Hakai Magazine

Rocks on ocean floor

A Mining Code for the Deep Sea

The clock is ticking on the International Seabed Authority to finish its new exploitation regulations for deep-sea mining.

Authored by

by Elham Shabahat

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Since the late 1800s, when the HMS Challenger expedition traversed the world’s oceans for the first time to gather scientific data about the deep sea, scientists have known about the “greatest hauls of manganese nodules” that rest within the seafloor. Almost a century later, John Mero, a mining engineer from the University of California, Berkeley, became one of the first proponents of deep-sea mining when he argued that these nodules hold enormous economic potential. In his book The Mineral Resources of the Sea, published in 1965, Mero asserted that these potato-shaped nodules were limitless and available to most nations that wished to mine them.

Skip forward half a century and Mero’s predictions are now known to be on the verge of hyperbole. But the idea of exploiting these nodules—also referred to as polymetallic nodules, as they can contain cobalt, nickel, and copper as well as manganese—has attracted increasing interest. With the technology to mine the seafloor under development, and companies looking to secure valuable leases, the main impediment to deep-sea mining in international waters is the Mining Code, a set of regulations—still under development by the International Seabed Authority (ISA)—that will dictate the future of the deep sea.

As an independent branch of the United Nations that has jurisdiction over the ocean floor in international waters, the ISA is mandated to regulate the seabed as a common heritage of humankind. With deep-sea mining, the ISA is charged with both encouraging the industry’s development and regulating how it will work. The Mining Code includes exploration regulations for gathering baseline environmental data, and exploitation regulations—still in draft form—for commercial mining in the international seabed area.

“The ISA is developing regulations for the ability to manage and make decisions about an area that’s over 50 percent of the Earth,” says Kathryn Mengerink, a marine biologist and lawyer at the Waitt Institute, a nonprofit based in San Diego, California. “The power in those decisions is enormous.”

To date, the ISA has already issued exploration regulations and granted licenses for exploration to 22 contractors (a mix of governments, state-owned companies, and private corporations), giving them permission to scour the seabed for polymetallic nodules and collect baseline environmental data. When, where, and how contractors will be able to start extracting the minerals is the focus of the new exploitation regulations.

The exploitation regulations were supposed to be finalized in 2020. However, the pandemic has slowed the process considerably. Yet a clause under the UN Convention on the Law of the Sea could force the ISA to finalize the code in two years—either fast-tracking the exploitation regulations, or giving contractors interested in seabed mining a license under the draft regulations.

Commonly referred to as the “two-year rule,” the clause can only be triggered by the 167 countries or member states of the ISA, some of which sponsor mining companies and are called sponsoring states. To obtain a license to mine the seafloor, a company must be sponsored by a member state of the ISA.

The nascent deep-sea mining industry is asking for the exploitation regulations to be finalized soon. The Mining Code would offer “regulatory certainty” for mining operations, says Christopher Williams, the managing director of UK Seabed Resources, a contractor and subsidiary of Lockheed Martin that holds exploration licenses.

“The Mining Code is absolutely fundamental,” says Williams. “Without it, we cannot go out and do any commercial-scale collection of polymetallic nodules.”

The Metals Company, a mining company formerly known as DeepGreen and based in Vancouver, British Columbia, had suggested last year that it could trigger the two-year rule to finalize the regulations. The company recently backtracked from this position. The Metals Company holds exploration licenses in the Clarion-Clipperton Zone in the Pacific Ocean, sponsored by Tonga, Nauru, and Kiribati.

“The discussion around the two-year trigger does come up periodically with our sponsoring states because they are supportive of seeing this industry developed,” says Corey McLachlan, head of stakeholder engagement at the Metals Company. “At this point, we don’t have any insight into the potential use or timing of a two-year trigger.”

But others think that there isn’t enough information about the impacts of mining in the deep sea to even allow for effective regulation of the industry. Conservation groups such as Conservation International and the World Wildlife Fund for Nature have called for a 10-year moratorium on deep-sea mining and the adoption of the Mining Code’s exploitation regulations to allow for more time to understand the risks associated with deep-sea mining.

“We’ve got a massive lack of scientific knowledge and understanding of the technology that will be used,” says Duncan Currie, a legal advisor to the Deep Sea Conservation Coalition, a group of NGOs that supports the moratorium. “There simply just isn’t enough information to make an informed decision and to be able to draft the kind of regulations that are needed.” Though scientists are studying how extracting polymetallic nodules will affect the animals that live on them and in the surrounding sediment, there is a huge amount of uncertainty about the cumulative environmental effects of deep-sea mining.

Life in the deep sea is “more diverse than you would think,” says Cindy Van Dover, a deep-sea biologist at Duke University in North Carolina. Researchers have found certain species of sponges and mollusks that are unique to the surfaces of nodules. The nodules can take a millennia to form, and there are higher densities of animals living on or near nodules compared with nodule-free parts of the ocean floor. Sediment plumes from mining vehicles could also potentially impact habitats beyond the seafloor.

Conservation groups are concerned about the process for drafting the regulations. Some scientists argue that there is an inherent contradiction in the ISA’s dual role of ensuring the protection of the marine environment and governing the exploitation of seafloor mineral resources. Then, within the ISA, the people actually holding the pen on the successive drafts of the exploitation regulations are the members of the Legal and Technical Commission, a limited body of 30 representatives from ISA member states.

“The Legal and Technical Commission is a body that meets behind closed doors, but they are discussing matters that are in the broad public interest,” says Currie. “This is information that’s not meant to be kept secret if it’s necessary for the protection of the marine environment under the law of the sea convention.”

Mining companies suggest that the ISA has an engagement process that allows for feedback on the regulations. “The regulations are open to comment from interested stakeholders through multiple iterations and drafts,” says McLachlan. “It’s a very open and transparent way of developing a regulatory regime.”

But many NGOs, such as the Pew Charitable Trusts, are calling for more transparency in the decision-making process. Recently, the ISA has conducted technical workshops, and solicited feedback from member states, the scientific community, industry, and observers on standards and guidelines that will be part of the Mining Code.

“Our view is that this is a positive development, with more opportunities for stakeholder involvement, and a venue in which observers can provide inputs,” says Andrew Friedman, associate manager of the seabed mining project at the Pew Charitable Trusts, which holds observer status at the ISA and has supported the calls for a moratorium. “At present, the draft regulations are available to various stakeholders for comment, but the ISA has not yet taken up the responsibility to address and respond to these comments.”

Despite all the critiques, experts agree that the Mining Code is an unusual legislation aimed at regulating seabed mining before it starts, a preemptive move uncommon for industries with an impact on the environment, particularly those that extract minerals from the earth. Offshore drilling for oil was lightly regulated until the Deepwater Horizon spill in the Gulf of Mexico spurred stronger regulations in the United States, for instance, while international regulations for the whaling industry only came into play after several species were almost extinct.

Williams agrees that it is a unique opportunity “to come up with a regulatory regime that’s in place, monitored properly, and accountable to the whole global community before an industry even starts.”

“This is a chance to get it right,” adds Friedman. “We can control an activity before it gets underway.

“If we get this wrong, it will be a tragedy.”