U.S. District Court Judge Miranda Du in Reno this week (Feb. 6) gave a conditional green light to a proposed large, new lithium mine in northern Nevada, rejecting attempts by local environmentalists, Indian tribes, and a local landowner to halt the project.
Du generally ruled in favor of the Jan. 2021 decision by the Interior Department’s Bureau of Land Management at the tail end of the Trump administration to approve the Thacker Pass mine on 5,700 acres of federal land. But she told the BLM that they erred in not evaluating the plan by Lithium Nevada, a subsidiary of Canada-based Lithium Americas Corp., to dispose of mine tailings and waste on 1,300 acres of federal land adjacent to the mine site. She said this was a violation of the 1976 Federal Land Policy and Management Act (FLPMA), which limited BLM’s authority under the 1872 General Mining Act. She remanded the issue to the BLM to address the waste disposal issue.
Judge Du, 53, is a 2012 Obama appointment to the federal bench. According to her Wikipedia biography, she was born in Vietnam during the Vietnam War, to parents who supported the U.S.-backed South Vietnam government. After fleeing to Malaysia when she was 9, the family ultimately won amnesty in the U.S. She graduated from the University of California, Davis in 1991 and earned a law degree from Berkeley’s Boalt Hall in 1994. She became chief judge of the Nevada district court in September 2019.
As a federal judge in a state when the federal government is the largest land owner (80.1%), Du has presided over many land use cases.
Lithium Americas has developmental projects in Argentina as well as Thacker Pass, the largest known lithium deposit in the U.S. In Argentina, the company says, “Caucharí-Olaroz is advancing towards first production as the largest new brine operation in over 20 years and Pastos Grandes, in proximity to Caucharí-Olaroz, represents regional growth.” The company’s stock trades on the Toronto Stock Exchange (LAC) and the New York Stock Exchange (LAC).
In her decision, Du wrote, “While this case encapsulates the tensions among competing interests and policy goals, this order does not somehow pick a winner based on policy considerations. That is not this Court’s role. The Court’s role instead is to carefully apply the applicable standard of judicial review to consider the decision of a federal agency that is generally entitled to deference, based entirely on the contents of the records before the agency at the time of its challenged decision.”
She added that this is a “rare case” in that she did not overturn the BLM action, “primarily because the records suggest BLM could fix the error the Court identifies and Plaintiffs fail in their other legal challenges to BLM’s decision to approve the Project. The Court will remand for BLM to fix the error—to determine whether Lithium Nevada possesses valid rights to the waste dump and mine tailings land it intends to use for the Project.”
Du noted that a May 2022 Ninth Circuit Court of Appeals decision in the Rosemont case, which ruled under the Mining Act that a copper mine proposal in California, approved by Interior’s Fish and Wildlife Service, could not dump mine wastes on adjacent federal land was relevant to the Nevada project. She detailed how “FLPMA interacts with the Mining Law….” The 1872 law was designed to push development in the vast, sparse spaces of the West. FLPMA a hundred years later was designed to regulate use of the federal government’s land to protect the fragile environments of the Western landscape.
The Thacker Pass mine in Humboldt County would be an open pit operation, producing 80,000 tons per year of lithium carbonate, over a 40-year mine life. Developmental capital costs are estimated at $2.2 billion. General Motors, which has a clear interest in lithium to supply batteries for its aggressive electric vehicle program, late last month announced it is investing $650 million in the project to supply lithium to its battery plants. According to the Detroit News, “The lithium carbonate from Thacker Pass will be used in GM’s proprietary Ultium battery cells.”
According to the newspaper, the first portion of the GM investment is being held in escrow pending resolution of the legal battle over Thacker Pass, expected no later than the end of this year. The second portion of the investment is set to come into “Lithium Americas’ U.S.-focused lithium business following the separation of its U.S. and Argentina businesses, GM said.”
It isn’t yet clear whether the plaintiffs in the Thacker Pass case will appeal Du’s decision. Greta Anderson, deputy director of the Western Watersheds Project, said in an email to E&E News that her group is still reviewing the decision and that it would be “premature” for Lithium Nevada to consider this a “green light.” In a press release, Anderson said, “We don’t know yet what the next steps will be, but we know we won’t stop fighting this destructive mine.”
–Kennedy Maize
To subscribe to The Quad Report – it’s FREE—click on the email address above and type “subscribe” into the subject line.
To comment, use the email address.
Feel free to share issues with friends, family, and colleagues.