As the 2020 presidential campaign made clear, President-elect Biden plans to usher in a sharp shift in policy priorities across the federal government. We anticipate significant changes in the management of federal public lands to be part of that policy shift. While any change in presidential administrations can have significant impacts on management of federal lands and resources, the contrast between the Trump Administration and the Biden Administration will be especially stark.
The Bureau of Land Management (BLM), National Park Service, US Fish and Wildlife Service and US Forest Service (USFS) collectively manage approximately 640 million acres of public lands, representing more than a quarter of the nation’s lands, plus the Outer Continental Shelf (OCS).1 President Trump’s public lands agenda focused on achieving American “energy dominance” and, as such, the Trump Administration prioritized actions to expand oil and gas development and lessen regulatory burdens. By contrast, President-elect Biden’s public lands policy—set at a time of abundance in the fossil fuel supply—reflects two overarching themes: (1) the need to strike a balance between conservation and development, including by ensuring the protection of special or sensitive areas; and (2) minimizing climate change impacts of development projects on public lands and waters.2 If Republicans maintain a Senate majority after Georgia’s dual senate runoffs, progress toward President-elect Biden’s conservation and climate goals may be limited to actions that the executive branch can take without Congress, i.e., rulemaking and executive orders. Any Trump-era regulations that the Biden Administration seeks to reverse may take years to accomplish, and then might be subject to legal challenges.
I. Reversing Trump-Era Rollbacks
As the nation’s largest manager of federal lands—including the OCS—the Department of the Interior (DOI) was the focus of most of the Trump Administration’s attempts to accelerate energy development on federal lands. Through a series of secretarial orders and regulatory rollbacks, DOI advanced a far-reaching array of public land use policies including terminating President Obama’s moratorium on federal coal leasing; rescinding DOI’s climate and mitigation policies; repealing the Methane and Waste Prevention Rule; finalizing land use plans to allow increased development in areas that were once part of the Bears Ears National Monument and the Grand Staircase Escalante National Monument; eliminating restrictions on oil and gas development in sage grouse habitat; reversing President Obama’s plan to withdraw certain areas of the OCS from oil and gas development; and offering oil and gas leases in the Arctic National Wildlife Refuge.
The USFS also plays a significant role in public lands policy. We can expect the Biden Administration to reexamine Trump-era proposals to streamline oil and gas permitting in National Forests and withdraw President Trump’s plans to allow timber harvesting and road construction in the Tongass National Forest. Coupled with President Trump’s regulatory changes to the Endangered Species Act, and revisions to the National Environmental Policy Act (NEPA) regulations, most, if not all of the Trump Administration’s public lands actions will be targets for reversal in the Biden Administration as part of a comprehensive public lands agenda.
II. A Climate Lens on Public Lands Management
As discussed in our previous alert, the Biden Administration’s climate agenda will permeate every aspect of the Administration’s policies, especially the management of public lands. All federal agencies, including DOI, will be tasked with taking steps to achieve the overall goal of a carbon-free power sector by 2035 and net-zero carbon emissions by 2050. To that end, the Biden Administration will reintroduce climate analysis into NEPA reviews of proposed projects, create new opportunities for renewable energy development on public lands, and reconsider land management plans finalized under the Trump Administration that allowed expanded access to public lands for fossil fuel development.
There are several ways public land management agencies incorporate climate change into their land use planning and governance documents. By way of example, in the waning days of the Obama Administration, BLM issued in December 2016 the “Planning 2.0 Rule”3 that allowed BLM to specifically address changing resource conditions caused by climate change. The rule stated, “The BLM will consider relevant resource management concerns, such as climate change and the need for climate change adaptation, when assessing the baseline condition, trend, and potential future condition and when identifying the planning issues for any given resource management plan.”4 BLM’s Planning 2.0 Rule was repealed by Congress in 2017 under the Congressional Review Act, which prohibits reinstating a rule “in substantially the same form” as the repealed rule without intervening legislation. Nonetheless, we can expect land managing agencies in the Biden Administration to incorporate into their planning documents an array of measures to address climate change.
A Biden Administration does not mean the end of fossil fuels. He has said that he anticipates an important role for natural gas and oil in the nation’s future. He has emphasized that he does not intend to ban fracking but rather to impose a moratorium on new oil and gas leasing on public lands. We can also expect a Biden Administration to reimpose a moratorium on coal leasing on public lands. Of course, the extent to which the Biden Administration may limit production on existing leases remains subject to valid existing rights.
III. An Increased Emphasis on Conservation
We can expect the Biden Administration to place an amplified focus on conservation in the management of public lands. President-elect Biden has pledged to protect “irreplaceable” places and promised to conserve 30% of US lands and waters by 2030.5 This includes plans to institute permanent protections in such areas as the Arctic National Wildlife Refuge, and “establish national parks and monuments that reflect America’s natural heritage.”6 The Biden Administration will undoubtedly revisit the Trump Administration’s decision to reduce the size of certain national monuments created by Presidents Obama and Clinton, such as the Bears Ears National Monument and the Grand Staircase-Escalante National Monument. As is the case with changes to federal leasing policies, any actions to reverse President Trump’s diminishment of national monuments or to create new monuments must also address and preserve valid existing rights such as mineral leases.
As in other energy, environment and natural resource issues, public lands policy will see a sharp shift following the change of administration in January. Because legislation will likely be very challenging with a divided Congress, many of President-elect Biden’s contemplated policy changes will take place through executive orders, formal rulemaking or land use planning, or in the course of individual project reviews. The rulemaking process and the NEPA review associated with federal agency decision making will present opportunities for interested stakeholders to present their views as the Biden Administration charts its course toward a focus on conservation and climate change.