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The bill has bipartisan support, but even as Washington State burns, chances for passing it this session are looking slim.

It has been five days since the Old Trail fire burned through northeast Spokane, one of three blazes to encroach on the periphery of Washington state’s second-largest city this week. Tens of thousands of residents remain under evacuation notices, with some still unsure of if their homes are standing. While fire crews used cool weather at the end of the week to dig in new fire lines, this weekend marks the return of hot, dry, and windy red flag conditions.
The fight is far from over — nor is it limited to Spokane. The entire Northwest appears to be ablaze, with 44 large, uncontained fires burning in Washington and Oregon alone.
Something, everyone agrees, needs to be done. Exactly what, though, is a tougher question.
Most prominent among the potential solutions is the Fix Our Forests Act, which has managed to earn bipartisan support in the halls of an increasingly divided Congress. But it has also split the environmental movement in two. Even as the urgency has risen, hope for it to pass during this Congress has diminished, a sign of just how fraught forest management has become in this age of fires.
Initially drafted in 2023 under President Joe Biden, the Fix Our Forests Act aims to modernize forest management practices by sweeping away regulatory hurdles. After passing the House in September 2024, the bill arrived too late in the Senate for a committee vote. The bill was picked up again in 2025 after the Los Angeles wildfires, with its co-sponsor, House Committee on Natural Resources Chair Bruce Westerman, touting it as a way to prevent “future disasters.” (Westerman reintroduced the law with Democratic Representative Scott Peters of San Diego after they bonded over sequoias on a flight.)
With California’s tragedy fresh on the lower chamber’s minds, the bill quickly passed to a floor vote, with 64 Democrats joining all of the Republicans in sending it to the Senate. There, the bill has similar cross-aisle support. As one press email I received from an electrical manufacturer’s industry group in support of the legislation observed, “At least we can agree on wildfire mitigation.”
But though FOFA cleared its Senate committee markup 18-5, the August recess is now looming, meaning the window for a floor vote is narrowing. Given other must-pass bills languishing in the Senate, supporters of the Fix Our Forest Act fear it may once again get booted to the next Congress.
Matt Weiner, the CEO and founder of the nonprofit advocacy group Megafire Action, which backed the bill with a six-figure ad campaign last year, told me he’s nevertheless feeling optimistic. “They’ve gotten the clearances they need on both sides to get it into a must‑pass vehicle, so there’s potential for floor time in September and potential for lame duck movement as well,” he said.
I’ve been speaking with Weiner about FOFA since 2024; against the backdrop of the burning West, he’s getting antsy. “We can’t just be discussing it for the next decade as these treasured landscapes that we love so much go up in smoke,” Weiner said. “The way they’re burning, they’re not going to come back in the way we know the West.”
FOFA aims to prevent fires by making it easier for forest managers to use mitigation practices, such as prescribed burning and mechanical thinning, on federal land. It does this by allowing projects of up to 10,000 acres to qualify for a “categorical exclusion” exempting them from National Environmental Policy Act reviews, more than tripling the current cap of 3,000 acres. It also gives the Forest Service discretion to designate high-risk wildfire regions of up to 250,000-acres as “fireshed management areas,” a determination that bypasses time-consuming public and tribal comment processes, NEPA reviews, and certain Endangered Species Act and National Historic Preservation Act guardrails. The statute of limitations for stakeholders and the public to bring a legal challenge against a management plan is further reduced from six years to 150 days.
In 2025, The Breakthrough Institute, which also supports the bill, found that forest management projects drew more NEPA-related litigation than any other kind, adding an average of two years to their development timeline. “There are plenty of examples where we’ve seen those exact forests where projects were planned go up in smoke,” Emily Bass, the director of federal policy, food, and agriculture at Breakthrough, told me.
Environmental and conservation groups are divided on the bill, though. More than 100 nonprofits and advocacy groups — including the Sierra Club, the Center for Biological Diversity, and Earthjustice — signed onto a letter ahead of FOFA’s Senate committee hearing last fall arguing that “provisions of the bill represent the antithesis of effective, science-based wildfire mitigation and offer false solutions that would harm communities, ecosystems, and biodiversity.”
Of particular concern is the fact that, among more popular wildfire mitigation techniques like prescribed burns, the bill considers “any” timber harvest to be a “hazardous fuels management activity.” That means, in essence, that FOFA would open hundreds of thousands of acres of federal forest to NEPA-free logging in the name of wildfire mitigation.
“It makes sense that there might be some emergency situation where you’d need to get in and quickly remove vegetation on a small area,” Ellen Montgomery, the public lands campaign director for Environment America, told me. But a categorical exclusion of 10,000 acres would create a “‘log first, tell us what you log later’ situation,” she said. “It could be old growth forest. It could be mature. It could be wildlife habitat. It could have serious watershed health impacts, and we literally wouldn’t even know they’ve done it.”
In addition to sidestepping NEPA, a separate provision in FOFA would make it easier to avoid redoing Endangered Species Act consultations at the landscape-plan level if new information about a listed animal or plant emerges, something opponents say is another nail in the coffin of an already substantially weakened ESA.
Weiner is sensitive to criticisms that focus on the bill as a “handout” to corporate timber interests, arguing that “we don’t have examples of a single wildfire categorical exclusion being used inappropriately for timber harvest.”
Alex Craven, the national forest campaign manager for the Sierra Club, wasn’t persuaded by that argument. “It hasn’t been abused yet,” he said. “My counter question would be, why would some of these sweeping authorities need to be as large or expansive as they are?” (Susan Jane M. Brown, the principal and chief legal counsel of Silvix Resources, a nonprofit environmental law firm, later pointed me to a case from earlier this year in which the timber industry used a categorical exclusion in Oregon to justify logging that a judge found “would have no significant impact” on actually reducing fire hazards.)
There is also President Trump’s 2025 executive order establishing timber harvest quotas for the Forest Service. Though FOFA was initially drafted in 2023, under the previous administration, the current Forest Service chief is a former timber lobbyist whose “theory of wildfire prevention [is] you prevent wildfires by not having trees,” the conservation-focused Substack More Than Just Parks has argued. Though supporters of FOFA argue the Trump administration will pursue its timber quotas with or without the bill, Montgomery of Environment America said that complicity on those grounds is “ridiculous.”
“Just because there’s a very permissive executive order that encourages increased logging doesn’t mean it’s a good idea for Congress to pass a law to codify that," she said. “In fact, it makes it worse — a future administration can rescind an executive order. But if this law is on the books that authorizes these large categorical exclusions, that’s much harder to reverse.”
New additions to the bill such as a workforce protection program for Forest Service employees, a consolidated wildland-urban interface grant program, and the streamlined Wildfire Intelligence Center have helped win over some of the more forest management-focused holdouts over the years, including the Nature Conservancy, the National Wildlife Foundation, and the Environmental Defense Fund.
“I can’t speak to other nonprofits’ fears on this, but I can tell you we feel confident that the guardrails with NEPA and public review, and even the categorical exclusion increase of 10,000 acres, are well within the reasonable need for us to carry out our work and also protect important habitat, drinking water, and other aspects,” Eric Sprague, the director of forest conservation at the National Audubon Society, which also supports FOFA, told me. He added that he was particularly excited about a reforestation piece included in the bill, which creates a list of priority projects, as well as its forward-looking seed sourcing program focused on adapting to hotter future habitats.
FOFA is one of a suite of fire management bills in various stages in Congress, including some with overlapping aims. (The Farm Bill that passed the House this spring, for example, contains language expanding categorical exclusions to 10,000 acres.) Some organizations have championed the Community Protection and Wildfire Resilience Act, which has been referred to committee in the Senate and focuses more on community-level resilience measures like home hardening, as an alternative to FOFA.
The Wildfire Emissions Prevention Act is a narrower bill that also has bipartisan support, and entered committee last month. Like FOFA, it has also divided environmental groups with its approach. Though it would ostensibly weaken Clean Air Act protections, it does so in the name of making it easier to greenlight prescribed burns, a well-tested tactic for curbing major fires in certain ecosystems. Bass noted that the Forest Service treated only 1.1 million acres with beneficial fire last year, against a national target of 3.6 million, even despite an influx of Inflation Reduction Act and Infrastructure Investment and Jobs Act funding. An optimal rate, per Breakthrough’s analysis, is closer to 3.9 million acres per year in California alone.
But underscoring the fragmented nature of wildfire mitigation bedfellows and enemies, even WEPA has its skeptics. “EPA’s regulations already provide for [prescribed fire as an exceptional event],” Abi Vijayan, an attorney at the Natural Resources Defense Council who testified against WEPA, told me. “It doesn’t put prescribed fires on the table as a legal matter,” she went on. “It just weakens the guardrails that are already in place in both the Clean Air Act and EPA’s regulations.”
But here’s the $3.4 million question: If FOFA had passed when it was first introduced back in 2024, would the 2026 fire season look the same as it does now? It’s impossible to say. While Weiner pointed to positive examples like the prescribed burn scar that helped save South Lake Tahoe in 2021, experts largely agree that poor or stymied forest management efforts weren’t the root cause of the chaparral fires that burned into L.A. neighborhoods unwisely carved into fire-prone landscapes.
Even the bill’s co-sponsors acknowledge that while the bill might be a “move in the right direction,” it is ultimately meaningless in a greater policy vacuum. As New Mexico Democratic Senator Martin Heinrich put it to me in a statement: “Congress has to provide the meaningful investment to get this work done, and this administration needs to stop undermining the science, our public lands, and the federal workforce that make effective forest management possible.”
Forest management is only one piece of a complex puzzle; we also need to manage our communities, both where and how they are built. Looking at some of the most recent catastrophic fires — in Lahaina, Los Angeles, and Spokane — the unifying trend is not overgrown, untreated forests, but rather the nationwide pattern of suburban encroachment. “Federal land increasingly contributes little to disasters in urban and semi-urban settings,” The New York Times’ David Wallace-Wells wrote in January, marking the anniversary of the L.A. fires. Indeed, despite Westerman’s promise that FOFA would prevent “future disasters,” it likely would have done very little for Spokane, where an arsonist ignited the fire in a state park.
Craven of the Sierra Club emphasized that this is why he opposes the blunt instrument of FOFA when it comes to tackling the hydra that is wildfire. “It’s almost more valuable to look at the wildfire crisis as the wildfire crises in terms of what you are trying to solve,” he said. “Is that the protection of homes and communities? Or is it returning forest health and natural fire cycles to these landscapes? The solutions you come up with need to be matched to the right problems.”
Editor’s note: This story has been updated to correct Abi Vijayan’s employer.
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Can a kit you buy at the hardware store really save your home from a Palisades Fire-sized blaze?
Nicholai Allen, a Southern California wildland firefighter, opened his Instagram DMs this summer to find a photo of a beautiful A-frame home set against a backdrop of mountains and pine forests. At first glance, it looked almost like an advertisement for a vacation rental. But the amazing thing about the picture was not the cozy mountain scene, but the fact that the house was still standing. “Very thankful this product works,” read the accompanying text. “Saved our house and all our outbuildings. Little Giant Fire.”
Allen is a firefighter — he was on the scene when the Pacific Palisades burned in 2025 — and a wildfire survivor, having evacuated his family from the deadly Woolsey Fire near Malibu in 2018. He’s also the founder of Safe Soss, a home-hardening company advertising a “three-step supplemental wildfire defense system,” which includes a carbon filter ember guard, ember tape, and the company’s marquee product: an ammonium phosphate-based wildfire risk-reduction spray. They’re all sold at Lowe’s, where you can get the whole kit for less than $200.
“In the aftermath [of the Woolsey fire], I kept asking: How come some homes survived, and some didn’t?” Allen recounted to me. “Some get retardant dropped on them, and some don’t. I thought, ‘Why don’t homeowners just do their own fire‑retardant drops so we’re not leaving that to chance?’”
The Little Giant Fire was Washington’s biggest fire of the 2026 season, and hearing from the homeowner who made it through intact “made my whole year, frankly,” Allen told me. But one happy customer doesn’t settle the lively and ongoing debate in the fire safety world about the effectiveness of wildfire mitigation products, which can range from lumber and vegetation treatment sprays to rooftop sprinkler systems and mesh vent covers. Some products — like a Class A metal roof resistant to ordinary combustible material like wood — are widely agreed to be effective, but can cost $10,000 or more. An off-the-counter mesh vent, spray, or treated wood is vastly cheaper — and certainly less overwhelming to install — but also a grayer area in terms of efficacy.
“To me, the concept of treating wood because you think it’s going to be fire-resistant or not ignitable is fooling yourself,” Beth Burnam, the Firewise USA Regional Coordinator for California’s Mono and Inyo counties, told me.
No single certification, organization, or agency vets new home-hardening treatments and systems before they hit the market, even as that market continues to grow; one estimate puts the wildfire home retrofit industry at $4.8 billion by the end of 2033, up from $2.1 billion in 2024. The stakes are high for homeowners, too, who not only put their faith in the hands of such products to protect what’s likely their largest asset, but who might spend $2,000 to $87,000 on a full hardening retrofit, a 2025 study by Earth Economics found.
Burnam’s assessment of the burgeoning home hardening market was blunt. “There’s a lack of knowledge base, and then there’s all the shysters out there trying to sell you the next best, greatest product that will let people pretend to sleep at night,” she said.
At the same time, it’s not the Wild West for home hardening products. The California State Fire Marshal tests wildfire-resistant building products and publishes a handbook of approved materials. The Insurance Institute for Business & Home Safety, a scientific research group that operates a large-scale ember lab for lighting things on fire, has also published a series of white papers on mitigation product categories, including one on flame retardant coatings.
In that report, the IBHS found that sprays and paints could potentially provide “enhanced protection to buildings during a wildfire” — but its researchers also raised concerns about the products’ durability. “It’s really hard to have something that you spray or paint onto a wooden surface maintain its fire-resistant or retardant capacity in a period that’s longer than a year,” Spencer Eusden, the curriculum developer of Living With Fire, a wildfire preparedness and education program based out of the University of Nevada, Reno, explained to me. “There’s so much UV exposure; there’s moisture. Wood contracts and expands as it changes temperature, so it’s hard to maintain a treatment.”
That conclusion is consistent with similar research by the U.S. Forest Service around flame-resistant paints. Laura Hasburgh, a materials research engineer at the Forest Service’s Forest Products Laboratory in Madison, Wisconsin, and one of the authors of that study, told me in an email that while flame-retardant vegetation treatments fell out of the scope of that particular research, she’s skeptical about them, too. “A vegetation spray might temporarily alter fuel moisture or flammability under particular conditions, but its performance could be affected by time since application, rainfall, irrigation, heat, wind, plant growth, uneven coverage, and the intensity of an approaching fire,” she said.
“In general, a product’s marketing claims should not be treated as proof that it can protect a home or stop a wildfire,” Hasburgh added. In general, she encouraged customers to “look for independent test results” and find out whether a company’s claims are “supported by a recognized testing organization or fire-safety authority.”
That doesn’t mean all sprays and foams are worthless, though. Stuart Mitchell, the founder of Wildfire Mitigation Advisors, a Santa Rosa-based home hardening consultancy, told me they have a time and place. “A simple example is: I would say, don’t have a fence connected to your home,” he said. “But if you say, ‘Well, my dad made that fence and gate, and it’s really dear to me,’ I’d say let’s keep it. Let’s go to plan B: Give that fence or gate defensible space, and then coat it in a long-lasting flame retardant coating.” Eusden, the Living With Fire curriculum developer, likewise said vegetation treatments can be useful when done by professionals, though he echoed Hasburgh’s urging that most homeowners are likely to find their time and energy better spent on other treatments such as moving vegetation back from a house.
Safe Soss’ spray, notably, is intended as a temporary treatment rather than a long-term solution. It’s designed to be applied during a red flag warning or when a home is under a pre-evacuation notice, which Allen said means it doesn’t need to last as long as a once-a-decade paint job. (He told me that a single application can last up to three months.) The product was self-certified by its Japanese manufacturer in a standard UL crib test, which is used to test fire extinguishers against a standardized pile of burning sticks (a “crib”) in a lab. But it also means it was only formally lab-tested as a “wetting agent,” i.e. basically a fire extinguisher, rather than as a retardant used to treat wood or vegetation before a fire. It’s a distinction that Allen is conscious of, since he doesn’t want Safe Soss to encourage people to stay behind and use it to fight fires themselves.
Instead, Allen told me he’s field-tested Safe Soss by using it himself on prescribed burns — that is, to help contain controlled intentionally set fires ignited by other fire professionals, sans the chaos of an actual wildfire but under real world conditions in a forest or field, rather than in a lab. The results were enough to give him the confidence to launch the product for commercial sale. “I can pursue more certifications as time goes on,” he told me. “But if I can help people right away, I’m not going to hold it up until I get some arbitrary number.”
Another company, CitroTech, produces what it boasts is the “only long-term fire inhibitor recognized by the EPA Safer Choice program,” a voluntary certification that is focused not on fire resistance but on the use of safe chemicals. While the company also makes an outdoor vegetation treatment spray, its chemicals are primarily designed for treating interior lumber, where concerns about weathering are less of a factor, Aaron Good, the company’s director of sales, told me. (California State Fire Marshal has not certified CitroTech, but the company is working to get it onto the Forest Service’s Qualified Products List.)
CitroTech also installs rooftop sprinklers on homes, which can activate during a wildfire to saturate a roof and surrounding vegetation with, in this case, CitroTech's proprietary fire inhibitor. But many home-hardening experts I spoke with expressed doubt about sprinkler systems more generally, which often rely on water mains and electrical grids that are prone to fail during major disasters. “After you’ve done all your other home hardening and defensible space work that you need to do, if you still have money left over, go ahead and buy a sprinkler system,” Burnam said. “But understand, it probably won’t work.”
Other experts warned that the water or chemical treatment likely won’t go where you need it to, could be blown away by the high winds that often accompany major conflagrations, or cause water damage to the home. Good himself acknowledged that fires can burn for weeks, offering the example of the 2025 Palisades fire, which burned for 28 days. “If you’re trying to protect a home or a property, that means you need access to water and power for the full 28 days throughout.” CitroTech’s chemical applicant uses no water, insulating it from the water failure problems its competitors face in a disaster like Palisades, though it still relies on working electricity.
Burnam told me that one of the fundamental problems with home hardening is a misunderstanding of how homes actually ignite. For too long, she said, experts — and firefighters in particular — have focused on direct flame contact as a source of ignition, such as when a bush or tree alongside an exterior wall of a home catches fire, and it spreads to the house. Direct flame contact makes creating a defensible space important — that is, the all-important buffer zones around your home where vegetation is removed in order to slow the progress of a wildfire. But it’s also why sprays and plant treatments can be so seductive to a concerned homeowner browsing the shelves of their local hardware store: It’s probably how you’d imagine a home catching in a wildfire, but you’d mostly be wrong.
Homes can also ignite from radiant heat, when materials exposed to a nearby fire get so hot they combust. But it’s the third ignition pathway, embers, that causes an estimated 90% of housing loss and damage during wildfires. Embers can travel two miles or more from the main fire front and drift into garages and attics through vents, igniting a house from the inside out. They also tend to accumulate in gutters or at meeting points between materials, such as an angle on a roof or at the edge where a house meets a deck. This is why roof replacements and covered gutters, while extraordinarily costly, are some of the best money you can spend to protect your home.
In fact, when Allen received the DM about the home in the Little Giant Fire, the homeowner didn’t credit the company’s smoke-filtering vent cover or its wood- and vegetation-treatment spray directly. Rather, they sent photos of the company’s “ember tape,” which the homeowner used to keep flammable material out of potential access points as the fire encroached.
Along with vent covers featuring eighth-of-an-inch holes of noncorrosive metal mesh — such as those sold by Wildfire Defense Mesh, which Burnam called “absolutely the gold standard” — it is the nitty-gritties of stopping embers from entering or accumulating on a house that seem to be the best hardware store-derived trick to preventing your house from burning down.
The risk, according to many of the researchers I spoke with, is that off-the-shelf or unvetted products could lull homeowners into a false sense of security. Allen, the Safe Soss founder, said his primary goal is the exact opposite: He wants people to leave their homes as early as possible. “I’ve witnessed loss of life from people staying behind during active evacuation orders because they had a trash pump and a fire hose from their pool,” he told me.
“If you don’t feel like you can evacuate because you haven’t given your home that fighting chance,” he added, “I’m hoping that these tools will provide you enough comfort to leave and save your life.”
Current conditions: A summer-like heat wave is driving up temperatures in Los Angeles past 100 degrees Fahrenheit • Hurricane Nolo is transitioning into Typhoon Nolo as it shifts into the western Pacific with winds of up to130 miles per hour • Hurricane Rachel is moving toward Mexico, stirring danger swells in Baja California.
The United States Supreme Court is starting its new nine-month term today hearing arguments in a major case from Exxon Mobil and Suncor Energy attempting to thwart a lawsuit by the city of Boulder, Colorado, seeking damages for the effects of climate change. SCOTUSblog called the litigation “one of biggest cases” of the next year, and “certainly one of the most significant business cases.” The conclusion of the case could scuttle dozens of similar lawsuits pending across the country. My colleague Emily Pontecorvo wrote earlier this year that the case has been winding up through the courts since 2018.
Meanwhile, 21 states and four cities united to sue the Trump administration last week over the Environmental Protection Agency’s repeal of all limits on greenhouse gas pollution from power plants. “This administration’s insistence on giving the nation’s biggest polluters a free pass will set our country back decades in the fight against climate change,” Letitia James, the attorney general of New York, told The New York Times. “Dismantling these protections is a betrayal of American families.”

In 2019, Luiz Inácio Lula da Silva, the once and future president of Brazil, emerged from prison and two years later, won back the nation’s top job from right-wing hardliner Jair Bolsonaro. Now Bolsonaro is in prison, and his son, Flávio Bolsonaro, is vying against the Brazilian leader commonly known as Lula for the country’s presidency. The candidates led the first round of voting, which finished Sunday, and will advance to the next round of voting on October 25, according to a tally on Folha de S.Paulo, the nation’s leading newspaper.
Under Lula’s reign, Brazil conserved an area of rainforest roughly the size of the state of New Jersey, all while ramping up oil production. Bolsonaro the younger threatens a return to his father’s policies of ramping up development in the Amazon and other wildernesses. “This is really bad for the Amazon — its Indigenous land defenders, its ecology. We’re getting close to the whole rainforest tipping into a savannah equilibrium; brutal for climate,” Daniel Aldana Cohen, an assistant professor at the University of California at Berkeley who has studied Brazilian climate politics, wrote on X. “These are years of incredibly high-stakes struggle between life & fascism.”
The price of Brent crude shot up to nearly $103 per barrel Sunday after Yemen’s Houthi rebels claimed to have attacked an Aramco refinery in the Saudi capital of Riyadh. In a statement posted Saturday on X, Houthi military spokesman Yahya Saree said the Iran-backed militants had launched “ballistic missiles and drones” at two facilities owned by the Saudi state oil company. Later on Saturday, Al Jazeera reported that the Saudi-led coalition supporting Yemen’s internationally recognized government had called the Houthi claims “misleading,” instead noting that the Houthis had suffered 97 “precise targeting operations” over the weekend.
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The Department of Energy is expected to announce a roughly $4 billion loan package to utility Vistra Corp. later today during Secretary of Energy Chris Wright’s visit to the Perry nuclear complex northeast of Cleveland that will fund upgrades to three of its nuclear stations. That’s according to reports in Bloomberg and Reuters. The package will fund upgrades at Vistra’s plants in Ohio and Pennsylvania.
It’s the latest attempt by the Energy Department to prop up the nuclear industry. In June, the Trump administration made what my colleague Robinson Meyer called its “big nuclear play,” providing nearly $20 billion in loans to joint ventures between the nation’s flagship reactor developer Westinghouse and utilities seeking to build the next AP1000s. South Korea, meanwhile, agreed last week to help build six AP1000s and two of the country’s own APR1400s, which Westinghouse has previously accused the state-owned Korea Hydro & Nuclear Power of ripping off from the leading American design.
International shipping giant FedEx has placed a record-setting order for 2,000 all-electric box trucks from the American startup Harbinger Motors, in a deal that — while reportedly worth more than $300 million — could save the company nearly three times as much in diesel costs, according to Electrek. As my colleague Matthew Zeitlin wrote recently, now is the worst time for diesel prices to surge.
When Rob caught up with Harbinger’s co-founder on our Shift Key podcast last year, the entrepreneur was largely discussing how tariffs had shifted the company’s manufacturing policy. But the Trump administration policy now making the bigger difference may be the effects of the war on diesel prices.
America’s favorite instant coffeemaker may be ready to put an end to its pod pollution. Keurig Dr. Pepper has launched AltaRounds, a new way of brewing coffee that the company says will slash waste by creating one-cup portions made from compressed coffee wrapped in a coating derived from seaweed instead of plastic, Bloomberg reported. AltaRounds can be disposed of like coffee grounds and can be composed at home. But using them will require buying a new kind of machine.
The proposal resolves an issue that has bedeviled the industry since 2022.
Is Rosemont about to be BAAJA blasted away?
In a 2022 decision formally titled Center for Biological Diversity v. U.S. Fish & Wildlife Service, the Ninth Circuit Court of Appeals ruled that Rosemont Copper Company its claim under the General Mining Act of 1872 did not give the company license to dump literally millions of tons of waste rock on adjacent Forest Service land. Though Rosemont argued that the use fell under the law’s provisions for “mill sites” on public lands used for mining, the court found that because the parcel in question lacked valid mining claims of its own, the Mining Act did not justify its use under its own permissive regime.
The conservative energy group ClearPath Action described the decision as “a significant departure from long-held mining practices.” Industry groups said that the decision would vastly extend and complicate the process of mining on public lands by putting areas with mineral claims into a separate legal and permitting category from adjacent land that had customarily been considered part of the mining development.
Almost immediately after the court decision, the mining industry and its allies in Congress got to work trying to “fix” the Rosemont decision in order to restore the pre-2022 status quo.
One proposed fix — the Mining Regulatory Clarity Act — has been introduced several times in both houses of Congress, including as far back as 2023 in a Senate bill co-sponsored by Catherine Cortez Masto of Nevada and Jim Risch of Idaho.
Another version of the bill, sponsored by Nevada Republican Mark Amodei, Nevada Democrat Steven Horsford, and Alaska Republican Mark Begich, passed the House of Representatives late last year with a handful of Democratic votes. Both bills would have explicitly established that miners could claim public land for waste rock disposal as long as it was “reasonably necessary” and “reasonably incident” to mineral development.
Now they may all be getting their wish. The comprehensive permitting bill introduced by Republican and Democratic leaders in the Senate known as the Bipartisan American Affordability and Jobs Act, includes the full text of the Mining Regulatory Clarity Act
Both parties have been trying to jumpstart the domestic mining and critical minerals industry, especially for materials key to energy sectors, such as copper and lithium. The long lead time it takes to permit and open a mine is one of the major barriers to developing the domestic mining industry (along with nasty price competition from overseas miners and refiners, especially those controlled by Chinese firms).
This is not the first time a bipartisan permitting bill has included what’s known a “Rosemont fix.” There was also one in the 2024 Energy Permitting Reform Act, and in the Senate FREEDOM Act introduced by Cortez Masto and Arkansas Republican Tom Cotton this past summer.
You may have noticed lots of Nevadans associated with these bills. That’s because “Nevada is to mining as Texas is to oil and gas,” Aaron Mintzes, deputy policy director of Earthworks, a frequent and vigorous adversary of the mining industry, told me
While environmental groups generally supported the Rosemont decision, some groups supporting the clean energy industry backed the Mining Regulatory Clarity Act, including Bipartisan Policy Center’s lobbying arm, the clean energy trade group Advanced Energy United, and the Zero Emission Transportation Association, which includes several copper and lithium companies among its members. (Mintzes described ZETA as “the lithium mining lobby” and an “outlier” among clean energy groups in supporting the Mining Regulatory Clarity Act.)
Instead of a technical fix that would comply with the spirit of existing law, Mintzes described the changes to mining regulation in BAAJA as giving mining companies “a nearly unlimited amount of public lands for their waste dumps, for their roads, for their pipelines, for their transmission lines, and for any other purpose that would be reasonably incident to mining.” That goes beyond the mill sites envisioned by the 1872 law, he said.
The National Mining Association, on the other hand, praised the bill Wednesday, with its president Rich Nolan saying in a statement that the existing permitting process is “mired in duplication, endless litigation and uncertainty,” and that “elected officials on both sides of the aisle have long acknowledged that the status quo cannot continue.”
Albert Gore, the executive director of the Zero Emission Transportation Association, told me that there was a “broad recognition” among miners, refiners, and operators that the Rosemont decision required a statutory fix.
“It needed to be clarified in order to remove uncertainty. It's hard enough to invest in mineral production in the United States,” Gore said.
BAAJA’s mining provisions also include the Abandoned Hardrock Mine Fund, which would be funded by maintenance fees collected by the Department of the Interior under the same 19th century mining law. This fund would support a program established by the 2021 Bipartisan Infrastructure Law to clean up abandoned mining sites.
In a transcript of a strategy call between environmental organizations on the BAAJA published by Punchbowl, Mintzes described the fund as “the one good thing I spotted in this bill so far.”