By Catherine O. Danley
Northwest of Challis, in the Salmon River Mountains, an Australian mining company is opening a new cobalt mine in Idaho.[i] Jervois Global Ltd.’s mine sits along the Idaho Cobalt Belt – a 64 kilometer long stretch of cobalt and copper-bearing deposits in the historic Blackbird Mine area.[ii] It is the largest cobalt resource in the United States and Jervois is the first cobalt mine the U.S. has seen operating on its shores in decades.[iii] In fact, Jervois is one of only two mines in the world where cobalt is the principal product.[iv] The other is in Morocco.[v]
Interest in cobalt mining is rising alongside demand for clean energy infrastructure and consumer electronics, particularly as governments seek ways to secure renewable energy resources and reduce their carbon emissions impact. The rising demand for electric vehicles has been a major catalyst under the Biden administration to push for cobalt specifically. The Salmon River Mountains, however, aren’t the only source of cobalt deposits that are attracting mining interests. Minerals in the seabed have been considered a potential source of mining sites since the 1970s and 1980s when depressed metal prices had companies and countries looking to sea for new deposits. Deep sea technology just wasn’t up to the task to make mining economical, much less truly feasible.[vi]
The search for cobalt, and other minerals crucial to modern technology, may be changing that. This article will briefly discuss the rising demand for cobalt, the minerals of the seabed, and new developments unfolding in deep sea mining, international laws governing seabed resources, and the ongoing balancing act between environmental protections and the need for minerals in green energy markets.
Cobalt is a key ingredient in lithium-ion batteries that powers much of our modern technology, including laptops, cell phones, and electric vehicles.[vii] Using cobalt stabilizes the battery’s chemistry, prevents fires, and allows the battery to hold a longer charge.[viii] Cobalt also allows manufacturers to add other materials – such as nickel – to help battery performance.[ix]
Electric vehicles and other forms of renewable energy technology have been on the rise for years, but recent legislation and modern drives towards green energy have been powerful catalysts to mineral demand.[x]
For example, the Inflation Reduction Act of 2022, passed last August, includes tax credit provisions for electric vehicle purchasers.[xi] These tax credits are part of the Biden administration’s goal to hit a 50% electric vehicle target of sales shares in the U.S. by 2030, and to cut U.S. vehicle emissions in half within the same time frame.[xii] It’s an ambitious goal dependent, at least in part, on the manufacturers’ ability to source cobalt and other minerals essential for electric vehicle production.
The Department of Energy also announced $3.16 billion from the Infrastructure Investment and Jobs Act will be used “to make more batteries and components in America, bolster domestic supply chains, create good-paying jobs, and help lower costs for families.”[xiii]
All of this manifests at a time where nations are looking for renewable energy solutions. Transitions to clean energy technology are expected to increase global demand for critical minerals by 400-600%, while battery minerals will increase as much as 4,000%.[xiv] Most of the world’s cobalt supply, however, is controlled abroad, which has raised national security concerns.[xv]
The Congo (Kinshasa) continues to be the leading source of cobalt production, accounting for 70% of the world’s production, while China remains the world’s leading producer of refined cobalt. [xvi] China is the world’s leading consumer as well.[xvii] Other key minerals are controlled overseas too. The U.S. imports most of its rare earth metals, with 74% coming from China, 8% from Malaysia, 5% from Estonia and Japan, and the remainder from a mix of nations.[xviii]
Rare earths serve diverse and highly specialized uses, such as construction of mobile phones, advanced motors, generators, oil-refinery catalysts, and superstrong magnets.[xix] Like cobalt, demand for rare earths is rising too: the estimated value of imported rare-earth compounds increased by 25% from 2021 to 2022 alone, and global mine production is estimated to have increased to 300,000 tons of rare earth oxide equivalent.[xx]
Idaho is beginning a new chapter in its mining history as “the world faces a myriad of challenges in transitioning to clean energy.” [xxi] The ocean floor just may be another source of minerals that “will help meet a massive new demand for electric vehicle (EV) battery metals.”[xxii]
Minerals of the Seabed
According to the U.S. Geological Survey, “[m]ore than 120 million tons of cobalt resources have been identified in polymetallic nodules and crusts on the floor of the Atlantic, Indian, and Pacific Oceans.”[xxiii] There are two types of mineral deposits mentioned in that data (nodules and crusts), which are located in different regions of the seabed. Polymetallic nodules are what they sound to be: varying sized “rocks” sitting scattered across the sediment of abyssal plains – a cold, dark, and flat expanse of seabed in the central Pacific.[xxiv]
Each nodule tends to contain “at least 27 percent manganese, about 1 percent each of copper and nickel, and 0.2 percent cobalt.”[xxv] Whereas cobalt crusts “grow on hard-rock substrates of volcanic origin by the precipitation of metals dissolved in seawater in areas of seamounts, ridges, [and] plateaus.”[xxvi] These deposits are found in international waters but sometimes fall into areas known as a country’s “Exclusive Economic Zone,” or EEZ. An EEZ is a zone of water that extends 200 nautical miles from a nation’s coast.[xxvii] Importantly, resources within a nation’s EEZ fall within that nation’s jurisdiction.
Just how much money is in seabed minerals? Some reports have estimated deep-sea minerals to be worth $150 trillion, or about “nine pounds of gold for every person on earth.”[xxviii] The trouble is access – technology simply hasn’t advanced yet to a degree that makes mining the deep sea economical.
It’s only been over the last few years that major technological developments have led to the possibility of commercially exploiting seabed minerals. One of the more recent milestones happened just last year. In May of 2022, The Metals Company, Inc. (Canada), and Allseas (a Swiss contractor) successfully completed deep-water tests with the Hidden Gem, “the world’s first fully operational deep-sea mineral production vessel.”[xxix]
Six months later, in November 2022, the Hidden Gem reached another milestone. Engineers drove a pilot collector across 80 kilometers of the Pacific seafloor and collected 4,500 tons of polymetallic nodules through a riser system to the surface production vessel.[xxx] The nodules were transported up 4.3 kilometers (2.6 miles) of riser pipe to the sea surface.[xxxi] The Hidden Gem’s pilot trials are the first integrated nodule collection tests since the 1970s to be conducted in the Clarion Clipperton Zone, a nodule-rich area of the central Pacific Ocean.[xxxii]
Uniform Rules Governing Deep Sea Mining
Deep sea mining doesn’t just require the technology and engineers to reach deep-sea minerals; there are layers of international rules and regulations governing seabed mineral rights. The United Nations Convention on the Law of the Sea (“UNCLOS”) governs deep sea mining of the “Area” – “the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction.”[xxxiii] Under UNCLOS, the international seabed and its resources are considered the common heritage of mankind.[xxxiv] This is a legal concept that dates back to ancient times, when the Roman jurist Marcianus wrote that the sea, its fish, and even coastal waters were “communis omnium naturali jure” or “common or open to all men by the operation of natural law.”[xxxv] Because the oceans belonged to everyone, they could be appropriated by no one.[xxxvi]
Today, all Area activities are conducted for the benefit of all humanity. When a state mines the deep seabed it must distribute economic shares to developing nations, encourage and complete marine scientific research, take measures to protect the marine environment, promote the transfer of technology and scientific knowledge among other states, and promote the participation of developing states in activities within the Area.[xxxvii] The International Seabed Authority (“ISA”) is the governing authority charged with implementing each of these requirements, in addition to establishing rules and procedures for mining and mineral rights.[xxxviii]
In short, nations cannot lay direct claims to seabed resources outside of their jurisdiction, i.e. beyond the 200 nautical miles of their EEZ. They must seek mining claims through the ISA’s regulatory framework and the “Mining Code” – comprehensive mining rules, regulations, and procedures that apply to each type of mineral deposit in the seabed: polymetallic nodules, polymetallic sulfide deposits, and cobalt crusts.[xxxix] Coastal states can also seek to demonstrate an outer continental shelf that extends more than 200 nautical miles from its shores (again, an area traditionally beyond its jurisdiction) to obtain sovereign rights for exploration and exploitation of its natural resources.[xl]
To date, the ISA has entered into five exploration contracts for cobalt, including JOGMEC (Japan), COMRA (China), Russia, the Republic of Korea, and CPRM (Brazil).[xli] The ISA has entered into an additional 26 exploration contracts for polymetallic nodules (in the Clarion Clipperton Zone of the central Pacific Ocean) and polymetallic sulphides (deposits that build up beneath hydrothermal vents or “black smokers”).
You might notice that there’s a mix of private companies and foreign nations contracting with the ISA. Since 2010, both national agencies and private companies have been involved in exploration activities and contracting.[xlii] Sometimes international efforts overlap. The Metals Company, for example, is operating through its subsidiaries that hold exploration contracts and commercial rights to three areas within the Pacific’s Clarion Clipperton Zone. [xliii] It’s also sponsored by the governments of Nauru, Kiribati, and the Kingdom of Tonga.[xliv]
Where does the U.S. fall into all this deep-sea mineral exploration? The short answer is, we don’t. The United States has never ratified the United Nations Convention on the Law of the Sea, nor is it a member state of the ISA.[xlv] While the United States remains a consistent and official observer at ISA proceedings, we have yet to establish a legal regime or foundation to participate in seabed mineral extraction. Whether we can participate without being a party to UNCLOS remains to be seen.[xlvi] Where American companies have wanted to participate in deep-sea mining interests, they’ve gone through foreign subsidiaries to gain legal access to the Area.[xlvii]
Whether in Idaho or in international waters, mining becomes a balancing act between environmental protections and harvesting crucial minerals. Environmental and social concerns abound. Here are just a few examples to consider:
- In Idaho, the Jervois cobalt mine is close to the Frank Church River of No Return Wilderness and connects by a creek to steelhead and Chinook salmon runs. Concerns of water contamination run high, especially since the Blackbird Mine remains a Superfund site where contaminated runoff entered water bodies during high flows.
- Terrestrial mining has historically demonstrated the potential for incredible environmental destruction. How much worse could the effects be deep in our oceans, which we depend on for resources, food, navigation, trade, and even climate?
- The effects of deep-sea mining are as unknown as the environments we’re diving into. Will the noise and sediment plumes of mining operations disrupt sensitive ecosystems? Will industrial mining alter marine landscapes in ways that affect species, habitat, and nutrient flow?
- Historically, mining has occurred in remote areas near indigenous peoples and minorities. How will they be affected with future mining opportunities?
Prudence is undoubtedly needed as mining efforts push forward at sea and on land, and balance between conservation and resource extraction is needed more than ever. Jervois has partnered with the Idaho Conservation League to address some of our more local environmental concerns. For the last three years, Jervois has funded projects that protect and restore fish habitats near the Upper Salmon River and protect crucial salmon species and spawning grounds. It has made $150,000 available each year for such conservation projects and plans to partner with the Idaho Conservation League throughout its 30 to 40 years of mining operations.[xlviii]
Ultimately, transitioning away from a carbon economy means transitioning towards a mineral one.[xlix] Clean energy technologies simply require more minerals. “A typical electric car requires six times the mineral inputs of a conventional car and an onshore wind plant requires nine times more mineral resources than a gas-fired plant.”[l] Since 2010, the average demand for “minerals needed for a new unit of power generation capacity has increased by 50%.”[li] Mining cobalt and similar resources has the potential to help develop our renewable energy infrastructure and spur economic growth. Not to mention supply the key minerals needed in items as common and crucial as batteries. While many questions and issues remain to be solved, just as many opportunities lie ahead.
Catherine O. Danley currently serves as a law clerk to the Honorable Gregory W. Moeller at the Idaho Supreme Court. She received her J.D. from the S.J. Quinney College of Law with a certificate in Environmental and Natural Resources Law. In her free time, Catherine enjoys hiking and kayaking in scenic Idaho.
[i] Ian Max Stevenson and Kevin Fixler, Cobalt Mining excavations return amid electric vehicle push. They’re coming to Idaho, Idaho Statesman (Dec. 27, 2022), https://www.idahostatesman.com/news/northwest/idaho/article266874121.html;
[ii] Idaho Cobalt Belt, Jervois: Idaho Cobalt Operations, https://jervoisidahocobalt.com/idaho-cobalt-operations/idaho-cobalt-belt/ (last visited Feb. 16, 2023).
[iii] Jervois: Idaho Cobalt Operations, https://jervoisidahocobalt.com/ (last visited February 16, 2023); Stevenson and Fixler, supra note 1.
[iv] U.S. Geological Survey, Cobalt: Mineral Commodity Summary (Jan. 2023), https://pubs.usgs.gov/periodicals/mcs2023/mcs2023-cobalt.pdf.
[vi] “Mining for polymetallic nodules is an enormous challenge that has been compared to standing on top of a skyscraper on a windy day and trying to suck marbles off the street with a vacuum cleaner hose.” Jason C. Nelson, The Contemporary Seabed Mining Regime: A Critical Analysis of the Mining Regulations Promulgated by the International Seabed Authority, 16 Colo. J. Int’l Envtl. L. & Pol’y 27, 40 (2005).
[vii] Stevenson and Fixler, supra note 1.
[x] See The White House, Fact Sheet: Securing a Made in America Supply Chain for Critical Minerals (Feb. 22, 2022), https://www.whitehouse.gov/briefing-room/statements-releases/2022/02/22/fact-sheet-securing-a-made-in-america-supply-chain-for-critical-minerals/.
[xi] See generally Inflation Reduction Act of 2022, PL 117-169, August 16, 2022, 136 Stat 1818.
[xii] U.S. Dep’t of Trans., Historic Step: All Fifty States Plus D.C. and Puerto Rico Greenlit to Move EV Charging Networks Forward, Covering 75,000 Miles of Highway (Sept. 27, 2022), https://www.transportation.gov/briefing-room/historic-step-all-fifty-states-plus-dc-and-puerto-rico-greenlit-move-ev-charging.
[xiii] U.S. Dep’t of Energy, Biden Administration Announces $3.16 Billion from Bipartisan Infrastructure Law to Boost Domestic Battery Manufacturing and Supply Chains (May 2, 2022), https://www.energy.gov/articles/biden-administration-announces-316-billion-bipartisan-infrastructure-law-boost-domestic.
[xiv] Securing a Made in America Supply Chain for Critical Minerals, supra note 10.
[xv] Stevenson and Fixler, supra note 1; Keith Bradsher, Amid Tension, China Blocks Vital Exports to Japan, N.Y. Times (Sept. 22, 2010), https://www.nytimes.com/2010/09/23/business/global/23rare.html.
[xvi] U.S.G.S., Cobalt, supra note 4.
[xviii] U.S. Geological Survey, Rare Earths: Mineral Commodity Summary (Jan. 2023), https://pubs.usgs.gov/periodicals/mcs2023/mcs2023-rare-earths.pdf.
[xix] Catherine Danley, Diving to New Depths: How Green Energy Markets Can Push Mining Companies into the Deep Sea, and Why Nations Must Balance Mineral Exploitation with Marine Conservation, 44 Wm. & Mary Envtl. L. & Pol’y Rev. 219, 223 (2019).
[xx] U.S.G.S., Rare Earths, supra note 17.
[xxi] Deep-sea polymetallic nodule collection, Allseas, https://allseas.com/activities/deep-seapolymetallicnodulecollection/ (last visited Feb. 16, 2023).
[xxiii] U.S.G.S., Cobalt, supra note 4.
[xxiv] Danley, supra note 19 at 225.
[xxvi] Minerals: Cobalt-rich Ferromanganese Crusts, Int’l Seabed Auth., https://www.isa.org.jm/exploration-contracts/cobalt-rich-ferromanganese (last visited Feb. 16, 2023).
[xxvii] Id. See also North Sea Continental Shelf Cases (Ger./Neth.; Ger./Den.), Judgment, 1969 I.C.J. 3, ¶ 19 (Feb. 20) (“the rights of the coastal State in respect of the area of continental shelf that constitutes a natural prolongation of its land territory into and under the sea exist ipso facto and ab initio, by virtue of its sovereignty over the land, and as an extension of it in an exercise of sovereign rights for the purpose of exploring the seabed and exploiting its natural resources. In short, there is here an inherent right.”).
[xxviii] Danley, supra note 19 at 219.
[xxix] Hidden Gem, Allseas, https://allseas.com/equipment/hidden-gem/ (last visited Feb. 16, 2023); The Metals Company, The Metals Company and Allseas Announce Successful Deep-Water Test of Polymetallic Nodule Collector Vehicle in the Atlantic Ocean at a Depth of Nearly 2,500 Meters,The Metals Company (May 5, 2022), https://investors.metals.co/news-releases/news-release-details/metals-company-and-allseas-announce-successful-deep-water-test. Videos highlighting the pilot nodule collection and other tests are available to watch on the Allseas website.
[xxx] The Metals Company, NORI and Allseas Lift Over 3,000 Tonnes of Polymetallic Nodules to Surface from Planet’s Largest Deposit of Battery Metals, as Leading Scientists and Marine Experts Continue Gathering Environmental Data,The Metals Company (Nov. 14, 2022), https://investors.metals.co/news-releases/news-release-details/nori-and-allseas-lift-over-3000-tonnes-polymetallic-nodules.
[xxxii] The Metals Company, TMC and Allseas Achieve Historic Milestone: Nodules Collected from the Seafloor and Lifted to the Production Vessel Using 4 km Riser During Pilot Trials in the Clarion Clipperton Zone for First Time Since the 1970s, The Metals Company (Oct. 12, 2022), https://investors.metals.co/news-releases/news-release-details/tmc-and-allseas-achieve-historic-milestone-nodules-collected.
[xxxiii] United Nation Convention on the Law of the Sea, Preamble, Dec. 10, 1982, 1833 U.N.T.S. 397, 445-77 (hereinafter UNCLOS).
[xxxiv] UNCLOS, Part XI, § 2, art. 136, 137, 140.
[xxxv] Peter Prows, Tough Love: The Dramatic Birth and Looming Demise of UNCLOS Property Law (and What Is to Be Done About It), 42 Tex. Int’l L.J. 241, 249 (2007)
[xxxvii] UNCLOS, Part XI, § 2, art. 140, 142–44, 148.
[xxxviii] Id. at art. 137, ¶ 2; Id. at art. 140, ¶ 2.
[xxxix] The Mining Code, Int’l Seabed Auth., https://www.isa.org.jm/mining-code.
[xl] UNCLOS, art. 77, ¶ 1.
[xli] Cobalt-rich Ferromanganese Crusts, note 24.
[xlii] Exploration Contracts, Int’l Seabed Auth., https://www.isa.org.jm/exploration-contracts (last visited Feb. 16, 2023).
[xliii] NORI and Allseas Lift Over 3,000 Tonnes of Polymetallic Nodules to Surface, note 28.
[xlv] Status of Treaties: Law of the Sea, United Nations Treaty Collection, https://treaties.un.org/pages/ViewDetailsIII.aspx?src=TREATY&mtdsg_no=XXI-6&chapter=21&Temp=mtdsg3&clang=_en (last visited Feb. 16, 2023); Member States, Int’l Seabed Auth.,
[xlvi] See Signe Veierud Busch, Establishing Continental Shelf Limits Beyond 200 Nautical Miles by the Coastal State: A Right of Involvement for Other States? 266, 286 (2016); Chapter 2 Resource Rights in the Continental Shelf and Beyond: Why the Law of the Sea Convention Matters to Mineral Law, 64 RMMLF-INST 2, 2-6 (2018).
[xlvii] Danley, supra note 19 at 256 (citing Daisy R. Khalifa, Law of the Sea Goes Public, 55 SEAPOWER 16, 17-18 (2012)).
[xlviii] Eric Tegethoff, Mining Co., ID Conservation Group Partner to Fund Salmon Restoration, Public News Service (Feb. 8, 2023), https://www.publicnewsservice.org/2023-02-08/environment/mining-co-id-conservation-group-partner-to-fund-salmon-restoration/a82811-1; Stevenson and Fixler, supra note 1.
[xlix] Executive Summary: The Role of Critical Minerals in Clean Energy Transitions, Int’l Energy Agency, https://www.iea.org/reports/the-role-of-critical-minerals-in-clean-energy-transitions/executive-summary (last visited Feb. 16, 2023).