Introductory article to permitting

What is the process of designing and planning new extractive operations?

Industrial activities, such as mineral extraction, similar to any other human activity, impact human society (provides resources or endangers human health) and the natural environment (releases substances mostly dangerous for animal and plant life). Public policy and other means are important vehicles to influence such activities to the extent that impacts are minimised or even beneficial in some instances. In regards to minerals, specific procedures are put in place by the government (permitting and licensing) for granting or denying mineral raw materials exploration or extraction in a specific area.

Permitting conducted by government authorities is a public authorisation process performed according to pre-set public procedures as well as regulated by legal provisions that vary amongst the different European Union Member States (EU MS). This variation encompasses, for example, the strictness of environmental standards, infrastructure and safety requirements, the number of different authorities and levels of government involved. Therefore, governments’ mineral policy framework and political objectives very much shape the requirements as well as procedure of permitting.

Against this background, a country’s policy will need to balance interests of land use dedication (mineral extraction versus residential areas), securing mineral and economically essential minerals (recycling, substitution or primary extraction), and environmental protection (biodiversity protection, climate-neutral industrial development versus energy- and GHG intensive development). Public administrators need to coordinate efforts with other authorities involved in the process, such as permitting authorities, environmental authorities, municipalities, country administration, courts, etc. This is necessary to properly address challenges, allocate resources, and share know-how to assess permits within a given time and their alignment with the legal requirements in different areas such as biodiversity protection, water quality, and health & safety.

Any private sector exploration and exploitation activity in Europe is subject to this procedure, and, therefore, the process is crucial for starting or continuing mineral development. From a company perspective, for the permitting process, it is crucial to evaluate and assess the internal and external factors that may represent potential risks for their investment (exploration or exploitation activity). Such assessments often have to consider dynamically changing and diverse factors, such as community acceptance to mineral extraction, the national legal framework, market conditions, ore resources and grade etc., next to more stable and known factors (high quality of geological and mineral data, proven resource figures, fully controlled operational costs). When the permitting process is less transparent, difficult to administer, society-wide, or local public acceptance is lacking, permitting becomes a risky endeavor for a company.

While extractive activities have to generally adhere to legal provisions for approval of new sites, there are certain additional requirements when these happen in, or nearby, biodiversity protected areas. In this regard, the Birds and the Habitats Directives play an important role, since they obligate individual EU Member States to devise conservation objectives for certain species or habitats in so-called Natura 2000 sites e.g. maintain the extent and continuity of freshwater (river) habitat for Otters (Lutra lutra).

Any activities – not only mineral extraction – should avoid deliberate destruction of, damage to, and having a significant negative effect on the integrity of the site i.e. the coherence of its ecological structure and function across the whole area. If there are no alternatives to the proposed project, or it is of overriding public interest, the project may be carried out with appropriate compensatory measures. This means that extractive activities need to carefully assess impacts and design preventive measures when operating near protected sites.

What is so difficult when applying for new permits?

Before delving into specifics of the permitting process, we briefly discuss the more general challenges when engaging in permitting activities – for both public authorities and policy makers, as well as extractive companies:

• Newly introduced and higher environmental and social standards (obligated by legal provisions) require companies to re-think state of the art practices and approaches for new permit applications. For companies, it is sometimes difficult to establish new extractive and exploration solutions given new legal provisions. New practices need yet to be proven or tested, which takes time and investment not suitable for complex and time-intensive permitting processes (e.g. novel processing technologies). For example, the introduction of Extractive Waste Directive 2006/21/EC, improved site rehabilitation and after-care. The Directive played a key role, as it was able to establish a common basis for the extractive waste management in all EU Member States (MIN-GUIDE D1.3).
• Issues with un-defined, often very long-lasting, timeframes for permit approval as well as involvement of different authorities and absence of coordination in the application process. Permitting processes vary considerably among EU Member States (MS). So called “one-stop shops” for applications are only established in few MS and time-to-permit varies considerably.

• The complex nature of the extractive industry (engineering, management approaches, etc.), responding to new regulatory developments combined with a complex policy landscape requires public authorities to increase their knowledge and capacity to assess permit and licence proposals (MIN-GUIDE D1.3).
• Incoherency on higher tier policy-making: In some cases, challenges during the permitting stage originate at higher tiers of public policy: Conflicting goals of policy strategies (i.e. extension of nature conservation areas versus extension of extractive activities) or incoherency with other related policy areas (i.e. Environmental impact assessment), require coordination of policy decision-making and the design of a strategic, long-term, and clear minerals policy framework. The Birds and the Habitats Directives are the cornerstones of the EU biodiversity policy. For both directives, EU MS take requisite measures to guarantee their implementation. For example, an effective way to avoid potential conflicts with Natura 2000 sites and EU protected species is to consider new plans/projects at a strategic planning level (i.e. regional or national development or spatial plans). In addition, strategic policy frameworks (i.e. national mineral strategies and action plans) address shortcomings of ad-hoc policy design or streamlining conflicting policy objectives.

Mineral Extraction and biodiversity: two worlds apart?

While some general challenges for permitting exist, the establishment of new extractive projects in nature protected areas also has some particular challenges for both policy and industry. We list some below:

• How can companies best anticipate and assess impacts: For extractive activities to happen in or near protected areas, companies must gather information and conduct an assessment on how it impacts the area (species and habitats). This is usually done and coordinated with environmental impact assessments (EIA) for projects and the strategic environmental assessment (SEA). The term is called “appropriate assessment”.
• How companies design measures to reduce impacts: In case impacts are likely to occur, the new project must design meaures to remove, pre-empt or reduce the impacts identified in the appropriate assessment. These include, for example, mitigation measures, aiming to minimise or even cancel adverse effects or compensatory measures, which are intended to compensate for the effects on sites whose integrity is adversely affected. For extractive projects, rehabilitation (i.e. rehabilitation plan as part of the permit) or, possibly biodiviersity off-sets (to achieve no net loss and preferably a net gain of biodiversity on the ground) are likely measures.
• How can competent authorities best assess new projects and guarantee conservation objectives are met in protected areas. Protected areas, such as Natura 2000 sites in the European Union, have site-specific conservation objectives, in which new extractive projects need to consider their impacts (as outlined by major EU biodiversity policy directives). The competent authorities can only approve new extractive projects after having ascertained that it will not adversely affect the integrity of a protected site. The lack of site-specific conservation objectives to compare against, or missing access to adequate and reliable knowledge might both hinder a transparent and effective permitting process. (Van der Sluis, T. & Schmidt, A.M. 2021)

So where do we stand today?

Nowadays, both industry and policy practitioners try to push for new projects that live up to the expectations of society and the EU biodiversity policy: Better assessment methods (case studies), whole industry sector approaches SVEMIN Mining with Nature Roadmap, Life in quarries project, and national guides are major developments to help the extractive industry to live up to these standards and expectations to make new projects possible while protecting natural habitats, species and biodiversity.

We will find out more about these questions when we speak with experts and look into some concrete real-life examples.