THE TRUMP PUBLIC LANDS REVOLUTION: REDEFINING 'THE PUBLIC' IN PUBLIC LAND LAW.

Author:Blumm, Michael C.
Position:Symposium: Environmental Law Under Trump
 
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  1. INTRODUCTION 312 II. ATTACKING NATIONAL MONUMENTS 317 A. Bears Ears National Monument 322 B. Cascade-Siskiyou National Monument 329 III. RESISTING "LANDSCAPE" FEDERAL LAND PLANNING 336 A. The Demise of BLM Planning 2.0 337 B. Revising Sage Grouse Plans 341 IV. FOSTERING FOSSIL FUEL DEVELOPMENT 348 A. Rescinding the Coal and Offshore Oil and Gas Leasing Moratoria. 349 B. Scuttling the Methane Anti-Waste Rules 355 C Eliminating the Hydraulic Fracturing Rule 358 D. Revoking the Cost of Carbon Rule 360 E. Streamlining the National Environmental Policy Act 363 V. CONCLUSION 366 APPENDLX 1--NATIONAL MONUMENTS ESTABLISHED SINCE 1978 371 APPENDIX 2--TWENTY-EIGHT RESTORATION MEASURES FOR A POST-TRUMP ADMINISTRATION ERA 374 I. INTRODUCTION

    The Trump Administration's natural resources policies promise to be the most revolutionary since the Harding Administration, (1) if not before. Pronouncing climate change to be a "hoax," (2) President Trump quickly approved several controversial oil pipelines (3) and rescinded numerous conservation regulations." The Administration also conducted review of national monuments that led President Trump to attempt to reduce the acreage of Bears Ears National Monument by 85% and Grand Staircase-Escalante National Monument by nearly one-half, with a number of other monuments apparently slated for reductions in the future. (5)

    At the outset, however, it is important to recognize that the Trump public lands revolution requires, in significant measure, the assent of Congress, which possesses the ultimate constitutional authority over public land management. (6) Any executive authority must be delegated by Congress. (7) Congress exercised that constitutional authority in early 2017 when, through the formerly obscure Congressional Review Act (8) (CRA), it somewhat surprisingly vetoed an update of the Bureau of Land Management's (BLM) thirty-five-year-old regulations governing the approval of federal land plans. (9) This veto was a reminder of the fact that effectuating the Trump revolution will require a partnership between the President and his cabinet and Congress. Credit or blame for the revolution will not therefore be the President's alone.

    Failure to understand the limits of executive authority over public lands may, however, undermine implementation of some parts of the Trump revolution. In particular, presidential authority to revoke or diminish national monuments is far from clear and has drawn serious legal challenges. (10) Although secretarial authority does exist to revise land plans or to revoke regulations like the Interior Department's tracking rule, that authority is fettered by the sometimes overlooked substantive requirement of the Administrative Procedure Act (11) (APA) that such changes must be rational and consistent with applicable environmental laws. (12) These requirements have sometimes proved to be surprisingly difficult judicial hurdles. (13) And while Congress has delegated considerable discretion to the Secretary of Interior to increase mineral leasing and to the Secretary of Agriculture to increase timber sales, (14) those actions also must comply with environmental laws like the National Environmental Policy Act (15) (NEPA) and the Endangered Species Act (16) (ESA), which have proved to be stumbling blocks to other deregulatory efforts affecting public land management. (17) However, the Trump revolution also promised a partial dismantling of NEPA, and Congress seemed prepared to dilute NEPA's application to public land developments as well. (18)

    The Trump revolution's threat to substantially increase fossil fuel production from federal lands will increase use-monopolies, since mineral leasing is often incompatible with wildlife and water-quality protection. (19) Revising land plans to allow for more leasing and diminish sage grouse protection would reflect the ascendancy of states' rights in public land law, at least where the plans serve local commodity production interests. (20) These results would carry some significant democratic irony, since the rural economic interests arguably served by these developments are vastly outnumbered by urban preservationist concerns in western cities, and the West is the most urbanized region of the country. (21)

    This Article considers the Trump revolution in public land law from three primary perspectives. First, we examine the Trump attack on the national monuments, which is arguably grounded on a mistaken assumption of presidential authority under the Constitution's Property Clause. Second, we explain the demise of revised BLM planning regulations and the impending revisions of Federal Land Policy and Management Act (22) (FLPMA) land plans affecting sage grouse, for they reveal an Administration which considers parts of the public--those with substantial local clout in rural areas--to be more important than the more numerous recreational and preservationist community that public lands serve. Third, we assess measures affecting leasing of public lands for fossil fuel production, where the Trump Administration's policies will have their most immediate effects.

    Although President Trump signaled some time ago that he did not support public land sales, (23) he made no promise not to despoil them. He seems to be prepared to make public land mineral leasing and the creation of accompanying use-monopolies on public lands the centerpiece of his version of energy dominance. (24) This Article concludes that if the Trump revolution's efforts to increase commodity production on federal public lands succeed, the result will mark a fundamentally undemocratic redefinition of "the public" in public land law.

  2. ATTACKING NATIONAL MONUMENTS

    The Antiquities Act of 1906 (25) authorizes the President to establish national monuments on federal lands to protect significant natural, cultural, or scientific features. (26) Over the years, nearly every president since Theodore Roosevelt has invoked the statute to protect federal lands of historical, scientific, and ecological interest. (27) Monuments have been as large as the Grand Canyon and have protected fish habitat as well as historic objects, both of which have been upheld by the United States Supreme Court. (28) Some Antiquities Act reservations proved to be controversial, as in the case of Jackson Hole. (29) Many more have been spectacular successes, evidenced by their frequent subsequent ratification by Congress as national parks. (30) No court has ever invalidated a monument proclamation for being in excess of the authority Congress delegated in the 1906 statute.

    Despite the significant conservation achievements of the Antiquities Act, President Trump issued Executive Order 13792 in April 2017, directing Interior Secretary Ryan Zinke to review monuments over 100,000 acres established during the previous twenty years and those created or expanded "without adequate public outreach and coordination with relevant stakeholders" that "may also create barriers to achieving energy independence, restrict public access to and use of Federal lands, burden State, tribal, and local governments, and otherwise curtail economic growth." (31) The executive order did instruct the Secretary to act "consistent with law," and the text of the Antiquities Act includes none of the directives contained in the Trump executive order. (32)

    Secretary Zinke proceeded to evaluate twenty-seven monuments; his review generated some two million public comments, 98% of which were opposed to making any changes to them. (33) Despite the overwhelming public opposition to reducing their size, Secretary Zinke recommended downsizing several monuments. (34) In October 2017, the Interior Department released its final report on energy burdens, another response to the Trump executive order. (35) The report called for agency initiatives to alleviate or eliminate agency actions inhibiting energy development, and perhaps unsurprisingly, recommended a long list of policies to facilitate development of oil and gas. (36) On December 4, 2017, President Trump proceeded to slash the size of Bears Ears National Monument by 85% and cut the size of Grand-Staircase Escalante by nearly one-half. (37)

    Presidential authority over public lands involves the Constitution's Property Clause, which allocates exclusive authority to Congress and doesn't mention executive authority. (38) The Supreme Court has uniformly held that the Property Clause is "without hmitation." (39) Thus, presidential authority over public lands must be the product of delegations from Congress. Congress included no grant of presidential authority to revoke or substantially diminish national monuments in the Antiquities Act. (40)

    Whether one president may revoke a monument proclaimed by his predecessor was raised in 1938 by Franklin Delano Roosevelt (FDR) concerning the Castle-Pinckney National Monument in South Carolina, established by Calvin Coolidge a decade before. (41) Attorney General Homer Cummings, in a formal opinion, instructed FDR that he lacked revocation authority. (42) The Cummings opinion reflected the Constitution's allocation of authority between the executive and legislative branches, examining public land statutes Congress enacted during the Antiquities Act's era--including the 1897 Organic Act (43) for national forests and the 1910 Pickett Act (44) for lands outside national forests--in which revocation authority was specifically granted to the executive. (45) The opinion contrasted these statutes with the Antiquities Act, which included no express revocation authority. (46) Since the Supreme Court has repeatedly ruled that the Property Clause gives Congress plenary authority over federal public lands, (47) executive authority over public lands must be authorized by Congress. With no express authority for revocation in the Antiquities Act, the Attorney General was justified in concluding that the President lacked that authority.

    The question of the...

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