Key Takeaways
The Department of Interior’s Bureau of Land Management (BLM) finalized a rule to adopt “conservation leases” on federal lands, blocking other uses in violation of the “multiple” use mission under law, impacting fossil energy development, other resource extraction, and grazing.
The BLM chose to ignore the National Environmental Policy Act, which is legally required in enacting the rule, arguing that the rule was too “broad, speculative or conjectural” for environmental analysis.
The rule will result in reduced revenues from federal lands, as states share in federal land revenues under the Federal Land Management Act.
The rule mostly impacts people who live in the rural Western states where most of BLM land is found, reducing economic opportunity and the means to make a living.
The Biden administration finalized a new rule for public land management that will allow for conservation leases on government-owned properties, similar to leases for oil drilling, other types of extraction, grazing, etc. The rule, which comes from the Interior Department’s Bureau of Land Management (BLM), will allow public property to be leased for conservation in the same way that oil companies lease land for drilling. The new rule also restricts oil and other extraction development by promoting the designation of more “areas of critical environmental concern,” which is a special status that is given to land the government stipulates has historic or cultural significance or that is important for wildlife conservation. This is a major change in policy and a departure from the “fair market value” laws applying to all other endeavors on public lands.
The outcome of the rule is that more taxpayer-owned American lands will be restricted from energy and mineral development and other “multiple” use development, and states and counties denied their 50 percent revenue share from activities producing money for the government. The Biden administration has already been busy removing lands from energy development, protected under Federal designations such as national monuments, wilderness areas, wilderness study areas, areas of critical environmental concern, etc. Tens of millions of acres of BLM lands across the western United States are protected under these designations. Also, tens of millions of acres of non-BLM public lands are protected such as national parks, U.S. Forest Service wilderness areas, and U.S. Forest Service inventoried roadless areas. Further, there is a very high bar set before any kind of surface activities can be authorized on the remaining BLM lands that are open to “multiple” use, and many barriers exist to development in existing BLM resource management plans.
There has been strong opposition from private industry and Republican governors to the proposed rule released on April 3, 2023, as energy development brings jobs, revenue and economic prosperity to many states in the nation. Now that it has been finalized, GOP members of Congress are planning to seek legislation to invalidate the rule, in which BLM avoided environmental analysis required under the National Environmental Policy Act (NEPA).
Background
In 1976, Congress declared in the Federal Land Policy and Management Act (FLPMA) that the BLM must manage its lands “on the basis of multiple use and sustained yield.” The new Biden administration rule, however, defines “conservation” as a “use” within FLPMA’s multiple use framework, which violates Federal case law in Public Land Council v. Babbitt, where the 10th Circuit Court of Appeals found that the BLM lacks the statutory authority to prioritize conservation use to the exclusion of other uses. The Rule puts BLM lands into a protection-oriented management regime more akin to the National Park Service than an agency statutorily obligated to promote multiple use and sustained yield.
The Bureau of Land Management oversees more than 380,000 square miles of U.S. land, primarily in the West. For more than a century, the bureau has sold grazing permits and oil and gas leases. In addition to its surface land holdings, the bureau regulates publicly-owned underground mineral reserves — such as coal for power plants and lithium needed for EV batteries — across more than 1 million square miles.
Rule Avoids NEPA
The BLM declared that the rule’s “environmental effects are too broad, speculative, or conjectural to lend themselves to meaningful analysis” and excluded the rule from the National Environmental Policy Act (NEPA) analysis. Thus, there was no environmental assessment (EA) or environmental impact statement (EIS) undertaken as required by NEPA. Federal case law requires the BLM to “adequately explain its decision” when an agency decides to proceed with an action in the absence of an EA or EIS, which was not done as a “categorical exclusion” does not adequately explain the decision.
Other major BLM rulemaking efforts are being analyzed under NEPA. For example, the BLM’s ongoing rulemaking for its revised grazing regulations includes a full environmental impact statement– with states and counties able to participate in the cooperating agency process and provide input and cooperation, which was ignored for the new rule.
Recent Biden Administration Land Removals
Recently, Interior Secretary Deb Haaland withdrew more than 4,000 acres of federal land in New Mexico from new mining and oil and gas drilling. The agency removed a large amount of land within the Placitas area in Sandoval County for a period of 50 years. According to Haaland, “Indigenous communities have called the Placitas area home since time immemorial, with evidence of their presence found from nearly every settlement period of the past 10,000 years. The site contains significant cultural ties to neighboring Pueblos and provides outdoor recreation opportunities to the local community.” According to the Interior Department, the land contains known archaeological resources that date back to the Paleoindian Period and contains areas popular for hiking, camping, sightseeing and hunting.
The Biden administration also recently restricted new oil and gas leasing on 13 million acres of the National Petroleum Reserve in Alaska to help protect wildlife such as caribou and polar bears. The rules would place restrictions on future leasing and industrial development in areas designated as special for wildlife, subsistence or other values and call for the agency to evaluate regularly whether to designate new special areas or bolster protections in those areas. That area was set aside around a century ago as an emergency oil source for the U.S. Navy, but since the 1970s has been overseen by the Interior Department. The Indigenous North Slope Inupiat criticized the rule, saying it will “hurt the very residents the federal government purports to help by rolling back years of progress, impoverishing our communities, and imperiling our Iñupiaq culture.” Over 95 percent of the North Slope’s tax revenue is derived from taxation on resource development infrastructure.
Conclusion
The Biden administration finalized a rule that would allow for conservation leases to protect federal lands from oil drilling and other extraction activities, despite the numerous other land designations that the government can use to exclude land from these activities. Much BLM land in the western United States is already under strict Federal protection. The new rule on conservation leases conflicts with BLM’s mission to provide federal lands on the basis of “multiple use and sustained yield” and with the Appeals court decision that found that the BLM lacks the statutory authority to prioritize conservation use to the exclusion of other uses. The Interior Department avoided the NEPA requirement for an environmental analysis and did not provide a reasonable explanation to avoid the NEPA requirement. Allowing for more land to be removed from energy and mineral development hurts jobs and revenues that would provide economic prosperity to states and the nation and which are needed to further President Biden’s energy transition. Biden’s climate agenda needs critical minerals and China currently dominates their extraction and processing.
