Deep Seabed Mining Litigation Risk: The Offshore Critical Minerals and Resources Executive Order
Sign Up for PublicationsI. Introduction
On April 24, 2025, the White House issued an Executive Order entitled Unleashing America’s Offshore Critical Minerals and Resources (the “EO”). The EO directs the Secretary of Commerce, acting through the National Oceanic and Atmospheric Administration (“NOAA”), to, within 60 days, “expedite the process for reviewing and issuing seabed exploration licenses and commercial recovery permits in areas beyond national jurisdiction.”[1] Charting the course for American entities to mine the deep seabed of international waters at scale, the EO opens new frontiers—both in commercial mineral extraction and in complex regulatory litigation.
The EO implicates a number of potential channels of litigation, including, most notably, the private right of action under the Deep Seabed Hard Minerals Resources Act (“DSHMRA,” or, the “Act”).[2] The Act serves as the framework for licensing and permitting as contemplated by the EO, and potential litigants may bring actions for equitable relief against private parties or NOAA for various forms of non-compliance. This note explores the legal context of the EO and the prospects for litigation surrounding it.
a. Deep Seabed Mineral Mining
Portions of the deep seabed are covered in polymetallic nodules, which contain critical rare earth minerals like cobalt, manganese, and other metals that are increasingly significant in defense and technology applications.[3] Deep seabed mining involves harvesting these nodules from the seabed. The EO is one front of the White House’s broader efforts to decouple from and surpass China with respect to this significant resource.[4]
In a drastic departure from prior Administrations, under which no permits for commercial recovery have been issued, the current Administration seeks to “counter China’s influence in the seabed mineral resource space” by “establishing the U.S. as a global leader in seabed mineral exploration and development both within and beyond national jurisdiction.”[5]
Various interest groups have expressed serious concerns about the environmental impact of deep seabed mining.[6] These concerns include biodiversity loss, declining fish stocks, exacerbated effects of climate change, and cultural infringements with respect to indigenous peoples.[7] Its proponents claim that it is the most ecologically sound means available to support a growing economy increasingly dependent on rare earth minerals.[8]
b. Licensing and Permitting Framework
Exploration licenses and commercial recovery permits will be granted under the DSHMRA and its implementing regulations as promulgated by NOAA.[9] DSHMRA is a 1980 statute, implemented by NOAA, which regulates international, deep seabed mineral mining operations by domestic entities.
Licenses and permits issued under the Act are exclusive within the territory for which they are granted.[10] They are available only to U.S. citizens,[11] defined to include foreign entities controlled by such citizens.[12] Permits for commercial recovery have a 20 year term, subject to termination if the permittee “is not recovering hard mineral resources in commercial quantities at the end of 10 years.”[13] The applicant is responsible for selecting the size and location of the area of the exploration plan or recovery plan, which will be approved unless the area is “not a logical mining unit” or “commercial recovery activities in the proposed location would result in a significant adverse impact on the quality of the environment which cannot be avoided by the imposition of reasonable restrictions.”[14] Licenses and permits may be transferred, but only through the Administrator, who must find that “the proposed transfer is in the public interest” and that “the proposed transferee and the exploration or commercial recovery activities the transferee proposes to conduct meet the requirements of” the Act.[15]
The United States’ authority to unilaterally issue permits to conduct mining beyond its territorial sovereignty is hotly contested. But the Act notes that “it is the legal opinion of the United States that exploration for and commercial recovery of hard mineral resources of the deep seabed are freedoms of the high seas subject to a duty of reasonable regard to the interests of other states in their exercise of those and other freedoms recognized by general principles of international law.”[16] This interpretation suggests the current administration will proceed with permits, notwithstanding international opposition.
c. International Law
The Act was initially developed in 1980 as an interim framework to govern deep seabed mining activities pending the establishment of an international regulatory regime by the International Seabed Authority (“ISA”).[17] That international regulatory body was established by the United Nations Convention on the Law of the Sea (“Convention”). The ISA has still not developed regulations for commercial exploitation,[18] but has issued at least 30 contracts for exploration.[19] The United States is not a signatory to the Convention, despite active participation of the Reagan Administration in its negotiation.[20] Yet, to date, the United States has likewise only issued exploratory licenses—not commercial recovery permits—under the DSHMRA.[21]
That the United States has not issued permits for actual mining operations in the international deep seabed is likely due to controversy around its ability to do so consistent with international law, given that ISA regulations currently forbid deep seabed mining in international waters.[22] Some commentators have argued the United States has a sovereign prerogative to unilaterally authorize such activity.[23] But, in the wake of the Executive Order, the ISA, as well as over 30 individual nations,[24] including China,[25] have argued that “any commercial exploitation outside of national jurisdiction carried out without the authorization of ISA would constitute a violation of international law.”[26] This uproar has largely centered around the first-ever application for a commercial recovery permit, which was filed April 29, 2025 by a U.S. subsidiary of The Metals Company (“TMC”).[27] TMC expects an initial determination of completeness within 60 days, followed by a more comprehensive review of environmental and technological specifications.[28] At this point, TMC appears to be the only entity that has made such an application.
II. Potential for Domestic Litigation
The ISA has no clear authority to enforce these assertions at the international level, and the “patchwork of jurisdictional rules that will apply to deep-sea mining beyond national jurisdiction” is outside the scope of this note.[29] There is, however, a relatively clear path to the litigation of related issues in the United States. Such litigation might include broad challenges on the basis of domestic public law—whether Constitutional or statutory—to the EO itself, the DSHMRA, or the Act’s implementing regulations.
a. DSHMRA’s Private Right of Action
This note focuses on a narrower channel of litigation, concerning the issuance of permits, which is likely to be of most immediate interest. DSHMRA creates a private right of action, whereby parties with standing may sue for equitable relief (and possible fees) in the District Court for the District of Columbia either (1) the NOAA Administrator, if he fails to perform a non-discretionary duty under the Act, or (2) any person in violation of a provision of the Act or a license or permit granted thereunder.[30]
Potentially cognizable harms conferring standing to sue might include, for example, injuries to environmental interests;[31] competitive harm flowing from agency action,[32] including under certain circumstances the award of a license to a competitor;[33] or even impairment of sovereign prerogatives, although foreign sovereigns have been unsuccessful in asserting such claims.[34]
Assuming the existence of a legally cognizable injury, then, various constituencies could bring challenges against the Administrator or a private party in violation of the Act or a license or permit granted thereunder seeking to vindicate environmental, commercial, or even possibly international legal interests in a federal court or through arbitration. Litigants might also align these apparently distinct interests into complex strategic combinations.
Because DSHMRA licensing and permitting activity has been minimal, there has been little, if any, litigation under the Act to date. Nevertheless, litigation under analogous statutory and regulatory regimes provides a window into how litigation related to the Act may develop.[35]
b. Possible Claims
Private litigants are enabled by the DSHMRA to bring actions against private parties, including licensees and permit-holders, for failure to comply with the terms and conditions of the Act.[36] Under this provision, as under the provision for suits against the Administrator, only equitable relief, not damages, is available.[37] The court, however, “may award” costs and fees “to any party whenever the court determines that such an award is appropriate.”[38]
One line of litigation under similar provisions seeks to enjoin licensees or permit-holders from carrying out operations alleged to be in violation of the terms of the applicable license or permit—including obligations imposed by other statutory or regulatory schemes by cross-reference.[39] This approach would allow plaintiffs to sue for alleged environmental harms.
Notably, the DSHMRA expressly prohibits “exploration or commercial recovery” not authorized by “an international agreement which is in force with respect to the United States,”[40] suggesting the possibility of challenges to such activity with reference to international law if the United States proceeds unilaterally. The Act moreover directs the Secretary of State to “use all peaceful means,” including “negotiation, conciliation, [and] arbitration” in the event that “nationals of other states” interfere in the lawful activities of a licensee or permittee.[41]
Operating without a license or permit would likewise expose private parties to litigation under the DSHMRA.[42] What’s more, private parties operating without a license or permit, or with a license or permit but in violation of the provisions of the Act, are subject to a variety to government enforcement actions, up to and including criminal liability.[43] Importantly, while enforcement actions may not be a priority of the current Administration, it will be critical to remain in close compliance with the terms of the Act to mitigate uncertainty under future Administrations, particularly given the duration of permits and licenses.
Private litigants are also enabled by DSHMRA to bring actions against the NOAA Administrator for dereliction of any non-discretionary duty.[44] Such challenges could be focused on any number of administrative activities under the Act, including, for example, rulemaking.[45] This could conceivably include challenges related to the issuance of a license or permit itself, although the contours of such a challenge have been limited.[46]
III. Strategic Conclusions
Participants in this space should anticipate a perfect storm of complex, high-profile legal action. The EO calls for the expedited issuance of exclusive permits and licenses to carry out an activity with tremendous potential economic significance. This will occur under a domestic regulatory regime that has not yet been tested through litigation, in an industry fraught with environmental concern, and against the backdrop of international legal uncertainty.
Prospective plaintiffs might strategically develop hybrid new forms of legal action, synthesizing impact litigation, “bid protests,” and international law. Such litigation might resemble recent actions brought against Exxon by environmental groups and the Attorney General of California, which Exxon contends were instigated and financed by a competitor in the energy space.[47] Therefore, prospective plaintiffs will need to consider key questions such as who to sue—be it a private entity or the NOAA Administrator; whether they will sue in their own capacity, or instigate suit via a surrogate plaintiff; their grounds for standing to sue; and their basis for suit.
Prospective permittees should prepare accordingly. It will be important to continue to develop (1) expertise in the relevant statutory and regulatory frameworks, including those aspects linked to international legal regimes, and to monitor the same for change; (2) tactical knowledge of the nuances of the procedural channels through which litigation may flow; and (3) relationships with key actors in the federal government.
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[1] EO at § 3(a)(i).
[2] 30 U.S.C. § 1401 et seq.
[3] Exploring the Potential of Deep-Sea Mining to Expand American Mineral Production: Hearing Before the H. Comm. on Nat. Res., 119th Cong. 1 (2025) (Hearing Memorandum to H. Comm. on Nat. Res. Republican Members from S. Comm. on Oversight and Investigations Staff) (available at https://naturalresources.house.gov/uploadedfiles/hearing_memo_--_sub_on_oi_ov_hrg_on_seabed_mining_04.29.25.pdf).
[4] Kenza Bryan and Demetri Sevastopulo, Donald Trump plans to stockpile deep-sea critical metals to counter China, Fin. Times (Apr. 12, 2025), https://www.ft.com/content/2205fc9a-67b5-4112-9b7f-cd89d011f5bb. Indeed, as part of its tariff war with the U.S., China has “impose[d] calculated export controls on rare earth elements.” Seong Hyeon Choi, Are US weapons at risk as China’s rare earth export curbs choke critical mineral access?, South China Morning Post (May 11, 2025), https://www.scmp.com/news/china/military/article/3309720/are-us-weapons-risk-chinas-rare-earth-export-curbs-choke-critical-mineral-access.
[5] The White House, Fact Sheet: President Donald Trump Unleashes America’s Offshore Critical Minerals and Resources (Apr. 24, 2024) (available at https://www.whitehouse.gov/fact-sheets/2025/04/fact-sheet-president-donald-j-trump-unleashes-americas-offshore-critical-minerals-and-resources/).
[6] Exploring the Potential of Deep-Sea Mining to Expand American Mineral Production: Hearing Before the H. Comm. on Nat. Res., 119th Cong. 1 (2025) (Written testimony of Duncan E.J. Currie) (available at https://docs.house.gov/meetings/II/II15/20250429/118089/HHRG-119-II15-Wstate-CurrieD-20250429.pdf).
[7] World Wildlife Fund, Analysis of the Implications of Deep Seabed Mining for the Global Biodiversity Framework and the Sustainable Development Agenda (March 2025) (available at https://wwfint.awsassets.panda.org/downloads/wwf-report---analysis-of-the-implications-of-deep-seabed-mining-for-the-global-biodiv.pdf).
[8] Id. (Written testimony of Gerard Barron) (available at https://docs.house.gov/meetings/II/II15/20250429/118089/HHRG-119-II15-Wstate-BarronG-20250429.pdf); id. (Written testimony of Oliver Gunasekara) (available at https://docs.house.gov/meetings/II/II15/20250429/118089/HHRG-119-II15-Wstate-GunasekaraO-20250429.pdf).
[9] 15 C.F.R. § 970.
[10] 30 U.S.C. § 1412(b)(2), (c)(1)(B).
[11] 30 U.S.C. § 1413(a)(1).
[12] 30 U.S.C. § 1403(14)(C). Exploratory licenses have been granted to such foreign entities in the past. See Cong. Research Serv., U.S. Interest in Seabed Mining in Areas Beyond National Jurisdiction: Brief Background and Recent Developments (available at https://www.congress.gov/crs_external_products/IF/PDF/IF12608/IF12608.10.pdf) at 1.
[13] 30 U.S.C. § 1417(b).
[14] 30 U.S.C. § 1413(a)(2)(D).
[15] 30 U.S.C. § 1425(b).
[16] 30 U.S.C. § 1401(a)(12).
[17] John Alton Duff, UNCLOS and the New Deep Seabed Mining Regime: The Risks of Refuting the Treaty, 19 Suffolk Transnat’l L. Rev. 1, 8 (1995).
[18] Int’l Seabed Auth., The Mining Code: Draft Exploitation Regulations (available at https://www.isa.org.jm/the-mining-code/draft-exploitation-regulations-2/).
[19] Alexander W. Read, Unilateral and Multilateral Deep-Sea Mineral Mining Regulations: Why an Effective Enforcement Mechanism Is Needed in Order to Promote Responsible Mining Practices in the Future, 27 Ocean & Coastal L.J. 187, 218 (2022).
[20] Steven Groves, The U.S. Can Mine the Deep Seabed Without Joining the U.N. Convention on the Law of the Sea, Heritage Found. (Dec. 4, 2012) (available at https://www.heritage.org/report/the-us-can-mine-the-deep-seabed-without-joining-the-un-convention-the-law-the-sea).
[21] Cong. Research Serv., U.S. Interest in Seabed Mining in Areas Beyond National Jurisdiction: Brief Background and Recent Developments (available at https://www.congress.gov/crs_external_products/IF/PDF/IF12608/IF12608.10.pdf) at 1; Christiana Ochoa, Contracts on the Seabed, 46 Yale J. Int’l L. 103, 153 (2021).
[22] A Trump executive order will unleash a global deep-sea mining boom, The Economist (Apr. 25, 2025), https://www.economist.com/international/2025/04/25/a-trump-executive-order-will-unleash-a-global-deep-sea-mining-boom.
[23] Groves, supra at 10.
[24] Eric Lipton, Trump-Era Pivot on Seabed Mining Draws Global Rebuke, N.Y. Times (Mar. 30, 2025), https://www.nytimes.com/2025/03/30/us/politics/trump-mining-metals-company.html.
[25] Max Bearak, China Says Trump’s Order on Seabed Mining Violates International Law, N.Y. Times (Apr. 25, 2025), https://www.nytimes.com/2025/04/25/us/china-trump-seabed-mining-international-law.html.
[26] Int’l Seabed Auth., FAQ for Media (available at https://www.isa.org.jm/faq-for-media/); see also Int’l Seabed Auth., Statement on the US Executive Order: ‘Unleashing America’s Offshore Critical Minerals and Resources’ (Apr. 30, 2025), https://www.isa.org.jm/news/statement-on-the-us-executive-order-unleashing-americas-offshore-critical-minerals-and-resources/.
[27] Press Release, The Metals Company, World First: TMC USA Submits Application for Commercial Recovery of Deep-Sea Minerals in the High Seas Under U.S. Seabed Mining Code (Apr. 29, 2025) (available at https://investors.metals.co/news-releases/news-release-details/world-first-tmc-usa-submits-application-commercial-recovery-deep).
[28] Id.
[29] Hanna Lilly et al., Enforcement of Deep-Sea Mining Regulations at Sea: Unpacking the Tangle of Overlapping Jurisdictions in International Waters, Pew Trusts (Feb. 14, 2024) (available at https://www.pewtrusts.org/-/media/assets/2024/03/code-project---jurisdictional-issues---final.pdf) at 1.
[30] 30 U.S.C. § 1427(a).
[31] See, e.g., Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 184-85 (2000).
[32] See, e.g., Louisiana Energy & Power Auth. v. FERC, 141 F.3d 364, 367 (D.C. Cir. 1998).
[33] See, e.g., High Plains Wireless, L.P. v. F.C.C., 276 F.3d 599, 605 (D.C. Cir. 2002).
[34] See, e.g., Canadian Lumber Trade All. v. United States, 517 F.3d 1319, 1337–38 (Fed. Cir. 2008).
[35] This article will refer to actions brought under the Surface Mining Control and Reclamation Act, 30 U.S.C. § 1201 et seq. (“SMCRA”), whose citizen suit provision, 30 U.S.C. § 1270, mirrors that of that of DSHMRA.
[36] 30 U.S.C. § 1427(a)(2).
[37] 30 U.S.C. § 1427(a).
[38] 30 U.S.C. § 1427(c).
[39] See, e.g., W. Virginia Highlands Conservancy v. Brooks Run Mining Co., LLC, 2022 WL 677573, at *9 (N.D.W. Va. Mar. 7, 2022) (state regulatory scheme pursuant to which SMCRA licenses were issued required compliance with the Clean Water Act).
[40] 30 U.S.C. § 1411(a)(1)(C).
[41] 30 U.S.C. § 1412(b)(4).
[42] 30 U.S.C. § 1411(a)(1)(A).
[43] 30 U.S.C. § 1461-66.
[44] 30 U.S.C. § 1427(a)(1).
[45] See, e.g., Nat’l Mining Ass’n v. Kempthorne, 512 F.3d 702, 704 (D.C. Cir. 2008) (“The Secretary of the Interior has interpreted the phrase “valid existing rights” in the Surface Mining Control and Reclamation Act to foreclose surface mining operations in sensitive areas. The National Mining Association challenges this reading of the statute, but we conclude that we must defer to the Secretary’s reasonable interpretation of this ambiguous phrase.”).
[46] See Citizens for Const. Integrity v. United States, 70 F.4th 1289, 1295, 1301-02 (10th Cir. 2023). Interpreting the SMCRA’s citizen suit provision, the Tenth Circuit explained that “the language failure to perform any act or duty under this statute which is not discretionary…allow[s] parties to challenge agency failures to take nondiscretionary actions, but not to challenge the agency’s exercise of discretion” in issuing a permit. Id. at 1297-98. The operative language here is substantively identical to the DSHMRA. Compare 30 U.S.C. § 1427(a)(2) (“against the Administrator when there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary”) with 30 U.S.C. § 1270(a)(2) (“against the Secretary or the appropriate State regulatory authority…where there is alleged a failure of the Secretary or the appropriate State regulatory authority to perform any act or duty under this chapter which is not discretionary”).
[47] See Exxon Mobil Corp. v. Bonta, et al. (E.D. Tex. 2025) No. 1:25-cv-00011-MJT, Dkt. No. 1 at ¶¶ 45-49.