This was originally published by The Frontier Institute.

It is in refrigerators, traffic lights, lighting fixtures, home furnaces, and plumbing – copper is one of the most important elements that makes today’s technology work. But copper isn’t just needed to make our everyday devices work by themselves, it is essential in generating the power needed to allow our devices to turn on. From wind turbines to natural gas power plants, copper is essential in bringing us the power we need.

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Yet despite its widely acknowledged importance and the abundance of copper reserves around the world, we continue to see a copper shortage. To make matters worse, the large majority of today’s copper mines occur in countries with far less environmental protection than ours. 

So why then did it take a decade to get the initial permit and then another four years of legal battles for the proposed Black Butte Copper Mine near White Sulphur Springs–boasting state-of-the-art environmental protections–to finally secure its operating permit?

A major reason is that despite our strong environmental protections, a small number of radical groups have managed to hijack our permitting process, seriously delaying or preventing responsible mines–ironically deepening our dependence on irresponsible mining in other countries.

Background

In 2010, Tintina Montana (sometimes referred to by its majority shareholder, Sandfire Resources) acquired mineral rights for 1,888 acres of private land in Meagher County. With the discovery of high-grade copper on the property, Tintina spent the next 5 years gathering data, conducting tests, identifying and planning for all possible scenarios, consulting scientists and engineers.

Drawing from laboratory tests conducted on the would-be tailings, extensive water quality monitoring and analysis, independent meta-analysis of case studies from research around the world, and the expert analysis of a working group, the resulting proposal would create arguably the most environmentally responsible mine in Montana’s history.

The strong environmental protections went as far as including everything from a reverse osmosis water treatment plant to a Cemented Tailings Facility widely acknowledged to be very expensive but enabled the “highest level of tailings safety management,” going well beyond the 2017 United Nations zero-failure standards report.

With a proposed plan in place, Tintina submitted a mine operating permit application to the Montana Department of Environmental Quality (DEQ) under the Metal Mine Reclamation Act (MMRA) in December 2015. 

Far from rubber-stamping the application DEQ went through an extensive project review, sending back the application for revisions from Tintina on three different occasions. When finally completed the administrative record of the permitting process amounted to nearly 90,000 pages.

In 2017, DEQ found the revised application to be sufficient to begin the environmental analysis under the Montana Environmental Policy Act (MEPA). In February 2020, DEQ issued its final Environmental Impact Statement (EIS) totaling 1052 pages. Two months later, on April 9th, DEQ issued its decision to permit the mine with the modification that additional mined-out voids be backfilled with cemented paste tailings. 

Lawsuit 

Despite being touted as the “most stringent [permit] ever issued for a hard rock mine in Montana,” six groups filed suit on June 4, 2020, disputing the permit issuance. 

In the suit, the groups challenged DEQ violated MMRA and MEPA when it granted Tintina its operating permit. The three issues brought forward in the suit alleging MEPA violation all revolved around one of the most commonly litigated issues in all MEPA cases: Was the MEPA analysis adequate?

On April 8th, 2022, District Court Judge Katherine Bidegaray ruled that DEQ had violated MMRA and MEPA when it granted an operating permit to Tintina. While the decision did revoke the mine’s operating permit, a subsequent remedy allowed Tintina to begin Phase 1 of the project while they appealed the decision. 

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On February 26, 2024, the Montana Supreme Court issued a 5-2 decision overturning the District Court’s ruling, reinstating the Department of Environmental Quality’s decision to grant Tintina a permit, stating that “DEQ made a scientifically driven permitting decision that was supported by substantial evidence.”

*It should also be noted that the same groups have filed a separate suit regarding the Black Butte Copper Mine’s use of water under the Montana Water Use Act. This suit is currently pending a decision before the Montana Supreme Court.

The Impact

While MEPA was intended to help improve the environment, examples like the Black Butte Copper Mine show how in practice MEPA actually harms projects that are necessary for addressing our biggest environmental challenges.

The copper to be mined from Black Butte is not only essential to everyday devices we use, but it is also a vital element in global efforts to reduce emissions, improve the environment, and combat climate change:

• According to a 2023 McKinsey & Company report, the push for electrification is projected to increase annual copper demand to 36.6 million metric tons by 2031–that is 6.5 million metric tons more than projected capacity will allow.
• Renewable energy, such as wind and solar, use 4 to 6 times more copper per megawatt than a fossil fuel power plant. Transitioning a majority of energy production from fossil fuels to renewables, as advocated for by Montana environmental activists, will require a lot more copper.
• For countries to meet their climate goals, the world will need to add or replace 49.7 million miles of transmission lines by 2040. Copper, along with aluminum, is essential to building out the grid to accommodate electric cars, solar power, etc.
• Around 50% of the global copper supply is currently being mined in nations classified as ‘unstable’ or ‘extremely unstable,’ many of which have few environmental protections. For example, Chile, the global leader in copper mining has engaged in egregious environmental destruction, including directly dumping tailings into the ocean. Reducing the world’s reliance on these nations will require more copper from responsible mines in the United States.

Despite the critical role copper plays in environmental progress and a proposal for the most responsible copper mine in Montana history, a small number of radical groups were able to hijack our permitting process and block Black Butte for years.

MEPA-fueled litigation not only ties up projects in the courts but also forces agencies to expend considerable time and resources on crafting even more lengthy litigation-proof environmental analyses to preempt future legal challenges, further delaying vital projects.

It’s imperative that we reform the environmental permitting process to strike a better balance between environmental protection and responsible resource development.

Tanner Avery is the Director for New Frontiers at the Frontier Institute.

The views and opinions expressed are those of the author’s and do not necessarily reflect the official policy or position of C3.