Conservation groups in Hawaiʻi filed suit against the US National Oceanic and Atmospheric Administration over its certification of The Metals Company USA’s application to explore for seabed minerals in the Pacific.

The case, brought by the Conservation Council for Hawaii and the Center for Biological Diversity and represented by Earthjustice, argues NOAA breached the procedural requirements of the 1980 Deep Seabed Hard Mineral Resources Act (DSHMRA), the provisions meant to guarantee transparency and public participation.

According to the plaintiffs, the agency made no relevant materials available for public review: not the studies on the proposed activities’ environmental effects, and not the information on whether the company meets the statutory requirements for a licence.

This is the first application certified under DSHMRA since the current administration took office, with several more pending. The site is the Clarion-Clipperton Zone, an area of the Pacific between Hawaiʻi and Mexico that falls under the jurisdiction of the International Seabed Authority, a body that has not authorised commercial deep sea mining. DSHMRA was intended as an interim measure pending an international regime; because the US never ratified the UN Convention on the Law of the Sea, it now offers companies a unilateral route around that regime.

As Jonee Peters, executive director of the Conservation Council for Hawaiʻi, put it:

“Upholding procedural requirements prior to issuing permits for deep sea mining exploration is imperative to the health of the ocean and the communities that depend on its resources.”

Three points stand out for anyone assessing risk in this sector:

• The legal footing is contested – unilateral US licensing sits in direct tension with the international seabed regime, and, as our Pacific partner Pacific Network on Globalisation (PANG)
  recent ‘Undermining Sovereignty’ report shows, it also creates new routes for companies to bring investor-state claims against Pacific governments.
• Transparency is becoming a litigation risk, for example this case lands weeks after Papua New Guinea’s Supreme Court cleared the way for full disclosure of the Solwara 1 licence and permit documents thanks to Centre for Environmental Law and Community Rights (CELCOR), West Coast Development Foundation and Alliance of Solwara Warriors. On both sides of the Pacific, courts are being asked to enforce the public’s right to see the basis on which seabed mining is approved.
• The Metals Company remains pre-revenue, and during its test mining a pollution spill from its support vessel went unreported until scientists on board leaked video of it.

We stand with the Conservation Council for Hawaiʻi, the Center for Biological Diversity and Earthjustice in asking for the scrutiny the law requires.

Read the press release