Conservation Named a Top Priority in Final Public Lands Rule (1)

Conservation is now defined as a “use” of public land in a rule the Interior Department finalized Thursday—a move widely expected to be challenged in court because Western states with oil, gas, and mineral resources fear it will stifle drilling and mining.

The Bureau of Land Management’s final Public Lands Rule requires officials managing federal land to prioritize protecting intact ecosystems and wildlife migration corridors. The rule governs roughly 245 million acres of federal land, mostly in the West, and is expected to inform the bureau’s approach to ecosystem protection, mining, grazing, logging, and oil and gas leasing across the region.

Invasive species, extreme wildfires, prolonged drought, and wildlife habitat fragmentation are ravaging federal land, and the rule represents a new strategy to restore those lands, the BLM said.

It also represents the Biden administration’s advancement of a key part of its climate agenda—the “30-by-30" plan to conserve 30% of US land by 2030. The change clarifies the BLM’s role in implementing that plan as climate change raises temperatures, contributes to catastrophic wildfires, and shifts ecosystems throughout the West.

“Today’s final rule helps restore balance to our public lands as we continue using the best-available science to restore habitats, guide strategic and responsible development, and sustain our public lands for generations to come,” Interior Secretary Deb Haaland said in a statement.

“Conservation” often involves setting aside federal lands for protection, and the rule defines that broadly as maintaining functioning ecosystems by protecting “intact landscapes” and restoring degraded lands and sensitive lands known as areas of critical environmental concern, or ACECs.

The final rule says that the BLM will consider conservation as a use of federal land on par with any other use allowed under the 1976 Federal Land Policy and Management Act.

Conservation will not be prioritized over other uses, however, according to the rule.

In a statement hinting at the fierce opposition the rule faces in oil and gas-producing states, Sen. John Barrasso (R-Wyo.) warned that the rule “subverts” the BLM’s mandate to manage land for multiple uses and threatens Wyoming residents.

“With this rule, President Biden is allowing federal bureaucrats to destroy our way of life,” Barrasso said in a statement, adding that he and Sen. John Hoeven (R-N.D.) will use the Congressional Review Act to repeal the rule.

Rep. Raúl Grijalva (D-Ariz.) said the public prefers federal land to be protected.

“Oil, gas and mining companies have had the upper hand on our public lands for far too long,” Grijalva said in a statement. “I’m grateful to President Biden and Secretary Haaland for pursuing the will of the people, not the incessant demands of polluters.”

Environmental groups said the rule underscores that conservation of federal lands is vital.

“It really amounts to a generation-defining shift in how we manage our shared public lands,” Jamie Williams, president of the Wilderness Society, said in an interview. “It restores a long overdue balance intended by Congress to manage our public lands for multiple values.”

Legal Risk

Both fossil fuel and renewable energy groups have criticized the BLM’s effort to define conservation as a use because they fear it would lead to a halt to all energy development on federal lands in favor of ecosystem and habitat protections.

The Western Energy Alliance, which represents oil and gas companies operating on federal lands, said Thursday the rule is fertile ground for court challenges.

“Defining conservation as a ‘use’ is legally vulnerable and in direct violation of FLPMA,” said Kathleen Sgamma, WEA’s president. “This is a classic example of overreach by the Biden Administration, which has no problem ignoring basic law, and would be detrimental to rural communities all across the West.”

It’s unclear how courts will respond to these challenges, especially with judges focusing on how closely regulations hew to the strict language of the law, said Murray Feldman, partner at Holland & Hart LLP in Boise, Idaho.

Similar language used by the US Forest Service for management of national forests has been upheld by the US Court of Appeals for the Ninth Circuit, he said.

“I think the key is going to be if the rule can be defended as consistent with FLPMA,” Feldman said. “The test here will be if BLM’s rule goes too far or stays within statutory constraints under FLPMA and the range of permissible agency discretion.”

Before the rule was finalized, some Western states were already hinting at legal action.

The rule represents an “astonishing” attempt by the BLM to create new land uses, and would “inflict immediate injuries” to states and small businesses, the attorneys general of Idaho and eight other Republican-led states wrote in comments on the proposed version of the rule last year.

Restoration Leasing System

The rule creates a land restoration and mitigation leasing program on federal lands. Restoration leases would allow private organizations to lease public land to restore degraded lands by conducting restoration work while generating revenue for the federal government. Mitigation leases would be a mechanism for developers to offset their impacts on federal land by protecting federal land elsewhere.

Restoration and mitigation leasing, which was called conservation leasing in the proposed rule, would boost the restoration of wildlife migration corridors and help to establish carbon markets, the BLM officials said when drafting the rule. The program has been requested by states and businesses.

Sgamma said she thinks conservation leasing violates the Mineral Leasing Act and is among “other reasons to litigate.”

Through conservation leasing, environmental groups could lease federal land to protect some wildlife habitats. Companies developing on public land could also help to mitigate their environmental impact by paying for restoration projects on federal lands they lease for conservation.

The rule also makes it easier for federal land managers to designate ACECs, which are areas managed to protect ecosystems and cultural resources, the agency said.

The land bureau manages a swath of federal land across the West and Alaska equivalent to the land area of Texas and New Mexico combined. It’s that region’s largest land manager and governs all of the country’s federally owned onshore oil and gas deposits.

The bureau is required to manage its land for multiple uses and natural resource production under the 1976 law, including oil and gas drilling, mining, grazing, logging, recreation, and other uses.