Congressional make-believe

“Congress should follow the law.” That statement by U.S. Sen. Tina Smith following the 50-49 Senate vote last week that purportedly overturned a 20-year sulfide mining ban on about 225,000 acres of the Superior National Forest, should be self-evident.
But in the era of Donald Trump, all bets are off and any means is fine if it leads to the ends desired by the corporate interests, in this case Chilean mining giant Antofagasta, currently dominant in our nation’s capital. To be clear, last week’s vote was illegitimate, based entirely on the false premise that the 2023 sulfide mining ban, known as a mineral withdrawal, was subject to reversal by the Congressional Review Act, or CRA, even years after its enactment.
Under the CRA, the Congress has 60 days to vote by a simple majority to overturn a new federal regulation adopted by an executive agency. Once overturned, agencies cannot propose a substantially similar rule in the future.
The mineral withdrawal, however, was approved in 2023 — meaning the 60-day window had expired years before last week’s vote. And it was a federal land order, not a regulation, so the CRA didn’t apply in the first place. Congress and the president could have passed legislation overturning the withdrawal at any time, but that would have required 60 Senate votes to overcome a filibuster. Lacking those votes, supporters of a sulfide mine on the edge of the Boundary Waters Canoe Area Wilderness turned to subterfuge.
The ruse: claiming that the Biden administration had somehow failed to notify Congress as required under the Federal Land Policy and Management Act, or FLPMA, when the ban was enacted in January 2023.
That claim is false. The Biden Interior Department, led by former U.S. Rep. Deb Haaland, followed FLPMA’s notice requirements to the letter. That included submitting a detailed report to Congress and sending personal letters from the Secretary to the chairs and ranking members of relevant committees — and to every member of Minnesota’s congressional delegation, including Rep. Pete Stauber, who served as the chief congressional agent in advancing the scheme that culminated in last week’s vote. We have a copy of that letter.
But in order to give Congress another bite at the CRA apple, Deputy Secretary of the Interior Katharine MacGregor drafted a letter to House Speaker Mike Johnson back in January of this year, which purported to provide notice of the sulfide mining ban for the first time. And, in doing so, MacGregor implied she was restarting the 60-day clock for congressional review under the CRA, which allowed Congress to reverse the three-year-old sulfide mining ban with a simple majority vote.
To reiterate, the mining ban was a public land order, not a rule, and was never subject to CRA review. Even if it had been, Congress was already years past the deadline to act.
None of that deterred the Trump administration or its corporate sponsors. When statutory language doesn’t align with their goals, they simply make up stories that allow them to get around the law. That willingness to fabricate legal justifications for predetermined outcomes is among the most corrosive traits of this administration and the congressional allies who enable it.
As we’ve noted before, Stauber seems fixated on this issue even as most of his constituents favor protecting the BWCAW from this universally hazardous form of mining. He has repeatedly sought ways to advance a project that would allow a foreign mining interest — Chilean conglomerate Antofagasta — to extract Minnesota’s minerals and ship them to China. In the end, he chose deception to accomplish that goal.
Last week’s action also creates serious problems for public lands policy going forward. The CRA’s timelines exist precisely to prevent chaos. If an administration and its congressional allies can reach back years or decades to reverse any decision, order, management plan, or contract through this same maneuver, there can be no certainty in public lands management — and that uncertainty harms everyone with a stake in how federal lands are managed, including those who wish to develop them.
Fortunately, this isn’t the last word. While a vote under the CRA isn’t reviewable by the courts, the legality of last week’s action certainly is, and it is likely to be tested. Meanwhile, the battle will shift to other venues. And if there’s one thing that last week’s action did for sure— it raised the ire of a broad coalition of environmental and sportsmen’s groups around the country, who witnessed an example of Washington at its worst. If anything, it has redoubled their determination to fight another day on behalf of the Boundary Waters.