Energy Groups Object to Conservation as Use of Public Lands

Defining conservation as a specific “use” of public lands is shaping up to be the primary point of legal opposition to a proposed federal lands rule that would prioritize conservation over fossil fuels extraction and allow public lands management to adapt to a changing climate.

The Interior Department’s Bureau of Land Management received more than 215,300 comments on its proposed public lands rule by the end of Wednesday when the public comment period closed. The draft rule was announced in March and is expected to be finalized by the end of the year.

Both renewable energy and fossil fuels groups say they oppose the proposed rule because they fear it would make renewable and fossil fuels development on federal lands would grind to a halt.

The proposed rule is 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 their comments about the rule this week.

Without changes, the proposal “may have the unintended consequence of hampering wind, solar, energy storage, and associated transmission on public lands by precluding such projects in newly-designated areas,” American Clean Power, a renewable energy industry trade group, wrote in its comments about the rule.

Bureau of Land Management public lands near Gateway, Colo., in June 2023.

Photographer: Bobby Magill/Bloomberg Law

Drilling Could Be Blocked

If finalized in its current form, the rule would consider conservation as a use of public lands under a federal law governing the agency’s land management practices. Fossil fuel drilling and production would be blocked from areas the bureau is conserving under the proposed rule, which would create a new conservation leasing program for federal lands.

The rule, which would affect about 245 million acres of land in the West and Alaska, aims to help the bureau’s land managers respond and adapt to climate change by requiring them to prioritize protecting intact ecosystems and wildlife migration corridors.

Conservation leasing and land protection amount to privatizing federal lands and disregard the bureau’s mandate to manage its land for multiple uses, including for timber and minerals development, the attorneys general of Idaho, Arkansas, North Dakota, Mississippi, South Carolina, Montana, South Dakota, Nebraska, and Utah wrote in their comments.

The BLM has no authority to implement such a rule, which is “arbitrary and capricious,” “violates existing federal statutes and caselaw,” and would “sell out our public lands to the highest bidder,” they wrote.

But attorneys general from eight Democratic-leaning states, led by Oregon, said the rule wouldn’t go far enough to help the bureau realize the Federal Land Policy and Management Act’s vision for public lands protection.

The proposed rule says the bureau “must manage” some landscapes to ensure their ecosystems remain intact, but it would defer management changes until their management plans are revised, roughly every 20 years, the Democratic attorneys general wrote.

Many landscapes are degrading quickly, and the agency shouldn’t be forced to wait nearly two decades for a new plan to be finalized before adapting to rapidly changing conditions, wrote the attorneys general, including those from Oregon, Connecticut, Illinois, Maryland, New Jersey, New Mexico, Rhode Island, and Washington.

Rule to Affect Jobs

A coalition of oil industry groups, including the Western Energy Alliance and the Colorado Oil and Gas Association, echoed the GOP-led states, saying the proposal “unlawfully expands” the intent of FLPMA by “codifying conservation as a multiple use.”

They said the law requires public lands to be managed for minerals, food, and timber, but the rule improperly prioritizes ecological resilience and intact landscapes over drilling, mining, and grazing.

“If finalized, the rule would likely make it more difficult to develop in energy‐rich basins across the West, decrease investment in energy‐related projects, prevent job creation, and reduce revenue for federal and state programs,” the coalition wrote.

The Edison Electric Institute, which represents investor-owned electric companies, said the land bureau needs to provide additional legal justification for determining conservation as a use on par with other uses of federal land.

Electric utilities stand to be restricted from managing their rights of way across federal lands and could disrupt the pace of renewable energy development if the rule is finalized, EEI said.

But a group of University of Utah natural resources law professors said in their comments that the proposed rule is lawful and “thoughtful.” The principles of conservation are threaded throughout FLPMA to the extent that the BLM is required to protect the ecological values of federal land, they said.

Most environmental groups that commented said they support the rule, but Public Employees for Environmental Responsibility said in its comments that the BLM lacks the staff and resources to implement it.

The bureau, which already manages the health of its land poorly, needs to conduct a workforce assessment to ensure it can adequately prioritize its conservation programs under the proposal, PEER said.