On May 29, 2019, the Renewable Natural Resources Foundation (RNRF) presented a meeting titled “Deep Seabed Mineral Mining and the U.S.: Diplomatic, Legal, and Environmental Aspects,” hosted by the American Geophysical Union in its newly renovated headquarters in Washington, D.C. Speakers were Greg O’Brien, U.S. Department of State; Kerry Kehoe, U.S. National Oceanic and Atmospheric Administration; and David Diamond, U.S. Geological Survey. They described how the U.S. is participating in deliberations of the International Seabed Authority (ISA), the U.N organization that is writing the rules for exploring and exploiting mineral resources beneath the “high seas.”
Greg O’Brien, a foreign affairs officer in the State Department’s Office of Ocean and Polar Affairs, has led the U.S.’s observer delegation to the ISA since 2015, and spoke about the role of the U.S. in the rulemaking process.
Part XI of the UN Convention on the Law of the Sea (UNCLOS) defines the “Area” that the treaty has the authority to regulate. This includes all seabed, ocean floor, and subsoil outside of national jurisdictions. UNCLOS gives the ISA the authority to establish the rules and regulations governing exploration and exploitation of the resources found in the Area. Membership in the ISA mirrors signatories of UNCLOS, including 168 countries. Since the U.S. is not a party to the convention, it sends a delegation to attend meetings as an observer state.
Despite this non-member status, the U.S. has an interest in development of ISA regulations because of significant mineral resources in the Area. O’Brien stated that our main focus in our engagement is to ensure that regulations that have been developed for exploration and the regulations under development for exploitation are consistent with applicable law, particularly as reflected in the convention. If the U.S. were to ratify UNCLOS, it would be the only country with a permanent seat on the council of ISA, meaning that it would have the authority to veto any regulations or proposals counter to its interests.
Even as an observer state, the U.S. does play a role in the rulemaking process. O’Brien noted that they work closely with other delegations, usually in the margins between sessions. The secretariat, which is the primary rulemaking body of the ISA, has also reached out to the U.S. delegation informally for collaboration in developing some parts of the regulations. Recently, ISA has reached out to the Department of the Interior about the Outer Continental Shelf Lands Act and the development of its standards and guidelines. Regulation of deep seabed resource exploitation is relatively unprecedented, so there is a demand for expertise from existing regulatory frameworks. In that regard, O’Brien said that the U.S. has developed the gold standard. In the Q&A session after his talk, O’Brien noted that no public input on the process of drafting exploration or exploitation rules has been solicited by the U.S. delegation or government. Also, prospective mining contractors are providing technical expertise to the ISA because of its limited technical resources.
ISA rulemaking is very important because it is thought that the Area contains significant critical minerals, including rare-earth minerals. While they are unsure of the exact amount of resources on the deep seabed, many scientists (including some from the U.S. Geological Survey) believe that the Clarion-Clipperton Zone (CCZ), located west of Mexico and southeast of Hawaii, holds three times the amount of certain rare earth minerals than all terrestrial deposits combined.
As a party to UNCLOS, the U.S. could sponsor companies to have mining rights in the CCZ and other areas of the international deep seabed. However, the U.S. cannot currently do this, and companies will not take the risk of mining without the legal certainty that having a sponsor affords them.
O’Brien described some issues that the ISA is currently facing in its rulemaking process. First, environmental assessment and risk management are of great concern, but there is currently much that is not known about biodiversity and the environmental baseline in the Area. This dearth of information makes it far more difficult to craft effective environmental regulation. The U.S. delegation is also advocating for heightened cognizance of other uses of the deep seabed, namely underwater telecommunications cables. Since there are such cables running through the CCZ, it is important that this be considered when crafting regulations.
Royalty payments to the ISA for mining activities are also under discussion. The U.S. is helping with this process – MIT’s policy research lab has been working with the ISA secretariat for two years about options for what the formula for royalties would be and when such a policy would take effect. Overall, O’Brien says, the U.S. wants ISA to adopt policies that are friendly to enterprise and place no greater regulatory burden on mining companies than current terrestrial mining regulations.
Kerry Kehoe, a federal consistency specialist in the Office for Coastal Management at NOAA, spoke about managing the Deep Sea Hard Mineral Resources Act (DSHMRA). The act established the domestic authority for regulation of deep-sea mineral mining.
DSHMRA was enacted in 1980 before the adoption of UNCLOS and the establishment of the ISA. It established the requirements for U.S. citizens engaged in exploration or mining in international waters. Mining in domestic waters is administered by the Bureau of Ocean Energy Management. DSHMRA was drafted as an interim measure pending U.S. ratification of UNCLOS. However, since UNCLOS has not been ratified, DSHMRA remains in place.
For U.S. citizens, a license is required for exploration and a permit is required for mining activities in international waters. There are numerous environmental and other compliance regulations that may apply to these activities, like the Clean Water Act, Clean Air Act, and Endangered Species Act. Presently, there are only two ongoing exploration licenses from the U.S., and both of them belong to Lockheed Martin. While these contracts are extended every five years, no permits have been issued for mining.
Kehoe continued by discussing the interests that the U.S. has in continuing to be engaged with the ISA even without membership. He emphasized that the first companies to successfully mine the deep seabed will likely dominate the market. Just because the U.S. cannot sponsor contractors does not mean that U.S. companies cannot be involved in deep seabed mining. U.S. companies bring an abundance of expertise to the table, and so there are opportunities for them to be involved.
David Diamond, deputy associate director for energy and minerals at USGS, spoke about the survey’s role in conducting seabed ecosystem research and informing international policymakers of scientific advances that could affect rulemaking deliberations.
Diamond provided background on the policy impetus for USGS’s actions regarding deep sea minerals. In 2017, an executive order was signed establishing a federal strategy to ensure reliable supplies of minerals considered critical for various reasons. USGS produced a list of 35 minerals it deemed critical, and Diamond noted that close to half of them could be found from marine sources.
On the Outer Continental Shelf (OCS), still within U.S. territory, the Bureau of Ocean Energy Management (BOEM) has jurisdiction over mineral mining activity. It has a two-stage leasing process – prospecting and leasing – and lacks the authority to lease off the shores of U.S. Territories and Possessions. This is important because much of the most valuable areas for marine mineral mining under U.S. jurisdiction, such as Guam and Northern Mariana, are not U.S. states.
USGS has worked with the ISA since 2000, and has worked with it through the Department of State since 2007. It provides science to inform decision-making and participates in workshops defining mineral classifications and discussing environmental considerations.
For the U.S. government, USGS conducts resource evaluation and identification activities to survey areas for marine mineral deposits and collecting and analyzing samples. It also play a role in informing environmental regulations by conducting important basic research.
Diamond noted that currently the majority of interest in deep seabed mining seems to be centered around polymetallic nodules. These small nodules lay on the surface of the sea floor and are of interest because they contain numerous types of minerals. Also, falling under ISA regulation for licensing are ferromanganese crusts and polymetallic sulfides.
Diamond finished his presentation by discussing the environmental considerations of deep seabed mining. He noted that the possibility of deep seabed mining has created both the need and the means for more extensive baseline characterization of the oceans, and deeper insight into ocean processes. There are multiple, different considerations for nodules, sulfides, and crusts, including the removal of substrates and fauna, the creation of plumes, and the release of oxides and substrate particles. USGS is collaborating with academia, industry, and government to better understand these impacts and how to address them.
— Stephen Yaeger, RNRF Program Mgr.
To access Kerry Kehoe’s PowerPoint presentation click here.
To access David Diamond’s PowerPoint presentation click here.