Thursday, November 17, 2016

Bad Public Lands Bills in Congress - H.R. 866 and H.R. 1484

In what is hopefully not an indicator of legislative initiatives under the Trump Administration, the House Natural Resources Committee held a hearing on Tuesday on two public lands bills that would open up virtually all Forest Service and BLM lands (except Wilderness Areas) for oil and gas drilling and remove almost all environmental protections currently governing drilling activity.  The first bill, H.R. 866, The Federal Lands Freedom Act, would transfer oil and gas permitting authority from the federal government to the respective states, in every state containing federal public lands managed by the Forest Service and the Bureau of Land Management.  It would also exempt those decisions from the Administrative Procedures Act (APA), the Endangered Species Act, the National Environmental Policy Act and the National Historic Preservation Act, basically removing all protection for endangered species, public participation in leasing and permitting decisions (in states lacking a state version of the APA), environmental planning, judicial review, and cultural and historic resource protections in any states that do not have equivalent versions of these laws.  The revenue sharing arrangement between the states and the federal government currently allows states to receive 49% of oil and gas leasing revenue from federal lands located within their borders, and this would remain the same under H.R. 866, which will add financial incentives for states to rapidly increase exploration and drilling.  

H.R. 866 imposes no environmental restrictions on state permitting programs, which would simply take over oil and gas leasing upon filing a “declaration” of intent to do so with the Secretary of Interior.  Although this bill threatens the environmental and cultural values of public lands everywhere, it sends a particularly ominous message about the future of National Monuments, National Forests, and Wilderness Study Areas.  Areas like the Grand-Staircase Escalante National Monument, the Colorado National Monument, the White River National Forest (targeted specifically in written testimony supporting the bill filed by the Heritage Foundation), and National Forest lands throughout the Appalachian region would be immediately open for drilling if H.R. 866 were enacted.   

The second bill, H.R. 1484, is a land transfer bill aimed at divesting the federal government of 45 million acres of BLM and National Forest lands in the State of Nevada.  Titled the “Honor the Nevada Enabling Act of 1864 Act,” this is the latest in a series of efforts by western states to seek ownership and control of vast amounts of federal public lands under the theory that Congress promised these lands to the states in the various enabling acts admitting each state into the Union.   Aside from several flaws in the legal arguments supporting these bills, which strain to bend the plain text of the enabling acts and Supreme Court precedent in Pollard v. Hagan and Dred Scott v. Sandford into support for a federal divestiture the likes of which this country has not seen in over a hundred years, many are based on economic studies that lack critical information about how states will manage the immense administrative burdens they would assume if their efforts succeed.  H.R. 1484 in particular cites a legislative task force report commissioned by the Nevada legislature and finalized in 2014, which concludes that the State could assume title and generate net revenue by immediately ramping up oil and gas development to the maximum extent possible, in a model similar to the way school trust lands are managed (to maximize revenue).  Yet, this conclusion is belied by the detail in the report.  For instance, even if all 45 million acres of transferred lands in Nevada were mineral-bearing, which the report concedes is impossible, the State could not shoulder the massive financial expenses associated with fire management and suppression, which is one of the largest current expenditures for the BLM and the Forest Service in the public lands states.  The report concedes that it lacks critical information on fire suppression and other key details.  In short, the numbers don’t add up, at least not as they are presented now.

Entirely missing from the discussion of H.R. 1484 is any explanation of how the state will manage conservation and environmental protection on the 45 million acres of acquired lands.  It is clear that mining and grazing will continue unabated.  The report indicates that recreational uses will be preserved, as will all valid existing rights of way across public lands.  Wilderness Areas, National Parks, National Wildlife Refuges, National Monuments, desert tortoise Areas of Critical Environmental Concern, and Herd Management Areas for Wild Horses and Burros would remain federal and are expressly excluded from H.R. 1484, but National Forests and all BLM lands not expressly exempted would be transferred.  This means that all 60 of the current Wilderness Study Areas in Nevada would be abolished, and 2.5 million acres of currently protected WSAs would likely opened for mineral extraction, grazing, or other uses that would eliminate future Wilderness potential.  The shift in ownership “style” between the federal government and the State of Nevada would be simply devastating for wildlife, watersheds, fragile Great Basin ecosystems, and other environmental values.

Two weeks ago, it would have appeared unlikely that these bills would ever leave committee, but given the recent election results and the huge shake-up in Washington that is sure to come, these bills (and similar efforts in the Senate) may be ones to watch in the coming year.  More information about H.R. 866 and H.R. 1484 can be found here.

Hillary Hoffmann, Vermont Law School

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