Best Regulatory Practices for Deep Seabed Mining: Lessons Learned from the U.S. Surface Mining Control and Reclamation Act
Mark S. Squillace, Best Regulatory Practices for Deep Seabed Mining: Lessons Learned from the U.S. Surface Mining Control and Reclamation Act, 125 Marine Pol'y 104327 (2021), available at https://scholar.law.colorado.edu/faculty-articles/1592.
Mining operations around the globe are responsible for significant environmental problems. These problems often stem from poor planning, inadequate regulatory standards, and a failure of regulatory oversight, particularly with respect to inspection and enforcement regimes. Mining regulators are often hamstrung, however, by inadequate information about potential impacts before operations commence. This problem is particularly daunting when considering mining on ocean floors where information about the environment is limited, and the impacts of mining are poorly understood.
As the International Seabed Authority (ISA) develops a comprehensive regulatory program for deep seabed mining, they should draw on the experience gained in regulating terrestrial mining, subject, of course, to the caveat that deep seabed mining poses unique challenges that will require different and sometimes innovative regulatory solutions. In reviewing regulatory programs for terrestrial mining operations, one would be hard-pressed to find a program that is more thorough and creative than that established by the U.S. Surface Mining Control and Reclamation Act (SMCRA). For reasons that are related primarily to the contentious politics surrounding coal mining regulation in the United States, SMCRA has never lived up to its promise. Nonetheless, the law remains largely intact and, despite its implementation challenges, affords a useful framework for thinking about an appropriate strategy for regulating deep seabed mining.
This case study outlines the contours of the regulatory program established under SMCRA insofar as it may be relevant to regulating deep seabed mining. It acknowledges some of SMCRA’s flaws and omissions, and where appropriate, it suggests regulatory practices that go beyond SMCRA. Nonetheless, and despite SMCRA’s limitations, the program established under this law reflects modern thinking about the procedures that should be followed in managing mining activities in challenging environments, and thus offers a useful lens for designing a regulatory program for deep seabed mining.
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Law of the Sea Commons, Natural Resources Law Commons, Oil, Gas, and Mineral Law Commons
Author's post-print version of article.
Published article is available at: https://doi.org/10.1016/j.marpol.2020.104327