Thacker Pass, located in rural Humboldt County, Nevada, is at the center of a court battle over mining in the United States. It is a controversy that highlights the need for mining reforms. The proposed lithium mine at Thacker Pass is deemed essential to the transition to a net-zero economy. But the mine is opposed by landowners, environmentalists, and Indian tribes who allege that the government has failed to properly protect the landscape. That a mine controversy in Humboldt should focus our attention is fitting. The county is named after the Humboldt River, which was, in turn, named after Alexander von Humboldt—a legendary naturalist and geographer who described humankind’s ability to alter the climate in 1831.

Humboldt the explorer was an exemplar of the Age of Enlightenment. The period’s values included democracy, tolerance, and scientific decisionmaking. Today the recovery of mineral resources in the United States is governed by the product of a different age. The 1872 Mining Law and its predecessors favored business interests. The law encouraged the development of mineral resources on public lands in a manner that virtually codifies a right to mine. This one-sided focus ensures constant controversy and litigation in an era well informed of the devastating consequences mining can have for the environment. Reform is necessary and, with change, a mining regime can be crafted that is less subject to the controversy and court action that slows the acquisition of minerals critical to the electric era.

The Mining Law is much criticized. It massively subsidizes mining companies who pay no royalties on the minerals removed from federal lands. This means the public obtains no direct revenue from mining operations that result in billions of dollars in profits for private companies. As many of these companies have foreign parent corporations, these profits are leaving the United States.

In addition, the Mining Law’s single-minded focus on mineral development has resulted in considerable harm to the environment. Metals mining is the county’s largest source of toxic waste. These effects often disproportionately affect Native communities. A recent study determined that most U.S. reserves of cobalt, copper, lithium, and nickel are located within 35 miles of Native American reservations. Even though these lands are outside of reservation boundaries, they are usually within traditional tribal territory and contain areas of profound cultural and religious significance to members. But Native American communities have historically not been meaningfully engaged on the development of the extraction of mineral resources.

Enlightened mining reform would ensure that royalties are paid to the U.S. Treasury for the benefit of all Americans. A leasing system, akin to the system that governs oil-and-gas development on federal lands, would provide a mechanism for royalties while at the same time eliminating the “right to mine,” a key component of the 1872 act. Furthermore, a leasing system would provide multiple avenues for tribal consultation. And a leasing system is more susceptible to the inclusion of meaningful environmental safeguards.

The difficulty is that a leasing system would require an act of Congress. Congress has resisted mining law reform for decades. The question becomes: Can the Executive Branch alone take steps to bring enlightenment to mining? The answer is yes.

There are three measures toward a reformed mining regime that the Biden administration could undertake immediately. First, the federal government must insist on a meaningful mining plan of operations. Before mining can commence under the 1872 act, a mining plan of operation must be approved. Federal land managers have sometimes been wary of imposing environmental restrictions on mine operators for fear of sparking a takings lawsuit alleging that the environmental conditions are so onerous that they make mining impossible and, hence, extinguish a property right subject to compensation by the government. But recent cases, arising around bans on gold dredging operations, show that land managers have more leeway than often appreciated in conditioning mining on environmental standards.

Second, the courts have recognized the ability of federal land managers to protect important Native American cultural and religious areas from disturbance. Here, as in the past, the government has underestimated its authority. Federal land managers should, in consultation, actively designate non-use areas and proactively protect tribal landscapes.

Federal land managers should affirmatively seek a better understanding of the Native American cultural and sacred landscape. At present, under-resourced land managers only investigate the landscape after a proposal has been put forward, but many critical mineral localities are known now and there is no reason that cultural resources in the vicinity cannot be surveyed immediately as well. Informed consultation depends on land managers knowing the landscape.

Finally, the administration needs to invest in a trained workforce knowledgeable about mining law, environmental science, and cultural resource management. To be sure, agency resources are finite but, even with limited resources, training efforts can yield substantial results.

Andrew Mergen heads the Emmett Environmental Law and Policy Clinic at Harvard Law School. Until recently he was head of the appellate section in the Environment & Natural Resources Division at the Justice Department.