Interior Department will no longer require industry to offset damage to public lands

Interior Department will no longer require industry to offset damage to public lands
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The Interior Department has abandoned its legal and moral obligation to manage federal public lands for all Americans, both those of us living today and for those who follow in our footsteps. Its abdication of duty has become increasingly clear with each decision favoring industries that drill, mine, cut, and otherwise exploit the land to the detriment of everyone else. This week the Bureau of Land Management (BLM) cast aside any pretense to the contrary, issuing a new policy to shield industries profiting from the exploitation of natural resources on public lands from the responsibility to offset environmental harms they cause.

The BLM manages 258 million acres of federal public lands under the Federal Land Policy and Management Act. The management act creates a sensible, forward looking management framework: It requires the BLM to inventory public lands for all of their potential resources — minerals, wildlife habitat, water supply, scenery — and then to engage in land use planning to manage those resources. The law instructs that in planning and managing public lands, the BLM must abide by multiple use and sustained yield principals, which require the BLM to balance the competing uses and values of public lands for the public’s current and future needs. The law also unequivocally requires the BLM to take any action necessary to prevent unnecessary or undue degradation of the land. 

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The management act embraced a land use planning paradigm for public lands because local planners have successfully juggled the public and private interests adhering to development for decades. Since the early 20th century, compensatory mitigation has been an essential tool in a planner’s toolkit. Want to develop a subdivision? Then take steps to offset the increased crowding of schools that will result. Want to build a parking lot next to a stream? Then take steps to offset the increased risk of flooding that storm runoff from the parking lot will cause. Compensatory mitigation enables the owner to do what they want — build a parking lot — while protecting the public from harm — increased flooding.

 

Like land use planners, the federal government has a long history of relying on compensatory mitigation to balance public and private interests. It lay at the core of the H.W. Bush administration’s effort to protect wetlands: to obtain permission to fill a wetland, an applicant needed to offset the loss. It also lay at the core of the Obama administration’s effort to protect the greater sage grouse and avoid the need to list it under the Endangered Species Act: to obtain permission to degrade habitat on public lands, an applicant needed to offset the loss. 

The BLM has abandoned this sensible and long-standing approach to resolving land use conflicts. It now adheres to the radical and ill-considered view that requiring private companies operating on public lands to make the public whole is an act of “extortion.”

Compensatory mitigation is not extortionate. It’s simply fair play. It ensures that future generations will enjoy the opportunities afforded by public lands. The Federal Land Policy and Management Act requires the BLM to account for future generations, and this policy betrays that obligation. As a result, the public lands, and the American people who own them, will suffer.

Justin Pidot is a professor at the University of Denver Sturm College of Law. He previously served as the Deputy Solicitor for Land Resources at the U.S. Department of Interior during the Obama administration, where his responsibilities included providing legal advice to the Director of the BLM about public land matters.