Authors

Griffin M. Krawitz, William & Mary Law School

The Undue Degradation of "Undue Degradation": How Loper Bright Threatens to Weaken Environmental Protections for Domestic Lithium Operations

Abstract

On October 24, 2024, the Bureau of Land Management (BLM) approved the Rhyolite Ridge Lithium-Boron Project, a seven-thousand- acre mining operation in the middle of the Nevada desert. Denoted as the “first domestic lithium project to get full regulatory approval under the Biden Administration,” the new mine is projected to supply enough batteries to power roughly 370,000 electric vehicles (EVs) every year for the next twenty-three years. Despite concern that the mine parallels and threatens the habitat for the Tiehm’s buckwheat (the only known habitat containing the critically endangered and culturally significant flower), the BLM has been adamant that its environmental analysis of the impacted land was sufficient “to ensure [that] we protect species as we provide critical minerals to the nation.” To address the country’s shortage of crucial minerals needed for battery development, the federal government has begun focusing on expanding its domestic mining capacity of lithium and other “critical minerals” to reduce the country’s “strategic vulnerability for both its economy and military to adverse foreign government action, natural disaster, and other events that can disrupt supply of these key minerals.” As a result, the Biden administration invested billions of dollars to bolster the country’s lithium supply chain, including around three billion dollars towards developing domestic lithium mining and related operations for precious earth minerals production, primarily focusing on mines in Nevada, Arizona, and California.

The decision to increase domestic mining operations is not without critics, particularly those concerned about the significant harm that lithium mining operations can cause to the environment. Environmental organizations have criticized the federal government over the last several years for failing to ensure that new mining operations conduct themselves in an environmentally conscious manner, leading to expansive agency approval of new mines despite potential concerns. If a future presidential administration wanted to respond to those criticisms and impose stricter environmental regulations on lithium mining operations, an efficient and practical solution has traditionally been to turn to the administrative state. Indeed, agency rulemaking is often viewed as a particularly effective option when faced with congressional inaction. However, recent Supreme Court decisions have placed the BLM, the primary agency handling mining claims found on federal land, on uncertain grounds at a critical juncture in which effective and stable regulations are necessary to balance evolving national and international economic pressures with adequate environmental protections.

This Note will argue that the Supreme Court’s Loper Bright Enterprises v. Raimondo decision—which effectively removes judicial deference to agency determinations related to statutory interpretation—endangers the BLM’s interpretation of its unique statutory mandate within the Federal Land Policy and Management Act of 1976 (FLPMA). Part I of this Note will provide background information regarding the current economic landscape and global supply chain for lithium mining. Part II will examine the current administrative regulatory scheme that dictates hard-rock lithium mining before detailing the challenges this structure faces since the Loper Bright decision. Finally, Part III will discuss the next steps for courts in their inevitable review of the BLM’s statutory interpretations and proffer some strategies the BLM should implement to expand its environmental protection capabilities, helping to ensure that the “clean energy transition” is, in fact, as clean as possible. Despite the risk that the BLM faces in losing its ability to modify its interpretation of its FLPMA obligations, now is the time for the BLM to act proactively and make the change itself.

This abstract has been taken from the author's introduction.

Repository Citation

Griffin M. Krawitz, The Undue Degradation of "Undue Degradation": How Loper Bright Threatens to Weaken Environmental Protections for Domestic Lithium Operations, 67 Wm. & Mary L. Rev. 881 (2026), https://scholarship.law.wm.edu/wmlr/vol67/iss3/7