Close the loophole letting seabed miners skip the ISA
Should a US permit to mine the deep seabed have to wait for the international rulebook meant to govern it? The question is live now: The Metals Company's US subsidiary has an application before NOAA to work roughly 65,000 square kilometers of the Pacific, while the International Seabed Authority's mining code — in negotiation since 2014 — still has no agreed text. The answer is yes, and Congress can make it so by conditioning any domestic permit on the ISA's finalized environmental standards, so that a unilateral route cannot quietly set the global precedent.
A 1980 law became a shortcut
On April 24, 2025, President Trump signed an executive order titled "Unleashing America's Offshore Critical Minerals and Resources," directing the Commerce Department to pursue seabed minerals both inside US waters and beyond national jurisdiction. It ordered NOAA to stand up a commercial-recovery permitting process fast: the new procedures were to be established within sixty days, by June 23, 2025.
The legal hook is old. NOAA's authority comes from the Deep Seabed Hard Mineral Resources Act of 1980, a statute Congress passed as a stopgap before the Law of the Sea treaty took effect. That treaty created the ISA to govern seabed minerals in international waters as the "common heritage of mankind." But the United States, over decades of Senate objections, never ratified UNCLOS or its 1994 implementing agreement — so it is not a voting member of the ISA, and it fell back on its own 1980 law to license the same ocean floor the ISA claims to regulate.
One seabed, two regimes, one company standing in both
The applicant is not a bystander to the international system; it is inside it. The Metals Company's Nauru-sponsored subsidiary, Nauru Ocean Resources Inc., already holds an ISA exploration contract for blocks in the Clarion-Clipperton Zone, the polymetallic-nodule field in the central Pacific. Rather than wait for the ISA to finish its rules and issue an exploitation licence, TMC pivoted in 2025 to NOAA, seeking exploration and recovery permits for many of the same areas under DSHMRA.
The domestic route is also getting bigger. TMC USA's first commercial-recovery permit application in April 2025 covered about 25,000 square kilometers; the consolidated application it filed months later raised the exploration and commercial-recovery area to roughly 65,000 square kilometers in the same zone. NOAA has moved it through review and found it in substantial compliance with the Act, and a decision is pending. That is what "loophole" means here in practice: a firm that could not get an ISA licence yet can seek a US one for the identical blocks.
The rulebook it skips is still unfinished — and getting more contested
The ISA's mining code is not close. The Authority has been drafting it since 2014 and has repeatedly missed its own deadlines; at the July 2026 council session in Kingston, members again failed to finalize the rules, and one veteran observer flatly predicted "there's not going to be any adoption this year." The council pushed the work to its next scheduled session in March 2027.
Meanwhile the political center of the ISA is moving toward caution, not speed: forty-five countries have called for a moratorium or precautionary pause on deep-sea mining until the science catches up. Yet at that same July meeting the ISA extended NORI's exploration contract for another five years — even as TMC's US arm pursued the same seabed outside the ISA's framework — a move Greenpeace called a "dangerous precedent for both the deep sea and the rule of law." The international body is simultaneously being outflanked by a domestic permit and undercutting its own leverage over the firm doing the outflanking.
Condition the permit on the code
The fix is narrow and legislative. DSHMRA already lets the Secretary of Commerce attach terms to a permit; Congress should require one. Add to the Act, or to the appropriations rider funding NOAA's permitting office, a clause to this effect:
No commercial-recovery permit issued under 30 U.S.C. 1401 et seq. for an area beyond national jurisdiction shall authorize extraction before (a) the International Seabed Authority has adopted final exploitation regulations, including environmental standards and an independent regional environmental baseline for the licensed area, and (b) the Administrator certifies in writing that the permit's environmental thresholds, monitoring, and closure requirements meet or exceed those adopted standards. Until both conditions are met, any such permit is limited to exploration and baseline data collection.
This keeps the US route open, honors the 1980 statute, and lets American firms lead on the science — while removing the one thing that makes the loophole dangerous: the ability to start mining, at commercial scale, ahead of and beneath any agreed international floor. It converts "we went first" from a precedent that races the world to the bottom into one that ratchets the bottom up.
The general lesson is older than the seabed. When a slow multilateral institution leaves a rule unfinished, the cheapest move for a motivated actor is to find a faster domestic door and walk through it first — and the fait accompli, not the treaty, becomes the standard everyone else must answer. The place to stop that is the permit condition, before the first nodule is lifted, not the lawsuit after.
Limitations
I did not audit DSHMRA's exact permit-condition authority against its regulations; the model clause is drafting guidance, not vetted statutory text. Whether the ISA's standards, once final, will be strong enough to be worth conditioning on is itself contested. Figures on area and country counts are current as of the July–August 2026 filings and meetings cited and will move. I take no position on whether seabed mining should proceed at all — only on the sequencing between the two regimes.