The Environmental Plaintiffs (WWP) filed their final arguments on 12th July. The Defendants (BLM/LAC) are due to file their final arguments by 11th August. For those that are interested, here is my take on the WWP arguments, the likely BLM/LAC counter arguments, and how this case might play out. This does not include the Bartell final arguments (also filed on 12th July), which mostly deals with groundwater.

WWP argue the waste rock and tailings dam are located on mineral claims that are invalid (i.e. no “valuable mineral deposit” has been found), therefore LAC has no “valid existing right” to occupy that area, consequently the BLM should have applied the relevant Resource Management Plan (ARMPA) regulations is assessing the Project.

Note that validity of the mineral claims (and the “valid existing rights” attaching thereto) in the area of the mine pit and the processing plant are not, and never have been, in dispute.

BLM/LAC have previously argued the mineral claims in the area of the waste rock and tailings dam are valid (i.e. there is a valuable mineral deposit and/or the mining claims are defacto valid until proven otherwise), and/or the BLM did not need to determine validity of rights in issuing the ROD.  Either way, BLM/LAC have argued LAC has a “valid existing right” to occupy all of the Project area, and the ARMPA regulations don’t apply.

There is some complexity in these issues, but based on the Rosemount case (very recently affirmed on Appeal), which I have reviewed and which is similar, I believe the odds favour WWP prevailing with their argument. In fact, I would not be surprised if BLM/LAC de-emphasise this argument prior to filing their final arguments, so as to focus on other arguments.

Let’s assume the requirements of the ARMPA must be complied with, at least with respect to the waste rock and tailings dam. An objective of the ARMPA is to “avoid and minimise” adverse environmental impacts. WWP argue the BLM failed to do this (thereby violating federal law), because certain ARMPA conditions have not been complied with, particularly with respect to Sage-Grouse habitat.

That certain conditions of ARMPA have not been complied with (3% disturbance cap, lek buffers, seasonality restrictions, noise limits) is not in dispute. However, when assessing compliance with ARMPA, the BLM/LAC is entitled to take compensatory mitigation into account (ARMPA: “The BLM will consider compensatory mitigation actions … when offered … (or) required by the State of Nevada”).  The BLM is also entitled to deference when interpreting and implementing its own RMP’s.  With respect to Sage-Grouse, potential impacts will be mitigated through the adoption of the Sagebrush Ecosystem Technical Team (SETT) mitigation plan, as required by the State of Nevada, to deliver a net conservation gain.  WWP argue the SETT mitigation plan should be disregarded because the ROD does not require LAC to adopt the plan (“… LAC will continue to consult with … SETT”), but this is disingenuous and ignores that the BLM is prohibited by law from requiring a mitigation plan, it can only be offered by the applicant (which it has), or required by State law (which it is). Further, “continue to consult” with SETT to develop the plan is a ROD Condition of Approval – i.e. without continuing consultation or an agreed plan, there is no ROD approval. I believe the odds favour BLM/LAC prevailing in this argument.

WWP make other arguments regarding impacts to other wildlife, water and air quality, and the usual arguments concerning insufficient “hard look”, “cumulative impacts” and “public review”. I couldn’t see anything of substance in those arguments that would amount to a violation of federal law.

If the BLM has complied with ARMPA (which I believe it has), federal law has not been violated, the ROD stands, and the Project can proceed. If I am wrong, and the Court finds federal law has been violated in some manner, vacating the ROD is not an automatic remedy (although it is usual). The Court must also consider public interest in determining remedy. In my view, the public interest in this Project proceeding is considerable, given lithium has been declared a critical mineral for US national and economic security, and as evidenced by the DOE accepting a loan application from LAC under the LTVM Loan Program. Admittedly a subjective assessment, but I am also of the view the public interest in the project proceeding is far greater than the (mitigated) environmental impacts. The public interest would not, in my view, be served by vacating the ROD.  Again, I don’t believe it will come down to this.

This is all in my opinion. The relevant law in some areas is not clear, and it’s difficult to summarise all arguments in just a few paragraphs. Importantly also, I am not a lawyer, and being “long” LAC I have a significant financial interest in the Project proceeding. My conclusions should be viewed through those lenses.  But because I do have a significant financial interest, I have invested the time and energy to follow this case and carefully weigh up the arguments.

Anyway, I am interested to know what others think, especially from those that don’t agree with me. In the meantime, I eagerly await the BLM/LAC final arguments.