Permitting Reform and Responsible Mining: Q&A with IRMA’s Kristi Disney Bruckner

Mined materials are in the products we use every day—our cars, jewelry, phones, laptops, and buildings—and technology for the energy transition means that more of these materials are needed for wind, solar, and electric vehicles. Yet mining is one of the few industries that predictably leaves centuries of impacts. It can also bring prosperity, locally and globally, but we need to ensure that harm is minimized and benefits are assured. Many of the technologies needed to do this right are available now. We also need laws, market value, and ethical drivers to make responsible mining a consistent expectation.

The Initiative for Responsible Mining Assurance (“IRMA”) is a multi-stakeholder organization formed in 2006 in response to global demand for greater social and environmental responsibility in the mining sector. The IRMA Standard for Responsible Mining, first published in 2018, is used for independent audits of environmental and social performance at the mine-site level. The IRMA audit process engages affected communities, Indigenous rights holders, workers, and other stakeholders and rights holders at the site level. It results in detailed public audit reports covering a holistic set of topics for industrial scale mines. 

IRMA is credible across sectors due to its robust Standard, its transparent audit reports that measure mining operations against that Standard, and its unique governance model that gives equal voting authority to each of six sectors: mining companies, companies that purchase mined materials, non-governmental organizations, affected communities, organized labor, and investment and finance.

The IRMA Standard reflects four key elements of responsible mining: business integrity, planning for positive legacies, social responsibility, and environmental responsibility. IRMA audits result in one of four achievement levels based on a site’s level of meeting IRMA Standard requirements: IRMA Transparency, IRMA 50, IRMA 75, or IRMA 100.

Kristi Disney Bruckner is the Law and Policy Director for IRMA. She also serves as an adjunct professor at the University of Denver Sturm College of Law and University of Arizona Law, teaching courses on climate change law, sustainable development and international trade, and community engagement. Ms. Bruckner provided answers to some questions posed by Womble Bond Dickinson concerning the relationship between permitting reform and responsible mining.

1. When IRMA considers responsible mining, what is required to have mining occur in a responsible manner? Are there some elements of responsible mining that are fundamental?

IRMA was formed as a product of over 10 years of multi-stakeholder discussions and broad engagement to answer the question, “What is responsible mining?” The answer is the IRMA Standard for Responsible Mining. Comprised of 26 chapters and over 400 requirements, the IRMA Standard provides holistic coverage of the wide range of criteria necessary for responsible management of the mining sector.

IRMA’s multi-stakeholder board has identified 40 requirements from the IRMA Standard as “critical requirements” that any site claiming to follow good practices in mining should meet. These cover topics including:

• Compliance with host country laws, 
• Meaningful engagement with stakeholders and rights holders, 
• Respect for internationally recognized human rights, 
• Stakeholder access to an operational-level grievance mechanism, 
• Anti-bribery and anti-corruption measures, 
• Environmental and social impact assessment and management, 
• Obtaining the Free Prior and Informed Consent (FPIC) of Indigenous Peoples, 
• Emergency response planning, 
• Mine closure requirements, 
• Respect of workers’ rights, including freedom of association,

and more.

2. The IRMA Standard takes as a premise that a mining operation will comply with local government permitting requirements.  But that mining operation must also meet a wide range of other requirements in the IRMA Standard. In your experience, how often are existing permitting requirements and related legal frameworks insufficient to assure responsible mining? Is that an issue in the United States?

We haven’t yet seen a legal framework in the U.S. or elsewhere in the world that aligns with all requirements in the IRMA Standard. Even where there are strong legal frameworks in place, there are challenges with implementation, including in remote mining regions of both developed and developing countries. As a voluntary standard IRMA isn’t a replacement for the important role of governments in establishing and implementing legal frameworks. The IRMA Standard serves as a useful benchmark for assessing and improving legal frameworks and complements the role of government by bringing market recognition to mines demonstrating commitment to improving practices.

While we haven’t undertaken a comprehensive review of the U.S. legal framework governing the mining sector, we have completed a high-level overview to inform the U.S. Department of the Interior Interagency Working Group on mining reform. We identified gaps around community engagement requirements, environmental and social impact assessment and management, grievance mechanisms and access to remedy, FPIC, community support and benefit sharing, emergency preparedness, planning and financing reclamation and mine closure, waste management, water management, and others. A detailed assessment of the U.S. legal framework against the IRMA Standard prepared by an independent, external party would be a helpful tool for the U.S. Government in this mining law reform process and should be based on experience across all stakeholders and rights holders affected by mining.

When it comes to permit requirements specifically, we haven’t done a detailed assessment of U.S. requirements. However, there is relevant guidance informed by IRMA, such as the Intergovernmental Forum on Mining, Minerals, Metals, and Sustainable Development (IGF) Guidance for Governments on Improving Legal Frameworks for Environmental and Social Impact Assessment and Management and the IGF Mining Policy Framework and related Guidance. The U.S. has been an IGF member since 2021 and has taken on increasingly active roles in this 84 Member body in recent years.

It will be valuable to see results of IRMA audit reports against mine sites in the U.S. Sibanye-Stillwater has stepped up to engage its U.S. Platinum-Group Metal (PGM) site in an IRMA audit. We look forward to other U.S. mine sites following this lead and engaging in IRMA audits and reporting. The U.S. legal framework places many demands on mine operators, and they can transparently share this work they are already doing and how they are improving through IRMA audits.

3. One of the key concerns voiced about permitting reform is that a streamlined permitting process will lead to inadequate review or control of mine operations. Is it possible to improve the efficiency of mine permitting without creating a risk of irresponsible mining operations? What are the key factors to consider when creating an efficient permitting system that preserves and promotes responsible mining?

One of the topics addressed in the IGF Guidance for Governments I mentioned is the need for efficient and effective interagency coordination and review of permits. While we see efforts underway to create greater efficiencies and collaboration within the U.S. Government and between the Government and relevant stakeholders and rights holders, there is much more work to be done that could prevent timelines from approaching multiple decades for final approval.

What is also clear is that the timelines for engaging with communities and Indigenous rights holders in the NEPA process and beyond must be adequate; attempts to fast track or expedite any processes related to meaningful stakeholder engagement and consultation may only be detrimental to the future of a mine project due to lack of social support for the project to go forward. In short, expediting these social processes can become a source of conflict and deepen distrust. Furthermore, the IGF Guidance provides multiple examples of how lack of social support and lack of Indigenous consent can lead to costly arbitration and litigation when a permit has been approved without consent and social support. It is therefore important for many reasons to carefully balance timelines, related requirements, and coordination across government actors, stakeholders, and rights holders to prioritize getting this right.

4. In the United States, the National Environmental Policy Act (NEPA) is often used as a weapon to delay and perhaps defeat a proposed mining project. Could NEPA litigation be curtailed without creating a risk of less responsible mining?

One of the aspects of IRMA that makes it attractive to governments, companies, and investors is the possibility that implementing responsible mining practices across the holistic set of topics applicable to industrial-scale mining can be a valuable tool to reduce risk. It is all too easy to focus on one set of issues only to overlook others or to otherwise fail to have an objective assessment when deep into the day-to-day operations. IRMA is helpful both for establishing a comprehensive framework and for the opportunity to have an independent third-party assess site performance.

When it comes to environmental impact assessment processes, NEPA and others, this is one of many aspects of responsible mine management. NEPA is one tool for people concerned about the impacts of mining to be heard and it is a tool to inform decisions. NEPA, like many other legal frameworks, can be improved both on the books and in practice. What is needed to reduce litigation is to rebuild broken trust through greater transparency and meaningful, proactive engagement with communities and Indigenous rights holders. If there is fierce opposition to a project and NEPA no longer serves as a useful tool for community engagement, project opponents will find other avenues to express their opposition. This is one reason that the IRMA Standard includes requirements that go beyond permit requirements to ensure that engagement of stakeholders and rights holders continues throughout the life of a mining project and is not a one and done exercise that is confined to the permitting process.

5. Part of the focus of permitting reform arises because the energy transition requires a lot of new mining, and permitting delays create a risk that we will miss the Paris Agreement targets because we lack the materials necessary to implement the energy transition. What needs to be done to assure that we have sufficient metals to accomplish the energy transition in a responsible manner?

Action on climate may be the greatest opportunity the international community has ever had to get management of the mining sector right. Having worked on natural resource and sustainable development issues for almost 25 years now with a focus primarily on mining and sustainable development, I have never seen the level of political will across governments that exists today both to improve mining practices and to highlight the importance of the mining sector.

Last December IRMA was an Official Observer at the United Nations Framework Convention on Climate Change (UNFCCC) Conference of the Parties in Dubai (COP 28), where the UN Secretary-General António Guterres announced a new Panel on Critical Energy Transition Minerals that will develop principles to guide extractive industries. We now have the leader of the United Nations connecting the dots between the importance of mining sector management and action on climate at the biggest gathering on climate in the world. IRMA has agreed to participate in the Secretary-General’s panel alongside civil society, Indigenous, and developing country leaders because we believe that robust standards are necessary and should be informed by all sectors we’re accountable to at IRMA.

When focusing on extraction of a non-renewable resource it is especially important to optimize sustainable development outcomes. This requires consideration of both current and future generations, respect for the rights of Indigenous Peoples, workers, affected communities and the environments on which they depend, and addressing inequalities between and within developing and developed countries.

In the U.S., for mine permitting reform to address delays we need three things: First, we need to fully fund and staff government agencies so that they can provide efficient and prompt service to mining applicants and concerned communities and rights holders through all stages of mining including economic, social, and environmental aspects of the post-mining transition. Second, we need transparency in the permitting process so that there is greater awareness of where permits are in the process and who is influencing the process. Third, permit applications must be complete and comprehensive; some permit delays and litigation are because applications are incomplete in one or more essential aspects and this may cause concern, especially if there are weaknesses in the face of regulations like the Clean Water Act, National Historic Preservation Act, Endangered Species Act, or other key U.S. regulations.

In the U.S. and internationally, IRMA is widely recognized as the most comprehensive standard for the mining sector and while we set a high bar, we have seen through IRMA audits that our requirements are practical for industrial-scale mine sites of all sizes to meet. While we haven’t seen one site achieve all IRMA requirements, we have seen that all requirements have been met by at least one site. This gives me confidence that responsible mining is possible.

I’m also encouraged that there is greater global focus on responsible mineral processing that incorporates responsibly sourced scrap and recycled material, strategies to reduce emissions, and enhanced transparency that is so important to tracking and tracing supply chains. A wide range of strategies are needed to move toward a circular economy; reducing waste and recycling are only part of the equation. We will need new mineral development for the foreseeable future to achieve climate targets and to have a chance at making supply chains circular. Where mining does take place, IRMA is a tool for maintaining a shared definition for responsible mining, enhancing transparency on site level practices, and the deep cross-sector engagement needed to get mining sector management right.