
On my run today, I started thinking about the upcoming public comment sessions on sulfide mining near the Boundary Waters. I decided to focus on the point that it's not just about protecting the Boundary Waters, it's about good government. And then @FriendsBWCAW just — pic.twitter.com/PZCHnDdtKf
My written comments ran to five pages, so instead of posting them here, I put them online as a PDF, which you can read here. I also made a three-minute comment in the live session hosted by the Bureau of Land Management and the US Forest Service this afternoon. My comments focus mainly on the story I’ve been pursuing for the past few years — a story of corruption. The first couple of paragraphs convey the general idea:
Federal lands in the Rainy River Watershed should be withdrawn from disposition under US mineral and geothermal leasing laws for the proposed initial twenty-year period, if not permanently. This is an overdue decision, grounded in science, economics, law, and environmental ethics.
Why, then, hasn’t it already happened? How did this withdrawal process, which started in 2017, go off track? Agency records obtained through the Freedom of Information Act show clearly that a foreign mining company, Antofagasta plc, acted to prevent the withdrawal; and from 2017-2021, members of Congress and the executive branch ran political interference on its behalf. Decisions taken behind closed doors during that period served foreign private interests, not the American public interest. The agencies now have an opportunity to rectify the situation.
I end with three recommendations:
The announcement on October 20, 2021, that the Biden administration will complete the “science-based environmental analysis” was encouraging. Given all the political interference, the two-year study really ought to have been started all over again, from scratch, in the interest of scientific integrity. At the very least, USDA Secretary Tom Vilsack should release – unredacted — the preliminary findings of the canceled two-year scientific study, so that they can be compared with the new and complete analysis.
As agencies work toward a science-based decision on the twenty-year withdrawal, they also need to take additional steps to restore public confidence and guard against undue influence. As a first step, the USDA Inspector General could review Secretary Perdue’s decision to cancel the 2017 withdrawal process and report on scientific independence, ethical conduct, and political interference at the agency.
Finally, the agencies can help raise standards. Industry repeatedly assures us that non-ferrous mining in the Rainy River Watershed and elsewhere can be done “responsibly,” and there are a growing number of calls, from Congress and from within the Biden administration, for “responsible mining” for the transition to renewables. How should government respond? Rigorous and practical guidance for agencies on the law and ethics as well as the technical and scientific aspects of “responsible mining” would be a good start.
Here is a recording of my three-minute live comment, which tracks all this pretty closely. Video is cued to the mark.