The Democratic midterm sweep has moved the U.S. critical minerals trade out of the White House, where deals were struck quickly, and into Congress. The next fight will be on the legislative battleground.
According to The Oregon Group, tariffs, stockpiles, and government equity stakes are mostly executive actions. Congress can't overturn them unless it beats a presidential veto. What the new Congress does get is subpoena power and leverage over the budget.
That situation leaves investors with a question: will lawmakers clear the permitting backlog, or will gridlock stall the supply chain?
The 29-Year Bottleneck
U.S. mines take an average of 29 years to go from discovery to production. So far, the industry has relied on executive fast-tracking. Fifty mining projects now have FAST-41 coverage, and 49 of them were added under President Donald Trump.
But executive action isn't permanent. A future president can revoke a fast-tracked permit, and challengers to projects outside FAST-41 generally have up to six years to sue.
"There's no question we need congressional action on permitting to affect the kind of sweeping change that's required for this moment," said Rich Nolan, CEO of the National Mining Association.
The BAAJA Test
On Monday, November 9, the Senate holds a 60-vote procedural test on the Bipartisan American Affordability and Jobs Act, or BAAJA.
The bill would amend the National Environmental Policy Act to add consequences for agencies that miss existing review deadlines and give challengers 150 days to sue.
It would also let miners stake as many five-acre mill sites as they need for waste rock and tailings. That legislation closes the gap left by a 2022 court ruling against the Rosemont copper mine.
Democrats are divided.
"It should not take decades to build the infrastructure our country needs," co-author Senator Martin Heinrich (D-N.M.) noted. Representative Jared Huffman, the top Democrat on the House Natural Resources Committee, argued before the election that "folding our hand now or in the lame duck makes no sense."
Subpoena Season
According to bnamericas, Washington has taken $8.6 billion in stakes in critical minerals companies since January 2025, including MP Materials Corp. (MP), Lithium Americas Corp. (LAC) and Trilogy Metals Inc. (TMQ).
Consultancy Project Blue counts more than 160 deals worth roughly $40 billion. Once the Senate result was clear, Senator Ron Wyden (D-OR) posted one word on X: "Subpoenas."
Signed deals will likely stand. "I don't think the intent is necessarily to break existing binding legal contracts," TD Cowen analyst John Miller told Bloomberg. Deals with conditional financing are less safe.
"My view is that there will be a pause on these plans," said Ed Meir, a consultant at Marex. Project Blue warned that companies "would incur substantial legal fees in defending themselves."
BNamericas reported that Democrats have pledged to review at least 11 mostly non-binding agreements with nine Latin American countries. The Exim Bank's charter also expires Dec. 31. If it lapses, disbursements in Chile, Peru and Argentina could stall, along with Project Vault's loan of up to $12 billion for a strategic minerals reserve.
"Washington's hemispheric priorities will survive the midterms, but its methods will face greater resistance on the Hill," said Mariano Machado, Americas principal analyst at Verisk Maplecroft.
