A new rule proposed by the Bureau of Land Management (BLM) designed to facilitate easier conservation of public lands continues to face pushback over its possible ramifications. The draft rule was rolled out on April 3, 2023 and proposed significant changes to the way BLM manages land. The proposed rule originally had a 75-day comment period to allow for public input ending on June 20, 2023. However, after facing significant opposition to the rule, BLM extended the comment period until July 5, 2023.
Background
Decisions about public land use are guided by the Federal Land Policy and Management Act (FLPMA) of 1976. The FLPMA created a framework by which BLM was to manage public land. This framework outlined the “agency’s multiple-use and sustained yield mandate to serve present and future generations.” These multiple uses as defined in the FLPMA include: recreation, range, timber, minerals, watershed, wildlife and fish, natural scenic, scientific, and historical values. Under these directives, BLM is responsible for creating management plans that support the multiple-use and sustained yield mandate.
The new Public Lands Rule proposes one significant change to the current framework of the FLPMA. It seeks to define “conservation” as a “use” within the FLPMA “multiple use” framework. The rule has been met with opposition, including six state governors who wrote in a joint letter to the Department of the Interior (DOI) Secretary Deb Haaland outlining their concerns with the rule.
The Rule Circumvents the Law
The Public Lands Rule takes an expansive view of BLM authority and only enlarges the already massive government footprint. As the Governors of Utah, Idaho, Montana, Nevada, South Dakota, and Wyoming highlight, the rule directly contradicts judicial precedent. In Public Land Council v. Babbitt, the U.S. Court of Appeals for the 10th Circuit found that BLM “lacks the statutory authority to prioritize conservation use to the exclusion of other uses.” Not only does BLM lack the statutory authority to propose such a rule, it also seemingly ignores the tens of millions of acres already under BLM protections, such as national monuments, wilderness areas, wilderness study areas, and areas of critical environmental concern. The National Historic Preservation Act also already allows for the preservation of critical areas, making any further rules by BLM unnecessary.
The Rule Lacks Transparency
Although BLM’s goal of healthy habitats is certainly one everyone can agree upon, there are significant concerns with the rule’s lack of transparency. Undoubtedly the rule would have a significant impact on the environment, and whether or not that impact is good or bad, under the National Environmental Policy Act BLM is required to provide an environmental impact statement. However, BLM has neglected to do so saying the rule’s “environmental effects are too broad, speculative, or conjectural to lend themselves to meaningful analysis,” excluding the rule from any environmental analysis or environmental impact statement. If BLM chooses to exclude a rule from environmental analysis, according to federal case law, it must explain its decision to do so. However, BLM has failed to do so, further perpetuating the lack of transparency surrounding the rule.
The Rule Hampers the Development of Mineral and Oil Resources
The efforts taken by BLM to push conservation also come at a time when BLM is subverting federal leasing for oil and natural gas. Under the Mineral Leasing Act BLM is required to hold onshore oil and natural gas lease sales on a quarterly basis. The law states that sales “shall be held for each state where eligible lands are available at least quarterly.” However, according to the American Petroleum Institute (API), BLM has failed to hold sales for 8 out of the last 10 quarters.
This dates back to January of 2021 when President Biden issued Executive Order 14008, directing BLM to pause onshore oil and natural gas lease sales. Several states challenged the order, and in June of 2021, a federal judge in Louisiana blocked the President’s order, enjoining and restraining the administration from implementing the pause of new oil and natural gas leases on public lands.
With the new implementation of the Public Lands Rule, BLM is turning its attention towards conservation while neglecting its legal obligation to promote onshore oil and natural gas lease sales. Many have argued that the neglect of onshore oil and natural gas hurts national security by making the United States more dependent on foreign sources instead of American energy.
Additionally, the administration’s proposal would potentially increase prices, hurting every American. According to API, production of oil and natural gas on federal lands accounted for about 10 percent of all U.S. oil production in 2021 and 9 percent of total natural gas production, which demonstrates just how vital this program is to American energy production.
Although a significant portion of U.S. oil production is done on federal land, only about 4 percent of federal lands are currently leased for natural gas and oil development. According to a report from the Wall Street Journal, the Interior Department leased only 126,228 acres through President Biden’s first 19 months in office. No President since Nixon has leased fewer than 4.4 million acres. Although the President is committed to fighting climate change and conserving public lands, subverting American energy and hurting every American at the pump is not the way to do it.
As the governors highlight in their letter, the proposed rule “seems to be a solution in search of a problem when so much BLM land in the western United States is already under strict federal protection.” BLM and the Biden administration must put everyday, hard-working Americans at the center of its agenda. They must find a way to balance the creation of healthy habitats and ecosystems, while not excluding other “uses” under the “multiple use” mandate, harming both farmers and ranchers as well as American energy interests. Most of all, BLM must ensure it does not overextend its reach, making sweeping changes to land rules from D.C. while not considering its effects on American energy and farming interests.