There's a lot to like in the President's executive order on critical minerals, including expedited review of pending projects and maximum flexibility of federal funding instruments. Yet to realize the full potential of the executive order, the administration needs more dedicated funding and a focus on comprehensive permitting reform.
Thursday, March 20, President Trump announced an executive order (EO), “Immediate Measures to Increase American Mineral Production,” to grow domestic critical minerals production.
This EO leverages the “national energy emergency” Trump announced in EO 14156, which creates a governance structure and unlocks certain emergency powers in order to grow U.S. energy production.
There’s a lot to like in the order. The changes proposed have the potential to unblock mining projects that have been in the queue for years. What’s more, opening up federal lands for mining processing leases could lower capital costs for new production facilities. The emphasis on unlocking federal finance tools can also help investment flow to the sector even in a broader environment of funding constraints.
At the same time, the dollars just aren’t there. Funding currently available in the federal government is limited, especially with this order’s focus on the Department of Defense. Since this administration separately aims to overturn Inflation Reduction Act grants, loans and tax credits, the actual amount of federal funding for critical minerals could go down in the coming years.
Some continuity with Biden administration priorities
Critical minerals policy is one of the rare areas of bipartisan agreement and continuity between the Biden and Trump administrations. Yet, the new EO signed today also differs in key respects from Biden’s policies, deemphasizing the role critical minerals will play in climate mitigation and providing an opportunity for a potential coal resurgence.
This EO follows a March 14 order, Additional Recissions of Harmful Executive Orders and Actions, which overturned many Biden administration critical minerals provisions. In particular, it halted many Biden-era Defense Production Act (DPA) programs. The intent of the March 14 EO was possibly to create a clean policy slate for the March 20 critical minerals EO.
The people implementing the critical minerals executive order
The National Energy Dominance Council (NEDC) in the White House will play a pivotal role in overseeing the administration’s critical minerals policy. Formal oversight of the EO sits with the Chair of the NEDC, a role currently held by Secretary of the Interior Doug Burgum.
The NEDC’s executive director role is vacant after the departure of inaugural director Oliver McPherson-Smith, formerly of the America First Policy Institute. Reuters reports that former Newmont executive David Copley has been tapped to head the mining portfolio of the NEDC.
Expansion of covered minerals
This EO expands which minerals are covered, adding uranium, copper, potash, gold, and any other product designated by the Chair of the NEDC. This approach bypasses and supplements the process laid out in 30 U.S.C. 1606(a)(3), which tasks the U.S. Geological Survey with determining the official critical minerals list.
Focus on immediate results
Shovel-ready projects are a primary focus of this EO, which emphasizes building lists of projects already in the works and expediting their approvals. The actions laid out (see timeline below) have the potential to finally green-light many long-delayed mining projects in the U.S., many of which have been slowed by cumbersome multi-agency permitting processes.
Yet the EO does not tackle systemic permitting reform beyond updating tailings regulations and issuing a request for information to identify regulatory hurdles. Critical minerals may benefit from other regulatory reform efforts, but there remain some specific regulatory challenges that are still unaddressed.
Opening of federal lands for processing
In addition to maximizing mining leases on federal lands, this EO also seeks to identify appropriate land parcels and even buildings that could be used for minerals processing. The Secretaries of Defense, Agriculture, Interior, and Energy are to identify land suitable for minerals production and processing within the next 30 days. The Departments of Defense and Energy, in particular, have been tasked with signing long-term leases with minerals companies. This approach could potentially lower capital costs for minerals processing companies.
Development Finance Corporation and Ex-Im Bank to fund domestic projects…
The U.S. International Development Finance Corporation (DFC) will rewrite any necessary rules in order to be able to use its funding authorities to finance domestic mineral production, leveraging (in part) Defense Production Act authority. DFC and the Department of Defense (DoD) Office of Strategic Capital (OSC) will jointly develop a mineral production fund to be administered by DFC. DoD is authorized to reimburse DFC for administration of this fund.
The Export-Import Bank (Ex-Im Bank) will similarly recommend guidance for using its Supply Chain Resiliency Initiative financing tools to help U.S. organizations buy raw minerals from overseas for use in domestic processing.
…Yet overall funding is still limited
The EO cites the national energy emergency declared in EO 14156 to waive 50 U.S.C. 4533(a)(1) through (a)(6), and it delegates authority to the Secretary of Defense to use section 303 of the Defense Production Act (DPA) (50 U.S.C. 4533) to make strategic purchases of critical minerals in consultation with the NEDC Chair and relevant agencies. The Secretary of Defense will also make mineral production a focus of the Industrial Base Analysis and Sustainment Program.
Yet no additional funding is made available, and the entire DPA budget is currently well under $1 billion dollars.
At the same time, no reference is made to the large amounts of Inflation Reduction Act funding available at the Department of Energy, aside from general calls to make all financial instruments available. All indications are that the Trump administration hopes to overturn / roll back most Inflation Reduction Act funding.
Funding assistance waives financial disclosures
Any offers of funding assistance from the federal government are to waive disclosures required under Regulation S-K part 1300, which lay out detailed disclosures of mining operations, reserves, exploration results, etc.
Appendix: EO timeline
The order lays out an ambitious and fast-moving timeline to advance domestic critical minerals production:
Within 10 Days: Head of each relevant agency to provide the Chair of the NEDC a list of any operations plans, permits, or other documents for approval that have been submitted to those agencies. Within 10 days after submitting the lists the head of each agency will coordinate with the Chair of the NEDC to identify priority projects for which permits can be either issued immediately or expedited. These agencies shall take all necessary steps to expedite the permits and approvals.
Within 10 Days: The Secretary of the Interior will provide a list of all federal lands with known mineral reserves to the Assistant to the President for Economic Policy and the Assistant to the President for National Security Affairs. They will leverage land use plans under the Federal Land Policy and Management Act to expedite mineral production.
Within 15 Days: The Chair of the NEDC, together with agency heads, will submit to the Executive Director of the Permitting Council mineral production projects to be considered as “transparency projects” on the Permitting Dashboard established by the Fixing America’s Surface Transportation Act, Public Law 114-94, 129 Stat. 1748. Within the 15 days after receiving the submission, the Executive Director will publish selected projects and expedite reviews.
Within 30 days: The NEDC Chair and the Director of the Office of Legislative Affairs will recommend the best way to treat waste rock and other tailings under the Mining Act of 1872.
Within 30 days: The Secretaries of Defense, Agriculture, Interior, and Energy will identify land suitable for minerals production and processing. They are to prioritize sites that can be built and permitted. Following this, the Secretaries of Defense and Energy are to enter into long-term land/building leases, as appropriate.
Within 30 days: The Secretaries of Defense, Energy, and Agriculture, as well as the Administrator of the Small Business Administration (SBA), and any other relevant agencies, shall provide working capital, loans, capital assistance, and technical assistance to mineral production projects to expedite production.
Within 45 days: The SBA is to recommend legislation to support small business mineral production and processing.
Soon (no date specified): The NEDC Chair will issue a request for information to solicit feedback on reducing regulatory hurdles and other ways to expedite domestic mineral production.
Soon (no date specified): The Secretary of Defense shall work with private companies to make private capital available through the National Security Capital Forum.
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