Congress Risks Chaos on Federal Lands After Tossing Biden Plans

Chaos is likely to ensue on federal lands after lawmakers for the first time in US history used the Congressional Review Act this fall to toss out land use plans restricting fossil fuel development, natural resources attorneys say.

After the rollback of Biden-era resource management plans, nearly every federal decision made on 245 million acres of public land over the last 30 years regarding oil and gas, environmental protection, and other purposes is in jeopardy, said John Ruple, a law professor at the University of Utah.

“This is a question that keeps me up at night,” said Ruple, one of 25 natural resources law professors who signed a September letter warning Congress of the implications of using the CRA to invalidate land use plans.

The legal theory is that almost every federal land management authorization issued since the CRA became law in 1996 is “without legal force or effect because the underlying plans were invalid,” he said.

Congress over the last two months has passed resolutions under the CRA disapproving Bureau of Land Management plans developed by the Biden administration in Alaska, Wyoming, North Dakota, and Montana. All still awaited President Donald Trump’s signature as of Tuesday.

The BLM didn’t respond to questions about how Congress’ use of the CRA will change its land planning process.

‘Zoning’ for Public Lands

A resource management plan is like zoning for public lands, “rules of the road” determining which land within a certain area the BLM manages is to be used for specific purposes, said Susan Jane Brown, an attorney for the Oregon-based nonprofit environmental law firm Silvix Resources.

The US Forest Service and the National Park Service create similar plans for the land they oversee—often covering hundreds of thousands of acres and usually staying in effect for decades. All of the plans determine what’s allowed in a given area, including which land is set aside for oil and gas leasing, grazing, off-road vehicle use, renewable energy development, logging, and other uses.

Republicans have assailed the Biden administration’s land plans, which focused heavily on restricting drilling and other development partly by protecting environmentally sensitive lands known as “areas of critical environmental concern.”

Biden’s “abuse” of that designation should be reversed, Sen. Mike Lee (R-Utah) said during a Nov. 19 Senate Energy and Natural Resources Committee hearing.

The Government Accountability Office in June declared the plans are rules under the Administrative Procedure Act. This gives lawmakers the ability to disapprove of them under the CRA, which requires rules to be submitted to Congress before taking effect.

But no land use plan from any agency has ever been submitted to Congress, Ruple said. And if all land plans are rules under the law, it invalidates all plans approved since 1996 and all decisions based on them, including oil and gas and logging permits, and much more, he said.

It’s a “recipe for chaos” on federal lands, exacerbated by the CRA’s prohibition on new rules being “substantially similar” to the rule rejected by Congress, said Mark Squillace, a natural resources law professor at the University of Colorado Law School, who signed the September letter.

Avoiding a “substantially similar” land use plan would force agencies to question hundreds of decisions they’ve already made, Squillance said.

It’s unclear how the BLM will go about changing plans in a way that is different enough from rejected ones to fully comply with the law, in part because “substantially similar” is subjective, said William Myers III, partner at Holland & Hart LLP in Boise.

Creating Uncertainty

Environmental groups are already suggesting legal action could invalidate all land use plans that allowed oil and gas drilling on federal lands.

“The oil and gas industry should be alarmed that Congress has effectively put the legal validity” of more than 5,000 oil and gas leases on nearly 4 million acres into question, said Erik Schlenker-Goodrich, executive director of the Western Environmental Law Center in New Mexico.

The CRA injects so much uncertainty into land use planning that it could destabilize the entire process, said Mary Jo Rugwell, president of the Public Lands Foundation and a retired BLM Wyoming state director.

Federal permitting could grind to a halt, land plans could be tossed out every time power shifts in Congress, and existing land plans could be heavily litigated, Rugwell said.

“This could raise a myriad of legal questions that would be extremely difficult to resolve,” she said.

But Kathleen Sgamma, an oil and gas industry consultant, said Congress’ move hasn’t invalidated all BLM land use plans and environmental groups’ claims otherwise are “a real stretch.”

If groups sue, the BLM could validate old plans by sending them to Congress, said Sgamma, who withdrew her nomination this year as Trump’s pick to be BLM director.

Myers, who served as Interior Department solicitor during the George W. Bush administration, also said that using the 1996 law doesn’t invalidate later land plans.

“If that were the case, could one expand that concern and just say that all federal agency actions not submitted to Congress that are within the broad scope of the CRA’s definition of a rule are now invalidated?” he said. “That would wipe out all manner of federal rules over the last 30 years.”

Judicial Review

The use of the CRA raises another legal question, which is how judicial review applies, said Myers.

While the CRA says it’s not subject to judicial review, it’s unclear whether that means it’s actions taken by Congress or by an agency that aren’t subject to review, he said.

Sgamma, however, said that provision prevents courts from tossing out land plans if the BLM didn’t send them to Congress.

Federal agencies won’t have much incentive to create thoughtful, science-based management plans if they think their work will be easily invalidated, Schlenker-Goodrich said.

“The CRA opens the door to destructive, chaotic forces,” he said.