To the Moon and Back – Mining for the 21st Century

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“As mineral deposits are increasingly being found in areas that present technical, political, or environmental challenges, miners are looking to extraterrestrial and deep-sea resources. Presently, mineral development is being considered at the bottom of the oceans and outside of our planet, either on the moon, other planets, or asteroids.”

So began the Mining Law Summit 2019 on November 8, 2019 at the University of Arizona’s James E. Rogers College of Law. The mining summit is an annual event at the College of Law.  Organized by Professor John Lacy, it brings together industry and academia to discuss trends and issues within the industry.  Last year, the topic revolved around health and safety. This year it focused on outer space and the deep sea.  Last year, the mood was somber; with discussion centering on mining disasters, how to prevent them, and lessons learned.  This year, the optimism was palpable. From the beginning, conversations amongst several of the attendees centered on the exciting opportunities that space mining presented; one spoke about how fortunate she was to be there, about how her small firm represented a local mining company that might potentially be interested in exploring possibilities.  In none of the overheard conversations was there mention of environmental concerns. 

Harrison Schmitt, an Apollo 17 astronaut, former New Mexico Senator, geologist, adjunct professor at the University of Wisconsin, and the only civilian to set foot on the moon, spoke about the challenges of development of lunar mineral resources, and the challenges for recovery, processing, and uses of Helium-3, a light, non-radioactive isotope which could be potentially used as an energy source, because fusing helium-3 atoms release large amounts of energy without the resulting radioactivity most other nuclear fusions create.  Mr. Schmitt spoke at length of the background governing space law: the 1967 Outer Space Treaty, the 1979 Moon Agreement, the 1988 ISS Agreement, maritime law, national mining law, and the Antarctic treaties of 1959, 1988, and 1991 among others.  The most important aspect of the 1967 Space Treaty is its permissiveness with regard to access to space resources; private, government, and international initiatives are equally permissible.  However, private enterprise must be sponsored by any of the parties to the treaty in order to exploit these resources. The 1979 Moon Agreement, on the other hand, requires an international management structure to be in place.  As Mr. Schmitt pointed out, it has not been ratified by any state that engages in self-launched human spaceflight or has plans to do so since its creation in 1979, therefore it has little to no relevancy in international law. In Mr. Schmitt’s words, it is “anti-free enterprise” by nature.  Throughout his presentation, and the one to follow, I was reminded of that old cartoon about space exploration, rockets to the moon, hotels, billboards; all visible from earth, all symbols of mankind’s might.

Next, Stephen Fleming, the Vice President for Strategic Business Initiatives for the University of Arizona, spoke of his love for space exploration – so much so, that he has financed multiple space startups since 2000. He stated he believes that space exploration has become stagnant in the last 40-plus years and it is high time we do something about it. He argued that the moon, were it an earth territory, would constitute the eight Continent, second in land mass only to Asia, greater than Africa. An unexplored territory with untold resources, potentially valuable and largely untapped. He further spoke of the possibilities for exploitation of “permanently shadowed craters” on the moon, full of ice, which could become water to irrigate crops, hydrogen for fuel, oxygen to breathe, or chemical feedstock.  Not only ice is present on the moon; there is also iron, aluminum, titanium, and other elements to be mined.  All valuable resources; “we just have to go there and get [them],” he said, conjuring images of white colonizers, exploring and exploiting Africa, Asia, the Americas, of cowboys claiming lands, open space, the gold rush.

Above all, Mr. Fleming was excited about the possibility of space mining.  However, two treaties stand in the way of the United States claiming a stake.  As stated above, the 1967 Outer Space Treaty’s language limits the exploration and use of outer space to the province of all mankind, and also forbids the installation of military bases.  In what Mr. Fleming called “insidious language,” the Moon Agreement deems the moon and its natural resources to be the common heritage of mankind, forbidding private ownership of lunar resources, and requiring an international regime for sharing benefits. While the United States signed the 1967 Space Treaty, it did not sign the Moon Agreement.  Under the Space Treaty, peaceful scientific exploration is specifically permitted, and military or national sovereignty is specifically forbidden, while commercial exploitation of resources is open to interpretation.  The United States, along with a few other countries, are of the opinion that “what is not forbidden is permitted,” while the European Union, and others, believe that “what is not permitted is forbidden.”

Mr. Fleming also highlighted current US policy and the US Commercial Space Launch Competitiveness Act of 2015, which seeks to facilitate commercial exploration for, and commercial recovery of space resources by US citizens, discourage barriers to the development of economically viable commercial exploration and recovery of space resources, and to promote the right of US citizens to engage in commercial exploration and recovery of said resources, and speculated about the possibility of human settlements on the moon, and the potential value of lunar “real estate. ”  He spoke as well of costs associated with the exploitation of said resources, and the difference in costs if transported back to Earth vs. mined for use there.  At the same time, he recognizes the speculative nature of what resources are actually there and a lack of demonstrated commercial viability of fusion power. However, he insists, we must “recognize industry’s imperative to exploit resources versus ‘the patrimony of people’ based on the Mining Law of 1872, which claims ownership of the mined minerals, not the surface.”

Later, Dr. John Wiltshire, from the Department of Ocean and Resources Engineering at the University of Hawaii spoke of deep-sea mining and the availability of resources. Speaking of the advantages of deep-sea mining, Dr. Wiltshire pointed to a reduced waste of topsoil above the mined material (also called overburden of removal), higher grades of metals at sea, the possibility of obtaining three or more metals in one site, and the lack of human populations. He explored at length the different technologies available for deep-sea mining and provided vignettes on failures and successes, as well as technical challenges. 

He also spoke about the 1994 Law of the Sea, which, similar to the space treaty, is based on the principle that the sea is the “common heritage of mankind,” and which is administered by the United Nations and the International Seabed Authority.  This law, like the Moon Treaty, has not been ratified by the United States.  

Additionally, two US regulations govern undersea mining: the National Legislation for Minerals Leasing, and the U.S. Outer Continental Shelf Lands Act, administered by the U.S. Department of the Interior, which grants competitive and non-competitive leases.  The competitive lease grants rights over oil, gas, and most hard minerals; the non-competitive leases are for the exploitation of sand and gravel for public purposes.  These leases are either negotiated or awarded to the highest bidder at lease sales.  The sales process includes compliance with NEPA, which requires either an Environmental Impact Statement or an Environmental Assessment. 

In his only concession to potential damage, Dr. Wiltshire stated that environmental protections constitute the biggest issue for licensing and that no big private terrestrial mining company is directly involved in deep-sea mining.  The PEW Institute reports that the International Seabed Authority was established to manage mining on the international seabed and to protect the marine environment from its harmful effects, and recognizes that all mining operations, either on land or under the sea, cause environmental damage, citing research that “strongly suggests that deep-sea mining will result in the loss of biodiversity—losses that may be permanent.”  And yet, Dr. Wiltshire believes that “there is vast opportunity on the sea bed . . . [to be] . . . developed,” despite his recognition that, in 2015, only three percent of fines resulting from mining disasters had been paid. 

This was a sentiment echoed by some of the summit’s attendees.  During lunch, I spoke with a professor and a graduate student, both from the Mining and Geological Engineering Department at the University of Arizona. The professor had recently returned from the 2019 Underwater Mining Conference in Sanya City, China, and hoped to bring the next one to Tucson.  The student told me about proposed mining activities in the Sea of Cortez, in the Baja Peninsula, for phosphates identified in Mexico’s Exclusive Economic Zone to be used in Mexico’s agricultural activities.  The peninsula is of ecological importance as it supports a variety of sensitive species; it serves as breeding grounds for gray, blue, and humpback whales, and is home to leatherback, olive ridley, and Pacific black sea turtles.  Because the area serves as breeding grounds to several species of whales,  the project’s Environmental Impact Statement proposes to undertake precautionary measures that include suspension of dredging operations during the main weeks of whale migration, including two weeks before, and two weeks after, the observed peak of migration.  Similarly, the project has undertaken protection measures to minimize risks of entrainment, or unintentional removal, of turtles; the project proposal is to utilize tickler chains and turtle defectors which have successfully been utilized in other projects, as well as establishing a payment scheme for turtle losses in excess of three individuals per year as a result of dredging operations. 

However, groups that oppose such projects, like the Center for Biological Diversity, contend that underwater mining will cause “untold damage,” with little understanding yet of how the industry will affect the seabed’s ecosystem and biodiversity. The Center has opposed this and other projects citing concerns over lax environmental standards, as evidenced by Grupo Mexico’s long history of environmental disasters.  The seabed at mining sites, the Center claims, “will be wiped clean of life . . . directly affecting  . . . basic enzymes and genetic resources.” In addition, there is little regulatory oversight and public scrutiny, with the potential for quick approval by the International Seabed Authority, which issued seven new permits in 2014 prior to the adoption of international environmental standards.

And yet, in the spirit of colonial enterprise, Mr. Fleming stated, in a sentiment echoed throughout the summit, that, similar to the British exploitation of Africa’s resources, if there is “anything valuable, we have to go exploit.”