On Friday the China Minmetals Corporation signed a 15-year contract with the International Seabed Authority (ISA) for exploration of polymetallic nodules on the deep seabed of the Pacific Ocean.  The ISA has now executed nearly 30 exploration contracts for polymetallic nodules, polymetallic sulphides, and ferromanganese in the Atlantic, Indian, and Pacific Oceans.  These materials are rich in minerals – such as cobalt, lithium, and tellurium – used to produce batteries and solar panels.  Last month British scientists announced the discovery of a deposit of tellurium deep in the Atlantic Ocean sufficient to make solar panels capable of generating 65% of the United Kingdom’s electricity supply.

Created under the United Nations Convention on the Law of the Sea of 1982 (UNCLOS), the ISA regulates seabed activities occurring more than 200 miles offshore (i.e., beyond countries’ Exclusive Economic Zones).  The mining part of UNCLOS (aka Part XI) was renegotiated in the early 1990s resulting in the 1994 Implementing Agreement.  UNCLOS became effective later in 1994 when a 60th country (Guyana) ratified it.  Over 160 countries have now ratified UNCLOS, but the United States has not.  As a result, U.S. companies cannot pursue ISA contracts.

U.S. companies can obtain exploration licenses for polymetallic nodules from the National Oceanic and Atmospheric Administration (NOAA) under the Deep Seabed Hard Mineral Resources Act of 1980 (DSHMRA), 30 U.S.C. §§ 1401-1473. NOAA is in the process of extending the two existing licenses, both held by Lockheed Martin, for another five years.  82 Fed. Reg. 18,613 (Apr. 20, 2017).  However, according to Lockheed Martin, U.S. ratification of UNCLOS, as modified by the 1994 Implementing Agreement, must occur before at-sea exploration is feasible.

Environmental protection is integrated into both UNCLOS and the United States’ DSHMRA. For example, Article 145 of UNCLOS requires that the ISA “ensure effective protection for the marine environment from harmful effects” arising from deep seabed activities.  DSHMRA prohibits the issuance of exploration licenses or commercial recovery permits if commercial recovery “would result in a significant adverse impact on the quality of the environment which cannot be avoided by the imposition of reasonable restriction.”  30 U.S.C. § 1413(a)(D)(ii); see also 15 C.F.R. §§ 970.700, 971.600.  In addition, under a late 2016 settlement agreement with the Center for Biological Diversity, NOAA agreed to conduct a supplemental environmental analysis if and when the licensee seeks to conduct at-sea exploration activities.

A Canadian company, Nautilus Minerals, anticipates starting to mine gold and copper in the deep sea off Papua New Guinea in 2019.  This project is not regulated by the ISA, but it would be a milestone for deep sea mining.  As efforts to address greenhouse gas emissions continue around the world, increased production of rare minerals will almost certainly be needed.  At some point, that need may well make deep seabed mining in international waters a reality.