IndyExplains: How a new BLM rule could make conservation a higher priority in the West

9 April 2023

The U.S. Department of the Interior proposed a new rule last week that would give conservation priorities equal weight in public land use decision-making — a change experts say constitutes one of the most significant land management policy moves in decades.

The proposed Public Lands Rule represents the culmination of decades of efforts to push the U.S. Bureau of Land Management (BLM) toward prioritizing conservation, as the organization’s ethos has traditionally focused on facilitating economic development on the vast amount of land it manages in the West. 

The proposed rule would significantly affect Nevada, a state where the federal government administers more than 85 percent of the land. The BLM alone manages about 67 percent — or 48 million acres — of Nevada. 

Under the proposed rule, the BLM would elevate conservation to be on equal footing with other permitted uses for federal land — such as mining, grazing, or oil and gas permitting — that have historically taken precedence. It defines conservation as pertaining to both the protection and restoration of public lands. 

The rule also helps the agency advance conservation through leases to third parties, such as environmental groups or energy companies that seek to use a parcel of public land for protection or habitat conservation. 

“As pressure on our public lands continues to grow, the proposed Public Lands Rule provides a path for the BLM to better focus on the health of the landscape, ensuring that our decisions leave our public lands as good or better off than we found them,” BLM Director Tracy Stone-Manning said in a statement. 

The proposed rule — which will go through a notice and comment period before a final rule is proposed and adopted — was welcomed by conservation groups nationally and in Nevada, while drawing criticism from ranching industry trade groups, oil producers, and the Nevada Cattlemen’s Association, which raised concerns that the new rule could be abused to the detriment of livestock grazing. 

Though most of Nevada’s congressional delegation did not comment on the proposed BLM rule, Rep. Susie Lee (D-NV), a strong supporter of renewable energy, was hesitant about how the rule change could affect permitting energy projects on public lands.

“Washington needs to be able to walk and chew gum at the same time when it comes to advancing both conservation and our transition to a clean energy economy,” she said in a statement to The Nevada Independent. “Conservation must absolutely remain a priority, but I’m concerned that this proposed BLM rule could slow appropriate clean energy development at precisely the time when we need to be speeding it up.”

Advocates say the proposed rule will boost the Biden administration’s broader conservation agenda, including restoring and conserving 30 percent of federal lands by 2030 (often referred to as 30X30).

In a state like Nevada where extractive interests have taken priority, BLM’s new Public Land Rule promises to flip the switch, providing equitable access and protecting public lands for generations to come,” Jose Witt, the Mojave Desert landscape director at The Wilderness Society, a conservation group, said in a statement after the proposed rule was released. 

Below, The Nevada Independent explains the history of the BLM’s land use management policies, how the proposed rule would work and why conservation advocates say it will make a difference.

When the BLM was formed in 1946, its guiding mission was “managing private access for economic development of public lands,” said Bret Birdsong, a law professor at UNLV who studies public lands and worked for the Interior Department in the Obama administration. 

Its domain over public lands was codified in the 1976 Federal Land Policy and Management Act (FLPMA), which clarified that the BLM would oversee multiple uses of the “leftover” federal lands, Birdsong said, beyond designated national parks and forests. And managing for multiple uses has often skewed toward economic development.

The vast majority of land in Nevada is part of the public estate belonging to the American people. BLM estimates that it manages 67 percent of land in the state, from grazing lands and mines to the Black Rock desert in Northern Nevada, where the Burning Man Festival is held.

In post-FLPMA Democratic administrations, Interior appointees in the Clinton and Obama administration led efforts to elevate conservation among the department’s balance of multiple land uses, including protecting biodiversity. 

Under President Bill Clinton, then-Interior Secretary Bruce Babbitt championed the creation of National Conservation Lands, granting special status for the BLM to promote conservation as the dominant use in those areas. During the Obama administration, the Interior Department  used existing policies to pair conservation efforts with new extractive projects, and crafted resource management plans that promoted conservation. 

But the Biden administration’s proposed rule is the first attempt to use the rulemaking process to put conservation on what the department refers to as “equal footing” with other uses of land. 

“[The BLM is] going to really think about achieving conservation goals from the get-go, and not sprinkling them on like salt and pepper on a dish that’s fully baked of oil and gas, and solar development, and rights of way for roads and highways,” Birdsong said.

In Nevada, Birdsong said the rule could bolster existing state programs, such as the Nevada Conservation Credit System, which allows companies to earn and trade credits for engaging in rangeland practices beneficial to protecting vulnerable sage-grouse populations. 

The BLM also leases lots of land across Nevada for energy development and extraction. That includes leases for hardrock mining, oil and gas developments in Battle Mountain, solar energy projects in Clark County and geothermal power projects in Washoe County. 

Rather than decreasing the amount of future permitting, experts said they expect the new BLM rule to force both private companies and the agency to be more intentional about conservation in their planning. The Biden administration continues to emphasize its goal of permitting renewable energy on public land across Nevada. The administration has also backed lithium projects in Nevada that could help to boost electric vehicle production.

“There’s a pretty strong recognition from the Biden administration that we need to be providing for a clean energy economy,” said Ken Rait, public lands director at the pro-conservation Pew Charitable Trusts. “This just gives BLM a chance to be smart from the start.”

Lee, though, is worried the proposed rule could hamper efforts to incentivize clean energy companies to set up shop in Nevada – and she plans to use her perch on the House Natural Resources Committee to ask Interior Secretary Deb Haaland about her concerns later this month. 

The rule directs BLM to promote mitigation — efforts to reduce or offset the impacts of development — in its leasing processes. Birdsong anticipates BLM compelling companies to pay mitigation fees or conduct mitigation projects to aid in biodiversity conservation.

The conservation leases are aimed at giving the proposed rule longevity. Under existing policy, one of the limited means BLM had for advancing conservation was to designate a parcel of land as an Area of Critical Environmental Concern (ACEC) during the land use planning process. But a subsequent administration could easily remove that designation, opening up the land to other uses. 

The proposed rule would create a 10-year time frame for conservation leases, which would ensure mitigation and restoration efforts continue beyond changes in administrations.

As an example, Birdsong said a company wanting to build a solar farm on public lands in Nevada would first acquire the right of way to the land from the BLM, which typically lasts 40 years. With the interest in conservation baked into the new rule, the BLM could mandate the company engage in a mitigation effort. 

Federal land managers could, for instance, ensure the solar farm is built on more durable land, or they could sell a 10-year conservation lease to the company on a separate parcel of land to preserve habitats and offset the potential impacts of the solar farm.

Martin Paris, the executive director of the Nevada Cattlemen’s Association, said while he understands that the intent of the rule is not to prioritize conservation as the agency’s preeminent land use priority, he is nonetheless concerned that the new rule will damage grazing, a land use that already gets “the short end of the stick.” 

In particular, he is worried the leases will further restrict grazing if parcels of land are dedicated for conservation only, despite grazing — so long as land is not overgrazed — can be a biodiversity strategy itself.

“Appropriate grazing is conservation,” Paris said. “Hopefully BLM will recognize that. Usually, when it comes to these decisions of what uses are compatible with other uses or not, livestock grazing is the first thing that goes … We’re a little fearful that this provides a tool to further that end to reduce livestock grazing or chip away at it.”

Beyond the conservation leases, the new rule also creates procedures for identifying and evaluating ACECs, and for creating minimum land health standards for all BLM lands.

The danger of setting policy through the regulatory process is that a future administration could be hostile to the rule’s goals and revoke it.

The Biden administration, for example, spent much of its first year identifying Trump-era environmental regulations it wanted to revoke, and then going through the rulemaking process to do so. But innovations such as the conservation leases could last into future presidential administrations if they hold up under expected litigation. The leases could operate much like those held by oil and gas companies, which have ongoing legal rights to the land. 

Rait said public opinion is on the BLM’s side. In a Colorado College 2023 poll on conservation, 87 percent of Nevadans supported the Biden administration’s 30X30 goal, and 72 percent said they preferred that leaders “place more emphasis on protecting water, air, wildlife habitat and recreation opportunities over maximizing the amount of land available for drilling and mining.”

“They want protected lands nearby that they can go to enjoy, to recreate, to go hunting on,” Rait said. “This rule change really speaks to all of the uses that Nevadans enjoy – not just development.”

Most lawmakers have yet to comment on the rule, which was released on Thursday right before Congress adjourned for two weeks. Sen. Jacky Rosen (D-NV) told reporters in Carson City that she would have to review the rule more when asked Tuesday, and Sen. Catherine Cortez Masto’s (D-NV) office declined to comment.

And Rep. Mark Amodei (R-NV), Nevada’s lone Republican in Congress, said he was disappointed he did not receive a heads up from Interior officials — an issue Paris echoed, saying he was not aware of Interior consulting stakeholders in Nevada before drafting the rule.

Some Western Republicans, including Sens. Kevin Cramer (R-ND) and John Barasso (R-WY) have come out against the proposed rule. Kaitlynn Glover, the executive director of the ranching industry trade group Public Lands Council, called the proposed rule a radical shift made without transparency.

“The covert manner in which the rule was developed and announced has left permittees feeling like the rule is either a capitulation to the extremist environmental groups who want to eradicate grazing from the landscape, or a concerted effort to develop rules that preclude ranchers’ input,” Glover said.

Amodei said he plans to further study the rule, but that he is suspicious of its potential to be used as a means of dragging out permitting decisions to the detriment of burgeoning industries, such as lithium mining. 

He said he favors using the existing National Environmental Protection Act process for identifying conservation concerns when the BLM offers permits and allotments, and worries that the rule will inject greater uncertainty into how conservation is defined, making it easier for officials to shut down important projects.

“I hope this isn’t just another nail in the coffin of the multiple use doctrine, which I think has overall — in any objective sense — served us well,” Amodei said.

The rulemaking process will likely extend into 2024, starting with a 75-day comment period that began in early April. The Nevada Cattlemen’s Association plans to comment on their fears over how boosting conservation could hurt livestock grazing. Paris said the group is also worried that the language around ACECs could be abused.

Other groups — both supportive conservation ones and critical industry and trade groups — are sure to follow in providing comment, given the historic nature of the rule.

“The idea that they’re even doing a rule on conservation is really remarkable,” Birdsong said, citing the fact that the agency has existing rules for managing oil and gas, timber, grazing and other uses. “To do one for conservation is emblematic of the regard that this administration holds for this – not forgotten, [but] uncared for – part of the BLM’s mission.”

The post IndyExplains: How a new BLM rule could make conservation a higher priority in the West appeared first on The Nevada Independent.

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