In the latest article from our Striking the Balance: Permitting Reforms for Mining and the Energy Transition series, we explore the EU’s recent efforts to streamline the mine permitting process via the Critical Raw Materials Act, signed by the European Parliament in April of this year.
The Russian invasion of Ukraine hastened efforts globally to transition to a more secure, diversified, and affordable supply of energy. In the EU, the REPower EU policy added new measures to the Green Deal to reduce dependency on Russian gas and promote investment in renewables through the Green Industrial Action Plan. The Plan, seen as the EU equivalent to the United States’ Inflation Reduction Act, will support the EU's own clean tech industry and supply chains.
A key element of the Plan is the regulation establishing a framework for ensuring a secure and sustainable supply of critical raw materials, widely known as the Critical Raw Materials Act (CRMA). Signed on the 11th of April by the European Parliament and the Council, the CRMA will create a secure, diverse, and sustainable supply of the critical raw materials that are important for renewables technologies. The CRMA identifies a regularly reviewed list of 34 critical raw materials, 17 of which are considered strategic. The Act stipulates that no more than 65% of EU's annual consumption of the 17 strategic metals should originate solely from a third country. This is the first of the four benchmarks the CRMA sets to build a resilient and autonomous supply chain for the EU. The three additional benchmarks are: Forty percent of these critical minerals must be processed in the EU, 25% must be sourced from recycling, and 10% must be derived from local extraction either as a main product or as by-product.
Accelerated Permitting
To achieve the 10% local extraction target, the CRMA introduces a streamlined and predictable permit-granting process to help project developers - or “project promoters”- navigate the national mining permit maze. The process is designed to fast-track permits through a single permitting authority and expedited administrative and – where available – dispute resolution system. This priority status applies only to strategic projects (i.e., projects that extract strategic raw materials). As a counterbalance to expedited permitting, the CRMA includes provisions to safeguard proper, effective, and meaningful engagement with the public, local communities and, where relevant, indigenous people. The Act also seeks to promote social value, inclusiveness, and sustainability throughout the lifecycle of the project.
To achieve the 10% local extraction target, the CRMA introduces a streamlined and predictable permit-granting process to help project developers - or “project promoters”- navigate the national mining permit maze.
The key elements of this balanced approach are (i) a clear definition of “strategic projects,” (ii) giving those project priority status, (iii) providing a single point of contact for approval of the strategic project, (iv) embedding environmental review, public participation, and sustainability in the approval process, and (v) creating spatial plans and zoning frameworks to facilitate review of strategic projects.
Strategic Projects
The CRMA details several criteria that will be used to determine the strategic nature of a mining project including a determination of meaningful contribution to the security of supply of strategic raw materials, technical feasibility within a reasonable timeframe and with sufficient volumes of production, sustainable implementation with plans to engage local communities and indigenous people, prevention and minimisation of adverse impacts to human rights and indigenous people, job creation, and the employment of best business practices to inhibit corruption and bribery.
For a project to get the strategic status, the project promoter must file an application with the European Commission that includes relevant evidence the project meets the criteria outlined above. Following an opinion of the European Critical Raw Materials Board – a new advisory body established by the CRMA – the Commission will decide to grant special project status if the Member State (or the third country or overseas territory) where the project is located does not object to development. The Commission has the power to repeal the status if any of the conditions are no longer fulfilled or in case of falsely submitted information or evidence.
Priority Status
Strategic projects benefit from a priority status, or a status of "highest national significance possible" in the national permitting procedure. They will receive rapid treatment by national authorities through the avoidance of duplication of studies or permits unless otherwise required by EU or national law. Strategic projects will also be considered as projects of overriding public interest. Although they may have negative impacts on the environment especially due to the lack of alternative locations, they will still be allowed provided the conditions set in the Habitats (92/43/EC), Water (2000/60/EC) and Birds (2009/147/EC) Directives or in the upcoming Nature Restoration Regulation are met.
The overall time to build and operate the project shall take no longer than 27 months which can be further extended by 6 months for more complex cases. This timeframe does not include the time to conduct the relevant environmental impact assessments which are the responsibility of the project promoter. Other obligations under Union or International law may further delay the 27-month deadline. Finally, the streamlined process will be fully online and easily accessible online via the Single Digital Gateway Regulation.
Single Point of Contact
The commitment to streamline permit-granting for any critical raw mineral project falls on the authority designated by the EU Member States Regulation. This “one stop shop” entity will assist the project promoter and will coordinate and facilitate the process and provide relevant information on key elements of the permitting process.
Member States may have more than one of these single points of contact, and those permitting authorities can be a new entity or an existing authority at local, regional, or national level. Member States must ensure that these points of contact have sufficient human, financial, technical, and technological resources to exercise effectively their duties, and that project promoters work with a single entity whose details and relevant information must be easily accessible online.
Environmental Assessments, Public Participation, and Sustainability
In addition to the status of overriding public interest mentioned above, the time to complete environmental assessments should be minimized for strategic projects. For example, a decision on "screening" under the Environmental Impact Assessment (EIA) Directive (2011/92/EU) should be made in 30 days rather than a previous timeframe of 90 days. Equally, the maximum time for public participation in the EIA process should not exceed 85 days. These deadlines may be further extended depending on the complexity of the project. In the effort to simplify authorisations, the various assessments under the EIA, Water, Birds, Habitats, Industrial Emissions (2010/75/EU), Waste Framework (2008/98/EC) and Seveso III (2012/18/EU) Directives should be bundled whenever possible.
In addition to the status of overriding public interest, the time to complete environmental assessments should be minimized for strategic projects. All these exceptions operate under the caveat of the Union's international obligations.
All these exceptions operate under the caveat of the Union's international obligations. The requirement to explore the transboundary significant adverse impacts of a project under the Espoo Convention and the Kyiv Protocol (UNECE Convention on environmental impact assessment in a transboundary context and its Protocol on Strategic Environmental Assessment) still applies. Equally, the Aarhus Convention requirements (Convention on Access to Information, Public Participation in Decision-Making, and Access to Justice in Environmental Matters) should be respected.
Finally, the CRMA requires project promoters to provide meaningful and effective access to information and public participation of affected communities (e.g., websites) on the project, dedicated campaigns, and mitigation and compensation measures. Plans with these details and even more specific plans for indigenous communities - if affected - must be filed to obtain strategic status. Actions and plans to improve/restore the environmental state of affected sites for projects in overseas community territories or third countries and work plans to employ, reskill, or upskill workforce will enable promoters to meet their ESG objectives.
Spatial Plans and Zoning
The CRMA encourages Member States to include provisions for the exploitation of critical raw minerals in spatial plans or zoning projects. As these plans are subject to strategic environmental and other assessments, this is likely to help in further streamlining the permit-granting process.
Will the CRMA Indeed Accelerate Extraction Permitting?
The CRMA permit-granting process attempts to tackle two major bottlenecks for critical raw mineral mining projects: fragmented and complex administrative procedures and the participation of the public and affected communities.
EU Member States have adopted fast-tracking procedures and one-stop-shops in the past. The success of these changes depends heavily on the adequacy - as is indeed pointed out in the CRMA - of the single point of contact authorities and entities. Fast-tracked projects are complex. A requirement under law to deal with them quickly within a specific timeframe and by squeezing environmental or other assessments may not practically accelerate the permitting process absent the necessary resources.
Despite requirements for plans to address community, human, and indigenous rights impact, and to comply with the Aarhus and the Espoo Conventions, civil society groups have criticised the CRMA for compromising their rights and environmental protection. Minimising public opposition is key to the success of these projects. The transition to net zero must be just. Transparency and purposeful and meaningful engagement with the public and affected communities are paramount for project promoter success.
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