Arizona Domestic Policy Government Regulation Top Issues Updates

National Review: The Biden White House Gives Copper the Shaft

One of the country’s largest mineral reserves remains unmined amid environmental and legal challenges.

Originally published at on April 25, 2023.

If the Biden EPA’s mandate to electrify as much as “67% of new sedans, crossovers, SUVs, and light trucks” by 2032 survives legal and congressional challenges, automakers are going to need more copper.

Much, much more copper.

This isn’t debatable. The International Energy Agency estimates that a conventional automobile requires 22.3 kilograms of copper, while an EV consumes 53.2 kilograms of the metal. Going beyond transportation, the wholesale replacement of traditional energy with Al Gore–approved fuels and technologies means heavy Cu production, far into the future, for solar farms, wind turbines, battery storage, heat pumps, etc. If the greens get their way — and there’s every reason to believe that they will — America’s demand for copper will be ravenous.

But the element can’t be grown on organic farms, harvested from food waste, or extracted from rain-collection buckets. It must be mined.

In 1995, Magma Copper Company made “one of the great copper ore discoveries of the last 100 years,” just over a mile away from its mine outside Superior, Ariz. The trouble was that all that mineral loot was located thousands of feet below the surface.

Magma walked away from its operations in 1996, and early in the 21st century, two global mining giants — Rio Tinto and BHP — formed a partnership, Resolution Copper, to tap the massively deep cache. But access was a complicated matter. To get at the hoard, located beneath the Tonto National Forest, the company negotiated a land swap with the federal government. It took ten years for Congress to pass legislation authorizing the conveyance to Resolution Copper of 2,422 acres. In exchange, the company offered a total of eight parcels, located in six Arizona counties — 5,376 acres in all.

The better-than-two-for-one deal was so uncontroversial that the local Democratic congresswoman, Ann Kirkpatrick, supported it. So did John McCain. And in 2014, Barack Obama signed it into law. But before the land swap could be inked, the U.S. Forest Service had to issue a final environmental-impact statement (FEIS). And the wait wouldn’t be brief. As usual, the feds took their time, giving the environmentalist Left years to plot strategy.

It wasn’t until the last days of the Trump administration that the FEIS was finalized. It imposed “detailed mitigation measures to minimize impacts” of Resolution’s mining activities. At 2,702 pages — six volumes in all — the document is almost absurdly thorough.

No matter. The usual suspects went nuts. U.S. Representative Raúl Grijalva (D., Ariz.) called the FEIS a “politically motivated travesty of justice.” The Western Values Project howled about “devastating industrial development that would destroy cultural and sacred land.” The Sierra Club announced that it remained “in solidarity with Native leaders” and was “committed to protecting these precious lands.”

Luckily for Resolution’s opponents, Trump departed Washington a few days later, and within weeks, the Biden administration “directed the Forest Service to . . . rescind the FEIS.” In addition, the administration “proceeded with re-initiating government-to-government consultation with Tribal Nations to fully understand concerns raised by the Tribes and the project’s impact to tribally important and sacred resources within the project area.”

Slow-walking by the executive branch is one threat to Resolution’s prospective mega-investment. Lawfare is another. In January 2021, Apache Stronghold, “a 501(c)3 nonprofit community organization of individuals who come together in unity to battle continued colonization, defend Holy sites and freedom of religion, and are dedicated to building a better community through neighborhood programs and civic engagement,” filed a First Amendment challenge. The suit was shot down by a federal judge in February 2021, a decision upheld by a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit 16 months later. In March, the full court heard arguments in the case.

“Religious liberty” as a justification to block Resolution has a superficial appeal, but the claim quickly withers under scrutiny. Perhaps “a San Carlos tribal member and Apache historian” offered the strongest refutation. Dale Miles inconveniently noted that in 1970, when Magma “built a mine shaft . . . that you can see from the passing highway,” there were “no protests, no publicity of any kind,” and “never any statement made by tribal members or tribal leadership.” The historian wrote that it was not “until recent years that the site . . . was called sacred in any kind of way.”

Moreover, Apache Stronghold’s case is all but obliterated by the U.S. Supreme Court’s ruling in Lyng v. Northwest Indian Cemetery Protective Association. Written by Sandra Day O’Connor, who was raised in Arizona, the decision held that a government action that does not coerce individuals into “violating their religious beliefs” and does not “penalize religious activity by denying any person an equal share of the rights, benefits, and privileges enjoyed by other citizens” is not a violation of the First Amendment. Joined by four of her colleagues, the justice concluded that “incidental effects of government programs . . . which may make it more difficult to practice certain religions but which have no tendency to coerce individuals into acting contrary to their religious beliefs” are allowed.

Resolution Copper now waits, again, for a court to decide if it can proceed with a mine with the potential to produce “up to one quarter of the nation’s copper demand.” It also holds its breath while the Biden administration prepares a reworked FEIS. Version 1.0 disclosed that the company would need to obtain no fewer than 29 county, state, and federal permits to start mining. Do you think Version 2.0 will impose a lighter regulatory burden?

Originally published at on April 25, 2023.

By D. Dowd Muska

Dowd brings nearly 30 years of research and writing experience to the Institute. A veteran of several think tanks, he is an expert on government at the municipal, county, state, and federal levels.

Raised on an apple orchard in the Connecticut River Valley, D. Dowd Muska is a researcher, writer, editor, and commentator. His focus is the nexus of fiscal policy, economic development, and technology.

Mr. Muska is the author of numerous policy studies, and his writing has appeared in newspapers throughout the nation, including the Las Vegas Review-Journal, The Detroit News, the Orlando Sentinel, the Cape Cod Times, the Santa Fe New Mexican, the Hartford Courant, the Waco Tribune-Herald, the Albuquerque Journal, the New Haven Register, and The Oklahoman. A graduate of The George Washington University, he lives in the Albuquerque metro area, but has started (very) early planning for a relocation to the Sierra Blanca in Lincoln County, New Mexico. He recently launched the Substack platform No Dowd About It.

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