The administration of President Donald Trump is going full steam ahead with plans to allow mining of metal-rich nodules on the seafloor in international waters. In April, he signed Executive Order 14285, “Unleashing America’s Offshore Critical Minerals and Resources,” which directs the Secretary of Commerce to, among other things, identify “private sector interest and opportunities for seabed mineral resource exploration, mining, and environmental monitoring in the United States Outer Continental Shelf; in areas beyond national jurisdiction; and in areas within the national jurisdictions of certain other nations that express interest in partnering with United States companies on seabed mineral development.”
To give legal cover to the order, the administration is relying on the Deep Seabed Hard Mineral Resources Act of 1980 (DSHMRA). This law was passed as a holding measure in anticipation of the U.S. ratification of the United Nations Convention on the Law of the Sea (UNCLOS). “[P]ending a Law of the Sea Treaty, the protection of the marine environment from damage caused by exploration or recovery of hard mineral resources of the deep seabed depends upon the enactment of suitable interim national legislation,” the act states. “[L]egislation is required to establish an interim legal regime under which technology can be developed and the exploration and recovery of the hard mineral resources of the deep seabed can take place until such time as a Law of the Sea Treaty enters into force with respect to the United States.”
The United Nations Convention on the Law of the Sea was adopted in 1982 and became effective in 1994, a year after Guyana became the 60th nation to ratify it. At present, 169 sovereign states and the European Union are signatories to the law, which, among other things, established the International Seabed Authority (ISA) to regulate deep-sea mining.
When Congress passed DSHMRA, few doubted that the United States would also eventually be signatory to the law of the sea, which was still being negotiated and would be adopted by the United Nations two years later. That did not happen. One result is that, while international law governing seabed mining is binding on all signatory nations that have the capacity to pursue it, the United States is not. Another is that American companies cannot obtain licenses for deep-sea mining from the ISA.
A recent analysis on the Bitget website describes the legal complexities that the administration’s position presents. The executive order, issued “to speed up seabed mineral exploration, has been perceived as a direct challenge to the UNCLOS framework, potentially heightening competition in resource-rich areas like the Clarion-Clipperton Zone,” the unnamed author writes (see https://www.bitget.com/news/detail/12560605107102).
“By circumventing the ISA, the U.S. challenges the legitimacy of a multilateral system that is widely accepted by the international community,” the Bitget analysis continues. “This has led to warnings from the ISA and criticism from countries such as China, which sees U.S. unilateralism as destabilizing for global ocean governance.”
Meanwhile, the ISA is itself mired in difficulty in efforts to establish regulations for seabed mining. As time passes, more and more of the signatory nations are pushing for a ban on any permits.
Bolstering their position are increasing studies of the long-term impacts of seabed mining as well as the discovery of new organisms in the dark, cold environment.
A University of Hawai‘i graduate, Gabrielle Ellis, was lead author of one of those studies that examined ocean life in the abyssal benthic boundary layer, a few meters above the seafloor. The study, published in Limnology and Oceanography, describes a dynamic community of snails, bivalves, and barnacles that changes in response to seasons and availability of food that drifts down from higher in the water column.
“Given the remoteness of this environment, we have extraordinarily limited knowledge of the animals that inhabit this zone,” Ellis said, as quoted in a press release from the University of Hawai‘i. “We didn’t expect the results to be as stark as they were. These animals may be quite sensitive to changes in productivity in surface waters, which ultimately drive these patterns in the abyss.”
Erica Goetze, study co-author and professor of oceanography at UH-Manoa, added, “In the event of deep-sea mining, the organisms in this region will be impacted via ambient water removal and the generation of sediment plumes that interfere with feeding, in addition to the removal of nodules, which will effectively remove the settling habitat for larvae, likely leading to further declines in local recruitment.” Also co-authoring the study were UH oceanography professor Jeffrey Drazen and Craig R. Smith, professor emeritus of oceanography and, with Goetze, graduate advisor of Ellis. (Ellis recently received the Mirikitani Outstanding Dissertation Award; she now teaches at Georgetown University.)
“Our results highlight how much we have to learn about the dynamics of these abyssal ecosystems in order to provide a vital baseline for assessing the impact of both human activity and climate change,” Smith said.
Yet another study published last March in Nature, “Long-term impact and biological recovery in a deep-sea mining track,” looks at the tracks left by an experimental mining vehicle more than 40 years ago on the floor of the Pacific Ocean. The researchers, from Britain’s National Oceanography Centre, found that the mining activity in 1978 led to alterations in the seabed sediment and declines in larger marine organisms.
“Although some aspects of the modern collector design may cause reduced physical impact compared to this test mining experiment,” the authors write, “our results show that mining impacts in the abyssal ocean will be persistent over at least decadal timeframes and communities will remain altered in directly disturbed areas.”
Just last month, Nature Ecology & Evolution published yet another study of the ecological impacts of seabed mining, “Impacts of an industrial deep-sea mining trial on macrofaunal biodiversity.” This study, led by researchers at the Natural History Museum of London with contributions from scientists at other institutions, was funded by Canadian-based TMC, whose U.S-based subsidiary is one of the companies that is seeking licenses from the United States to mine the sea floor, while its Nauru partner has applied for a license from the ISA. The TMC “had no influence on data analysis, interpretation, or presentation,” the authors stated.
The study looked at an area of the Clarion-Clipperton Zone that, in 2022, was the site of a large-scale test of a commercial deep-sea mining vehicle. For two years before the test and two years after, the scientists looked at the organisms living in the sediment. This allowed them to separate impacts from the mining activity from natural variation.
In the area mined, the density of macro-fauna decreased 37 percent within the mining tracks, while the number of species decreased 32 percent.
In June 2021, the president of Nauru informed the ISA that it was going to invoke the two-year rule, allowing it to commence seabed mining in 2023, through its partnership with TMC, Nauru Ocean Resources, Inc. (NORI). By 2023, the ISA, under its rules, would be required to give NORI provisional approval to mine nodules in an area of the Clarion-Clipperton Zone, even if it had not approved a Mining Code,
The ISA still has no Mining Code, governing the conditions under which mining may proceed, but members have pointed out that this two-year rule is not the only provision that stands in the way of moving forward with mining operations.
An analysis on the mining.com website analyzes other obstacles. Aline Jaeckel and Erik van Doorn write in the Blog of the European Journal of International Law, EJIL Talk!, that in addition to rules concerning mining exploitation, “the ISA is obligated to adopt another, entirely separate, set of regulations before any seabed mining can occur: benefit sharing regulations,” negotiations for which are “at a very early stage.”
What has been lost in discussions, they write in a post of December 29, “is the legal obligation on all UNCLOS member states to ensure that benefits derived from mining … are shared equitably. Indeed, the ISA is required to develop and adopt a separate set of regulations on benefit-sharing.”
Jaeckel is associate professor at the Australian National Center for Ocean Resources and Security (ANCORS) at the University of Wollongong and advisor to the government for ongoing negotiations at the ISA. Van Doorn is a lecturer at ANCORS whose research has focused on marine resources.
“The importance of these benefit-sharing obligations to the ISA regime cannot be overstated,” they write. “The raison d’être of the ISA regime is to avoid a repetition of historical inequities in extractive industries. … The ISA represents a rejection of this colonial approach to resource management. Thus, ensuring that DSM [deep sea mining] … benefits humankind is a core mandate of the ISA.”
While the ISA Council is charged with adopting rules for mining exploitation, the full ISA Assembly must approve benefit-sharing rules. “The Assembly must approve the regulations and decide how benefits are distributed,” they write, “a process separate from and slower than adoption of exploitation rules.”
Meanwhile, more and more companies are seeking licenses to mine the deep, either from the ISA or the United States, or both. As reported in mining.com, Lockheed Martin, which holds two licenses in the Clarion-Clipperton Zone (CCZ) granted by U.S. regulators in the early 1980s, is holding talks with several mining companies about potential partnerships to exercise those licenses.
A California-based company, Impossible Metals, has applied for exploration rights under the U.S. law as well as the ISA, also in the CCZ. It is also the first company “to apply for a deep-sea critical mineral lease in U.S. federal waters, 130 miles off the coast of American Samoa,” the company’s website states.
And TMC filed for a commercial permit from the U.S. in April, soon after Trump signed Executive Order 14285.
Impossible Metals has said it plans to share with American Samoa 1 percent of the company’s profits from mining in federal waters near Rose Atoll, potentially providing the territory with $10 million a year.
Rather than dredging the seabed with large tractor-like behemoths, the company plans to selectively pluck metallic nodules from the ocean floor using robots that hover just above it. The company claims its technology will allow the robots to avoid sensitive habitats, and won’t generate much noise, create sediment plumes, or require the dumping of effluent.
Drazen reported to the Western Pacific Fishery Management Council last September that the company hopes to test its mining technology in 2027.
“Their technology is experimental. It could be disruptive,” he said.
In any case, he said the United States should be wary of giving blanket permits to a given company. Instead, he argued that permits should be issued for specific mining technologies, since a company issued a permit could later decide to change the mining technology it uses.
— Patricia Tummons
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