A proposed rule to shift regulatory authority for mineral development on national forests and grasslands from the US Forest Service (USFS) to the Bureau of Land Management (BLM) has raised criticism, but legal experts say the change is less a radical policy shift and more a realignment of priorities between different federal agencies.
“What I see these rules as doing is the Forest Service is asking itself, should we be requiring lessees to go through unnecessary procedures—procedures that are not likely to generate significant new information about the environmental sensitivities of the project or the reclamation concerns? And the answer was no.” Donald Kochan, deputy executive director of the Law & Economics Center at the Anton Scalia Law School at George Mason University, told Western Wire.
Kochan, whose work has specialized in administrative law and natural resources and environmental law, described the new system as one where BLM would “run point” on proposed mineral leasing in national forests and grasslands, while the USFS retained the final authority to approve or deny a development plan.
In a statement announcing the rule change, USFS Chief Vicki Christiansen said the update would help the agency “be more efficient, while improving customer service.”
The rule would promote responsible development of our nation’s vast energy resources while preserving the surface resources of national forests and grasslands,” she said.
Because of a quirk of legislative history, USFS is part of the Department of Agriculture, while other public lands, including national parks, are managed by the Department of the Interior and BLM.
BLM already determines which minerals to offer for lease on federal lands, including those under USFS lands, as part of its broader land management plans. USFS also creates its own forest management plans on a site-specific basis. Previously, companies looking to lease USFS lands for mineral development were required to complete an environmental review process with both BLM and USFS. With the new rule, USFS will follow BLM’s environmental review decision, but will retain the authority to veto the decision.
“The question for these regulations is, in light of the substantial review that has already happened in a co-equal cabinet department, how much should the Forest Service waste its own resources duplicating environmental reviews, and waste the resources of the lessees making them conduct duplicative reviews when the return on those expenditures is zero or nearly zero?” he said.
In this respect, the change is a continuation of Trump administration policies, including National Environmental Policy Act reform, to streamline the federal permitting process. Companies looking to develop energy or mineral resources on USFS land will still need to meet all applicable environmental regulations, but removing one layer of regulatory authority also eliminates another avenue for a court challenge.
To environmental groups and Democrats on Capitol Hill, the move is another example of the administration caving to industry.
In a statement, Rep. Raúl M. Grijalva (D-Ariz.), chair of the House Natural Resources Committee, said that the rule was “part of [the administration’s] larger failed agenda” of “giving Big Oil whatever it wants.”
“The administration really outdid itself with a proposal that has the Forest Service walking away from its responsibilities for managing our national forests and grassland while closing the door on public oversight,” said Nada Culver, vice president of public lands and senior counsel for the National Audubon Society.
It will be difficult for these groups to stop the rule change, however. The proposed rule is open for public comment until November 2, leaving sufficient time to finalize the rule and have it take affect before Inauguration Day in 2021. At that point overturning the decision would require a new rule of its own.
Keeping the change might also help USFS with its primary mission. Less money spent on paperwork would mean more resources would be available for other priorities in the agency.
“There are tradeoffs with doing duplications and one of those tradeoffs is the inability to put those forest service resources to work protecting the forest from other environmental effects,” said Kochan, remarking that wildfires are providing a timely example of the importance of forest management.
In announcing the rule, USFS said that the rule change would boost productivity on national forests and grasslands, where energy and mineral development leases generated nearly $298 million in revenue through royalties and other payments in fiscal year 2019.
