The Senate Just Voted To Break Public Lands

Every permit written on public lands since 1996 may be rendered invalid

Along party lines, the Senate this morning voted to use the Congressional Review Act to repeal a Resource Management Plan governing permitted operations across 2.75 million acres of federal land in eastern Montana. While, on its surface and as argued by the Senators voting in favor of the measure, this may seem like an action limited to approval of expanded coal mining operations in the Powder River Basin, the unprecedented use of the CRA to revoke an RMP in fact calls into question the legality of the entire system governing federal management of public lands.

The measure will now go to the President’s desk for approval.

Upon hearing the news, I called Justin Meuse, government relations director at The Wilderness Society to ask if this was the sum of all fears. “It could be,” he told me. “It’s certainly a five-alarm fire.”

The impacts of this decision are something that people involved in public lands management have been warning about all year.

“…the BLM estimates more than 166 million acres of plans approved since the passage of the CRA would be affected,” warned the Robert T. Anderson, Solicitor of Department of the Interior, in a January letter to Congress. “…other federal agencies that develop plans similar to RMPs could be implicated by this decision, rendering the potential impacts even greater.”

“Using the CRA in this manner…threatens to paralyze public land management nationwide,” wrote a group of 31 concerned law professors in a September letter to leaders of both parties in Congress.

More than the White House’s decision to hand a prominent campaign donor a $70 million windfall by approving the construction of the Ambler Road in Alaska, more than any effort to use taxpayer funds to give old growth timber from our nation’s largest rainforest to China, more than Mike Lee’s new attempt to install ICE facilities in otherwise pristine areas of Wilderness and National Parks, this is the moment that could spell doom for America’s unique system of public lands.

All of this hinges on whether or not Resource Management Plans are considered “rules,” which must be submitted to Congress for approval. Until now they have not been. But, by invoking the Congressional Review Act, this vote may have just permanently shifted RMPs into that category. And, because all of this is about revoking an RMP that was already in-place, it may invalidate all RMPs that have been implemented since the CRA became law in 1996.

I wrote about this measure, and its potential impacts last month, when it passed the House. Because all of this gets frighteningly technical, allow me to explain as simply as possible what the CRA and RMPs are, so we can all understand what’s going on here.

Signed into law by President Clinton, the Congressional Review Act gives Congress the ability to retroactively consider decisions made by executive agencies. It was an attempt to add an additional layer of checks and balances, by allowing Congress to step in if they feel an agency is overstepping its authority. Crucially, CRA prevents the implementation of “substantially” similar regulations should a decision be struck down by Congress.

Resource Management Plans are developed by the Bureau of Land Management in order to guide its permitting process across the 245 million acres of public land it manages. They take years to put together, and combine input from stakeholders and the public, environmental assessments, and legal analysis in order to balance the various industrial uses of public land with the needs of the public and environment. Those then guide permitting across the lands they’re developed for over a period of 15 or 20 years.

The Forest Service uses a similar process in assembling its Land Management Plans.

If you are interested in reading the legalese about why Congress and the Supreme Court have not considered RMPs and LMPs to be “rules” that must be submitted to Congress for approval before their implementation, then you should read that January letter DOI’s solicitor sent to Congress. The important takeaway there is:

“If all RMPs are subject to the CRA but were never submitted, there is at a minimum significant uncertainty as to whether post-1996 RMPs have ever gone into effect, which also raises questions as to the validity of implementation decisions issued pursuant to these plans that were issued under a plan that was never in effect.”

Once Trump signs the measure into law, every permit written on public lands as part of an RMP or LMP written since 1996 will suddenly be in legal jeopardy. They will not be instantly rendered invalid, but they are no long protected in law, and will become the subject of litigation. Because no “substantially” similar decision making can be performed by the BLM or USFS, each permit will need to be litigated separately.

Permits written by BLM and USFS using RMPs and LMPs include things like extraction operations, grazing, water rights and use, logging, road construction, energy generation, rights of way, wildfire prevention, and various forms of recreation. Every oil well, every solar farm, every wind turbine, every grazing lease, every 4x4 trail, etc can—and almost certainly will—now be challenged in court.

This has incredibly wide reaching implications. The BLM permits operations netting the American economy $252.1 billion and one million jobs, annually. USFS doesn’t report total numbers, but they’re likely similar.

This will also break the regulatory certainty necessary for current and future investments in economic activity of all kinds across our entire public land system. Projects currently under construction will grind to a halt as stakeholders litigate their permits. Given that outcomes there have become uncertain, it may become difficult, if not impossible, to finance or insure the construction of new projects or even current operations. And legal remedies will not be quick. As each and every permit written since 1996 must now wind its way through the courts, those will become backlogged as a result, and as potentially conflicting decisions begin to come down, even more litigation will become necessary.

Then there’s the ramification for future permitting. Once Trump signs this into law, the system for writing permits will be broken. Will each and every one of those need to be submitted to Congress? There is no system in place either at the agencies or Washington for doing that. So that will need to be written, and likely litigated or legislated too.

“This decision doesn’t just undo one plan—it calls into question the legality of thousands of leases, permits, and rights-of-way issued under decades of public land planning across the country,” warns Tracy Stone-Manning, former BLM director, current president of The Wilderness Society. “The chaos from this uncertainty will last for years to come.”

Perhaps most concerning here is that the legislators responsible don’t seem to understand what they’ve done.

“Public lands literacy on the Hill is at an all time low right now,” wrote my former Outside colleague Chris Keyes on his new site, Re:Public, a couple of days ago.

The measure was led by Montana Senator Steve Daines, who seems to genuinely believe that all he’s doing here is striking some Biden-era restrictions on coal mining. The country is now going to rely on legislators like Daines to fix this. Will they even be able to admit their mistake, or embark in the intellectually honest pursuit of fixing it? Or, will they instead simply see privatizing the operations of these agencies as the simpler solution?

I plan to explore those topics and more across the next few days as I analyze the ramifications of this decision. Look for this to be the genesis of headlines around sweeping impacts to public lands not just in the near future, but into years ahead too.

Top photo: BLM

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