The world just missed a deadline to regulate deep-sea mining. Now what?

This story was originally published by Grist and appears here as part of the Climate Desk collaboration.

Last month, a small group of diplomats met to hash out a plan that could affect the future of nearly half of Earth’s surface — including regions containing metals that are vital for the energy transition, like nickel, copper, cobalt, and manganese.

That group is the International Seabed Authority, or ISA, an autonomous international organization tasked with regulating mining on the ocean floor, in waters outside any nation’s jurisdiction. On July 9, the regulatory body missed an important legal deadline to finalize those rules. Now the ISA is scrambling to complete them or agree to a fall-back plan before companies start applying for deep-sea mining permits.

The stakes in this regulatory race are high. Some deep-sea ecosystems are rich in metals used in electric vehicle batteries, wind turbines, and solar panels. To transition off fossil fuels, the world needs to dig up enormous quantities of these metals, and deep-sea mining proponents say that can be done with less impact on the ocean floor than on land.

A low-impact mining industry is unlikely to materialize in the absence of ISA rules governing environmental standards and oversight. However, if a company submits a commercial deep-sea mining application before the ISA completes those rules — officially called the Mining Code — the agency will be legally obligated to consider the request nonetheless. Some industry watchdogs fear this will trigger a literal race to the bottom, in which companies destroy fragile seafloor ecosystems in the pursuit of profits.

But a catastrophic outcome is far from assured. Pradeep Singh, an ocean law expert at the Helmholtz Centre Potsdam who attends the ISA meetings and advises governments on deep-sea mining, says member nations have rallied behind the idea that there must be regulations in place before any deep-sea mining companies are given the go-ahead — and that there are several options on the table to ensure that outcome. States, Singh said, are starting to ask: “Do we really want to rush this process for the benefit of one private mining company?”

Singh is referring to The Metals Company, the Canadian mining firm at the centre of the high seas hullabaloo. In the summer of 2021, the Pacific Island nation of Nauru gave the ISA notice that a subsidiary of the firm, which Nauru is backing as a state sponsor, intended to submit an application to begin deep-sea mining. The Metals Company is one of 18 commercial or state-backed entities that have received exploration permits from the ISA to test technology, take samples, and investigate the overall resource potential of deep-sea rocks called polymetallic nodules, in areas that each span nearly 30,000 square miles. No company has been granted a contract to mine underwater.

In announcing the Metals Company’s plan to become the first, Nauru activated the “two-year rule,” an obscure legal provision that obligates the ISA to finalize mining regulations within that time frame or consider any applications if the deadline passes before the rules are done. Nauru and the Metals Company might have been hoping that the ISA would buckle down and finish a rulemaking process that began in 2014. But the sudden imposition of a deadline came in the thick of the COVID-19 pandemic, which had caused ISA negotiations to grind to a halt.

Negotiations resumed last year, but at the end of the ISA’s last meeting in March, the Mining Code was far from complete. The next meeting of the ISA Council, the key group of negotiators tasked with hashing out its details, began on July 10 — a day after the two-year deadline passed.

Singh points out that the council did reach one important decision at its March meeting: that commercial deep-sea mining shouldn’t happen in the absence of regulations.

Part of the council meeting was devoted to discussing what the ISA should do if Nauru, or another country, submits an application for commercial deep-sea mining before the Mining Code is complete. The ISA could, for instance, decide that it will start considering applications immediately, but it will defer making any decisions about them until regulations are in place. Or it could grant an applicant’s mining plan “provisional” approval, but hold off on the negotiation of the final contract until the rulebook is finished. The ISA, Singh says, can also choose to reject any applications that don’t meet its standards. But in the absence of a Mining Code, it is unclear what standards it would base such a decision on.

More dramatically, the ISA could choose to impose a temporary pause or mining moratorium — something that major environmental organizations like Greenpeace, as well as multinational corporations like Google and Patagonia, have called for in recent years. “If governments are serious about their environmental credentials, they have to say no to deep-sea mining,” said Arlo Hemphill, a senior oceans campaigner at Greenpeace USA. “This is the moment to take the wind out of the sails of an industry that has no future.”

“A moratorium or pause is the only responsible way forward at the moment,” deep-sea biologist Diva Amon told Grist. Amon is lead author of a recent study in Nature npj Ocean Sustainability concluding that rising ocean temperatures will cause the range of commercial fish species like yellowfin tuna to overlap more with areas of the eastern Pacific where companies wish to mine. Last week several seafood groups released a letter calling for a pause on deep-sea mining until there is a “clear understanding” of its impacts on the marine environment.

But Singh feels that a pause or ban on mining is less likely than the ISA simply kicking the can down the road, considering that fewer than two dozen member states have voiced support for such action. (Their ranks, however, are growing: Ireland called for a “precautionary pause” on mining last month, while Canada came out in support of a moratorium.) “What’s more likely is that we’ll just extend the negotiations” into the fall or next year, Singh said.

Taking additional time to complete the regulations would also give the ISA an opportunity to sort out issues that are outside the scope of the Mining Code but intrinsically related to deep-sea mining. These include figuring out how to share the economic benefits of the industry in an equitable manner, and how to compensate developing countries whose land-based mining industries are harmed by competition at sea — something African nations have been particularly vocal about. That competition could be significant: The Metals Company estimates the area of the Pacific seafloor it wishes to mine contains enough nickel, manganese, copper, and cobalt “to electrify the entire U.S. passenger car fleet.” And it is just one company.

While many observers are worried about how the ISA will deal with mining applications submitted in the coming weeks or months, there also is no guarantee those applications will appear.

At the close of the ISA’s March meeting, Nauru stated that it “will not entertain an application for a plan of work” from the Metals Company to avoid influencing the ongoing negotiations. The nation did not promise to wait any longer. But Singh points out that states sponsoring mining companies expose themselves to potential legal liability for mining activities. One role of the Mining Code, Singh says, is to “set the parameters” of sponsor state liabilities.

“If you’re agreeing to sponsor a contract in the absence of regulations, you’re agreeing to sponsor a contract in the absence of protection for yourself,” Singh said. “You’re signing a blank cheque.” The government of Nauru did not respond to Grist’s request for comment.

A spokesperson for the Metals Company told Grist in an email that the company would prefer “to submit an application with exploitation regulations in place.” However, the spokesperson added that the firm retains “the legal right to submit an application in their absence and to have this considered by the Council.” The Metals Company will only submit an application for a commercial deep-sea mining contract after it completes “a high-quality, comprehensive, science-driven environmental and social impact assessment,” the spokesperson said. The company declined to respond to critics’ concerns that rushing into deep-sea mining with little understanding of its long-term effects on ecosystems could significantly harm biodiversity and processes like deep-sea carbon sequestration.

The Metals Company also declined to say when it might be ready to apply for a commercial deep-sea mining contract. In an investor update in May, the firm indicated that it planned to do so in the second half of 2023. But Andrew Thaler, a deep-sea ecologist and the CEO of Blackbeard Biologic, a marine science and policy consultancy, cautioned that corporate timetables are often optimistic and that he takes all such projections with “a grain of salt.”

Thaler, whose doctoral research was sponsored by a deep-sea mining company and who has participated in best-practice and risk-management workshops for the industry, says that the majority of people involved with deep-sea mining see themselves as environmentalists. “They genuinely believe we are facing a planetary crisis,” Thaler said, and that they “found a way to get us off fossil fuels faster, and it’s going to involve some exploitation of seafloor.”

But Thaler worries that if the industry tries to push forward too quickly, it will undercut its own sales pitch as a lower-impact alternative to land-based mining.

Deep-sea mining companies have “an opportunity to prove there is a way to do commercial exploitation of natural resources that’s marginally more conscientious and sustainably minded,” Thaler said. “Why throw all that away just to get mining two years earlier?”

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