Reminder: Final BLM Public Lands Rule Isn't Conservationist
"Conservation" leases give dirty clean energy companies a pass.
A year ago this month, I published my first Wall Street Journal opinion-editorial on the Bureau of Land Management (BLM) Public Lands Rule. I coauthored this piece alongside my friend and IWF Center for Energy and Conservation Senior Fellow, .
Officially, it was billed as the Conservation Landscape and Health Rule. Now it’s referred to as the former. Finalized in April and enacted last month, this BLM rule claims to put conservation on equal footing with other multiple uses on public lands out West under the Federal Land Policy and Management Act (FLPMA) of 1976.
But the problem with this argument is conservation is already recognized under FLPMA as a practice. As Sarah and I argued in WSJ:
Under the Federal Land Policy and Management Act of 1976, Congress authorized the BLM to manage federal land under a multiple-use and sustained-yield system. This means the diverse uses of land—including mineral production, wildlife protection, oil and gas production, and grazing—would be considered together by the BLM during any federal land decisions.
The recently proposed Conservation and Landscape Health rule would establish “conservation” as a distinct use of land. But all uses of land entail conservation. The aim of the rule is to reduce sustained-yield land uses like grazing, mining and timber in favor of recreation spaces, watershed preservation, wildlife and fish protection, and “natural scenic, scientific, and historical values.”
What about preserving access? It’s not guaranteed under so-called restoration and mitigation leases. And it would give undue influence to radical environmental groups to decide which stakeholders are acceptable or not. We continued:
That program may threaten the accessibility of public land. While the rule claims that such land would “in general” remain open, it makes no promises and admits that “some public lands could be temporarily closed to public access,” depending on the purpose of the conservation lease. This may give undue influence to powerful environmental organizations, which would be able to prevent access to large areas of land for 10 years or longer, depending on the terms of the lease. It’s hard to see how closing off public lands from development and recreation would meet the BLM’s mission to manage lands under a multiple-use and sustained-yield policy.
The BLM’s program for conservation leases has other problems. The rule doesn’t specify which existing uses, including hunting and fishing, would be permitted on leased land. Moreover, the program would let the BLM decide on a case-by-case basis to let solar and wind companies offset the negative impact of their development on high-value habitats by committing to restore or enhance adjacent low-quality habitats to protect affected wildlife.
What about these aforementioned mitigation and restoration leases? How does it work? Will it excuse bad behavior by clean energy companies? You betcha.
The BLM’s Restoration and Mitigation Lease FAQ Sheet, mind you, would give carte blanche to solar companies to destroy high-value habitat *if* they promise to offset any damage with promises to restore lesser habitat.
A solar energy project is proposed on public lands in an area that has wilderness and recreation values.
The environmental analysis for a proposed solar project identifies lands with wilderness characteristics in the project area, along with associated recreation values for hiking, camping, hunting, mountain biking and other activities. These impacts to wilderness and recreation resources cannot be avoided or mitigated through project design, so the BLM determines that compensatory mitigation is appropriate. The solar project developer or another entity could apply for a mitigation lease to restore or protect wilderness and recreation values in a different location for the duration of the project impacts, thereby offsetting the unavoidable impacts of the development. Existing uses on the public lands affected by the mitigation lease would continue, such as grazing and public access, and new uses could be authorized if they are consistent with the purpose of the mitigation lease.
Imagine if an oil and gas company got away with this. Heads would roll. But federally-subsidized solar and wind companies? They’re golden calves. Of course they’re excused, because they’re aligned with the Biden administration’s net-zero goals. Conservation be damned!
We’re not alone in our criticism. Various conservation stakeholders are now suing BLM over this flawed rule. From the plaintiffs:
Leaders of national organizations representing those who utilize our nation’s public lands have joined together to file a lawsuit against the Bureau of Land Management’s (BLM) new public lands rule. Under the Federal Land Policy and Management Act of 1976 (FLPMA), the BLM is responsible for balancing the multiple use of public lands for productive purposes like grazing, mining, energy development, and timber. Unfortunately, the BLM’s “Conservation and Landscape Health Rule” upends the shared multiple use of public lands and endangers food and energy security.
They join the states of Wyoming and Utah in challenging the flawed rule.
“The National Environmental Policy Act (“NEPA”) requires agencies contemplating a major action to carefully consider possible environmental consequences before moving forward with that action. The Bureau of Land Management’s (“BLM”) new “Public Lands Rule” qualifies as such an action and this case arises from the Bureau of Land Management’s failure to uphold that NEPA obligation,” their lawsuit notes, “The Public Lands Rule overhauls BLM’s substantive priorities under the Federal Land and Policy Management Act (“FLPMA”) and represents a sea change in how the agency will carry out its mission moving forward, providing proposed guidelines for the management of all 245 million acres of federal public land—including millions of acres in the Plaintiff States. More specifically, it revises existing regulations and creates new land-management tools not contemplated or authorized under FLPMA.”
Why the challenge? They argue, rightfully so, it is illegal to rehash regulations - like the 2017 BLM 2.0 Planning Rule - that were nullified by presidents via the Congressional Review Act (CRA). BLM 2.0 was invalidated by former President Donald J. Trump in 2017. Per the Congressional Research Service (CRS):
Furthermore, if a joint resolution of disapproval is enacted, the CRA provides that a rule may not be issued in “substantially the same form” as the disapproved rule unless it is specifically authorized by a subsequent law. The CRA does not define what would constitute a rule that is “substantially the same” as a nullified rule. Additionally, the statute prohibits judicial review of any “determination, finding, action, or omission under” the CRA.
Don’t be fooled: The Biden administration is putting climate considerations above actual true conservation efforts. Their gestures on conservation issues are hardly conservationist in nature. Instead, they’re premised by radical preservation and even rewilding.
What do you think? Tell me below!
Does the overturning of the Chevron Doctrine have any effect on this? I thought the administrative state was not allowed to make rules without the legislative process?
Nicely done, ma'am. Thank you. "dirty clean energy companies" have been getting a pass for years! For every new standard, there is someone, somewhere out there who is willing to pay to get around it.