On 26 November 2023, the UK government published its UK battery strategy, with its vision of achieving a globally competitive supply chain in batteries by 2030. The battery strategy re-iterates the UK government’s support announced on 30 October 2023 for an international moratorium on the granting of exploitation licences for deep sea mining projects. Deep sea mining involves the harvesting of mineral deposits (including critical minerals) located on or near the surface of the deep seabed. Critical minerals, such as lithium, cobalt and nickel are important components of battery production and global demand for these minerals is expected to grow over the coming decades as part of the decarbonisation agenda.
The UK’s position is that it will not sponsor or support the issuing of any deep-sea extraction licences until such time as sufficient scientific evidence is available to assess the potential impacts on marine ecosystems and strong, enforceable environmental regulations, standards and guidelines have been developed and adopted by the International Seabed Authority (ISA).
In this article we consider the new constraints the government would face in seeking to reverse this position on deep sea mining as a result of the Environmental Principles Policy Statement (EPPS), which came into force a day after the announcement on 1 November 2023.
The Environmental Principles Policy Statement
The EPPS was adopted under the flagship Environment Act 2021. It sets out how government ministers should take into account five core environmental principles when making policy in England and Scotland, one of which is the “precautionary principle” (described below). The Environment Act requires government ministers to have “due regard” to the EPPS when making policy. This falls short of a duty to apply the EPPS or its principles, but ministers must be able to show that the EPSS has been considered to an extent commensurate with the circumstances.
Policy is broadly defined under the EPPS to include proposals that lead to legislation, national policy statements, strategies and frameworks, and notably, ministerial statements setting out the government’s formal position on an issue, and any other document that sets out a substantial change in approach to an established position. Making policy also includes making, developing, adopting, revising, or repealing policy.
The precautionary principle is of particular relevance in the context of deep-sea mining.
The Precautionary Principle
The EPPS adopts the definition of the precautionary principle set by the 1992 Rio Declaration on Environment and Development, stating that:
“where there are threats of serious or irreversible environmental damage, a lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation”
The EPPS notes that the precautionary principle is applicable when there is “plausible evidence of a risk … alongside a lack of scientific certainty about the likelihood or severity of this damage.”
Applying the precautionary principle requires firstly identifying the risk and then managing it. The EPPS says this may involve “exercising caution, preventing or limiting the activity until sufficient evidence to support a decision” is available.
Deep Sea Mining and the Precautionary Principle
The Environmental Audit Committee (EAC) recommended in 2019 that the UK support an international moratorium. It found that deep sea mining would have “catastrophic impacts” on the seabed and its ecosystems. Risks identified by the EAC included the physical destruction of habitats and organisms, and impacts on ecosystem function from disturbance of the ocean floor causing sediment to smother seabed organisms. The EAC recommended that the government work with the ISA to ensure that environmental impact assessments required under the ISA exploration regulations will be “robust, based on the precautionary principle, and use the best available scientific evidence.”
In its 30 October announcement, the government set out that the UK would not “sponsor or support the issuing of any licences until sufficient scientific evidence is available to assess the potential impact of deep sea mining activities on marine ecosystems”, and until “strong, enforceable environmental regulations, standards and guidelines have been adopted by the ISA.” The government is to launch a “new environmental science expert network on deep sea mining” to gather further scientific data in this area.
Where mineral resources are situated in the seabed underneath the high seas (i.e., international waters) the UN Convention on the Law of the Sea (UNCLOS), designates them as the “common heritage of mankind.” To regulate exploitation and exploitation activities in this area, the ISA was established under UNCLOS, alongside a dispute resolution mechanism (the Deep Sea Chamber of the International Tribunal for the Law of the Sea), and a commercial arm to engage in deep sea mining joint ventures (the Enterprise).
The ISA member states have so far acted with restraint in light of the environmentally controversial nature of deep-sea mining given gaps in scientific knowledge and the potential impacts. The ISA has issued 31 exploration contracts, and while exploratory small-scale mining has taken place to test equipment, commercial mining of the deep sea bed has not yet started. States must apply to the ISA for a further exploitation licence to be issued before any mining can commence.
In recent years, a number of states have called for a moratorium until further research has been carried out and the full impacts of deep-sea mining can be understood. During the Part II negotiations of the ISAs 28th session in July 2023, an effort to postpone mining until detailed ISA rules and regulations have been agreed was led by countries including Chile, Costa Rica and France.
ISA members are currently negotiating those regulations with the objective of controlling any negative environmental impacts of exploitation, but there have been delays. A revised target of July 2025 for finalising them has been agreed by the ISA Council, where previously the deadline for these regulations was July 2023. Though not legally binding, this target pushes back the expected timeline on deep sea mining commencing in earnest – with certain operators (primarily The Metals Company, sponsored by Nauru) hoping to commence operations in 2024.
The UK is a party to UNCLOS and a member of the ISA and sponsors two exploration contracts in relation to the Clarion-Clipperton Zone in the Pacific Ocean, which were issued to UK Seabed Resources and are currently valid until 28 March 2031.
Mining on the continental shelf, however, falls outside the ISA’s remit and within the coastal state’s jurisdiction. Notably, Norway recently adopted plans to mine in the area between Norway, Greenland and Svalbard.
The EPPS and lifting the moratorium
If sufficient evidence becomes available, the government may, in pursuit of its desire to promote the UK’s security of supply of critical minerals for decarbonisation, seek to alter its position and allow deep sea mining exploration to proceed. A battle could ensue with environmentalists over the whether the government is following the policy it has set out: i.e., whether new scientific advice supporting a policy change is truly ‘sufficient’ to allow a change of course and/or whether the ISA exploitation regulations, standards and guidelines are ‘strong’ and indeed ‘enforceable’.
In making this policy shift, ministers will also be required to have ‘due regard’ to the environmental principles in the EPPS, including the precautionary principle. The more thorough the science at the ISA level to reduce the uncertainties and the stronger the ISA exploitation regulations, the easier it will be for government to demonstrate that the precautionary principle has been applied and no longer mitigates against commercial exploitation going ahead.
Any such change of policy may be expected to give rise to legal challenges. However, the scope for such a challenge will be limited by the nature of the “have due regard” duty and, to succeed in overturning the decision, a legal challenge would also have to contend with the usual approach of the English High Court to allow Ministers a wide discretion to balance other competing policy demands (i.e., the need for electrification in order to achieve the UK’s binding Net Zero target). Any challenge made will also need to be brought within the strict time periods allowed for judicial review (as soon as possible and no later than three months from the date of the decision).
The focus for now, however, is in the international sphere, where we wait to see two things: (i) the outcome of the renewed negotiations at the ISA in February 2024 on mining in international waters; and (ii) whether individual states moving ahead with exploitation on their continental shelves places unbearable strain on ISA members to break away from the moratorium and proceed unilaterally. Watch that space.