Democratic senators and experts warned on Wednesday that Congress’ decision to scrap Biden-era plans for how federal land can be used could create a legal vacuum and make it impossible for the Bureau of Land Management to plan for the future.
At a Senate Energy and Natural Resources Committee hearing, Sen. Catherine Cortez Masto asked a former BLM state director, James Kenna, how Congress’ decision last month to repeal three land management plans would affect the agency’s ability to develop a comprehensive plan for how habitat conservation, recreation, energy production, grazing, construction and other activities can take place on public land.
“Senator, I don’t see how it can’t help but undermine it,” Kenna, who directed various state offices at BLM including California and Arizona before retiring in 2015, said. “I think it’s going to create a mess.”
Congress has rolled back six Biden-era land management plans in the past three months, including three on Tuesday that are expected to pass the Senate. It has targeted these plans using the Congressional Review Act, a tactic used to scrap agency-issued rules that federal lawmakers don’t like. In some of these places, BLM is now set to operate under decades-old plans to manage resources and direct activity.
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Republicans say these land management plans were issued without requisite input from state officials. Democrats raised concerns at the hearing that applying the CRA to land management plans, which are created through a long, painstaking public process, would create legal uncertainty and confusion about what activities are allowed on affected land.
“I’m concerned, if a land-use plan is now considered to be a regulation that Congress can overturn, how does this bode for other existing or future land use plans?” Cortez Masto said. “The concern we’re all talking about is top-down, driven from Washington dictating what happens and we’re still doing it.”
The resource management plans that Congress repealed highlighted tensions between conservation and industry. In Montana, a Biden-era amendment to an existing plan restricted millions of acres of coal deposits. In Alaska, a plan finalized during the Biden administration designated a chunk of the central Yukon area for conservation. In North Dakota, the entire state was under a new plan that closed more land to mining and drilling. Congress passed a law in 1976 requiring BLM to update or revise resource management plans as needs arise.
Republicans from those states wanted to ditch resource management plans and block future administrations from putting those restrictions back.
While the Congressional Review Act process prevents rules that are “substantially the same” from being enacted after a previous rule is reversed, it’s unclear how that will apply to BLM plans. As the agency and local field offices try to rewrite plans and issue individual permits, they have no clear guidance for what stays and what goes from repealed plans.
“Anyone who functions based on a permit that is issued as a result of and part of a planning process should be deeply concerned about what’s coming, and that includes the oil and gas industry,” Michael Carroll, the BLM campaign director for The Wilderness Society, a conservation group, told NOTUS. “Because it’s very questionable whether or not those permits are valid because they’re based on plans that don’t exist.”
Senators also drew attention to the need for more staffing and funding for the BLM. The Trump administration has directed the agency to cut back spending, and in October announced plans for sweeping layoffs.
Cortez Masto also asked Kenna whether those cuts to the workforce and funding for BLM would play a role in the agency’s ability to manage land. “You’ve got to have access to an interdisciplinary staff,” Kenna said. “I share your concern as I see some of these field offices are losing key bits of expertise.”
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