Unprecedented use of this law could throw all federal land-use plans into ‘chaos’

Using an unprecedented move that’s been described as “nuclear,” the Senate passed three bills last week overturning established land-use plans in Montana, North Dakota and Alaska under the Congressional Review Act.

It is the first time that the CRA — a law designed to allow Congress to rescind executive agency actions — has ever been applied to a land management plan since it was signed in 1996.

The bills passed the House of Representatives last month and are now bound for President Donald Trump’s desk.

While the state delegations celebrate the end of Biden-era restrictions on the debated parcels of federal land, there are many — including both energy advocates and conservationists — who fear that those unprecedented bills will upend land management across the entire country.

That includes long time oil and gas advocates, who urge Congress to use caution.

“I think that it’s necessary to tread lightly,” said Kathleen Sgamma, principal for Multiple-Use Advocacy and a former BLM director candidate in the Trump administration.

“There are some additional legal risks that can arise from the CRA — it’s uncharted ground — and if not used wisely, there could be some legal risks introduced and some bad legal precedent."

Meanwhile, the Department of the Interior is not worried about any broader application for those three specific bills.

“In reviewing the congressional record, it is clear that the House of Representatives has directly responded with specificity to these resource-limiting actions of the Biden-era RMPs,” wrote Kate MacGregor, the deputy secretary of the U.S. Department of the Interior in a leaked memo to the Senate.

“Passage of these corrective CRA resolutions would not limit BLM from continuing to manage public lands in accordance with all applicable laws.”

Critics of the bills call that view short-sighted. Some are convinced that the use of the CRA has the potential to sow confusion and doubt for decades.

“These bills are such a terrible idea,” John Ruple, a research law professor at the University of Utah, wrote in an email to Deseret News.

“This is not about whether the management requirements contained in the challenged plans are a good idea. This is about whether order is preferable to chaos.”

What’s wrong with Congress overturning a controversial land-use plan?

The legal underpinnings are a little yawn-inducing, but it’s the legalese and requirements of the bill that cause critics concern.

In short, the CRA requires anything subject to its review be submitted prior to being enacted. And if Congress hasn’t seen a “rule” prior to it going into effect, then it’s not legally enforceable.

The very first line states that “before a rule can take effect, the federal agency promulgating such rule shall submit to each House of the Congress and to the comptroller general a report.”

None of the hundreds of land use plans implemented since the law was enacted in 1996 have been submitted to Congress for review. The three in the legislation last week received special permission from the Governmental Accountability Office just to be considered at all.

Legal scholars and conservationists argue that using the CRA against some land-use plans — regardless of the limitations written into the new laws — could expose all of them to legal challenges.

“Keep in mind that, potentially, every resource management plan since 1996 is eligible to be overturned,” said Kaden McArthur, director of congressional affairs for Trout Unlimited, a conservation advocacy group representing anglers.

“That is what decides oil and gas leasing plans for millions of acres. Future Democratic Congresses and Democratic presidents — not that far into the future, potentially — could call up the CRA on any number of oil and gas heavy RMPs, and overturn those, and freeze oil and gas production. That is absolutely a concern."

Does applying the CRA undermine the land management process?

Three land-use plans approved during the Biden administration limited natural resource extraction on BLM lands in Alaska, Montana and North Dakota.

In each case, however, the BLM conducted environmental impact studies that took several years to process, each involving layered public input and review. Ultimately, the agency’s records of decisions did limit resource extraction on those parcels of federal land.

“The management decisions finalized in the Biden-era plans significantly curtail multiple uses on many of the underlying parcels in question,” MacGregor wrote in her letter to Senate leadership.

“Impacts range from eliminating access to much needed coal, oil and gas and mineral resources, and in some cases, even reduced access to livestock grazing and off-highway vehicle use.”

Like most land-use plans, that result was not well-received by all.

Particularly not by the impacted states’ congressional delegations, who were the ones who sought and received permission from the GAO to apply the Congressional Review Act to those specific land-use plans earlier this year.

Nada Wolff Culver, the former principal deputy director of the BLM during the Biden administration, is familiar with each of those land-use plans and the ways to overturn them. She described this use of the CRA as questionable, highlighting that in the last 30 years no land-use planner or elected official has attempted to change an existing plan in this way

“It really undermines the land-use planning process that — whether you like the outcome or not — people take very, very seriously in the West. In Utah, in particular,“ Wolff Culver said.

“Hooray! You’re welcome,” Wolff Culver said. “It’s super disrespectful, I think, to the agencies, to the public, to the tribes, to the counties, who worked very hard to craft this process, to participate in this process.”

By overturning the plans, Congress is not “magically” ushering in a different land-use plan either, Wolff Culver said. Instead, it’s necessitating a whole new review process. An option, she pointed out, that was already available to the BLM and Congress prior to the use of the CRA.

Sgamma, too, reiterated that the federal government had a number of options available that did not have the potential to undermine the legal integrity of land-use plans.

“These plans done by the Biden administration were very egregious in many circumstances, so I get why they’re mad, but they might just take a step back and go, ‘Hey, wait, we’re working with a friendly administration,’” Sgamma said.

“It would be easier to just let the BLM — let a friendly BLM — do its thing and get these plans done and defended within the Trump administration."

Are all land management plans at odds with the law?

In the days before the Senate voted to use the CRA to address land-use plans, a leaked anonymous legal complaint drafted in Wyoming made its way around Capitol Hill. It leveraged all the arguments that critics of the bill were most concerned about.

“This case concerns the federal government’s unlawful issuance of thousands of oil, gas, and mineral leases, drilling permits, and other authorizations in Wyoming. Under federal law, the Bureau of Land Management (BLM) may only take actions and authorizations pursuant to a valid Resource Management Plan (RMP),” reads the lawsuit.

“Congress has now confirmed that each and every RMP in Wyoming — and many across the nation — is legally invalid because none of the RMPs were ever submitted to Congress under the Congressional Review Act (CRA). This means that each and every oil, gas, and mineral lease, drilling permit, and other authorization issued pursuant to those RMPs is also invalid.”

The lawsuit targets the BLM field offices in Wyoming, which have issued 2,599 oil and gas leases on nearly 2.2 million acres since the CRA was signed into law.

But it also makes clear that all land-use plans from every state that were not submitted to congress prior to 1996 are also at odds with the current use of the law. In Utah, it is more than 500,000 acres of oil and gas leases alone — not including parcels good for natural resource extraction that have conflicting recreation use — that could be subject to legal action.

Some conservationists say that this complaint will lay the groundwork for the legal challenges that will come for any contentious land-use plan.

While the suit and any further action are still pending, legislators and Interior officials remain calm that such concerns are unwarranted.

“The CRA does NOT prohibit the BLM from issuing a new amendment. The CRA simply prohibits the new administration from issuing a substantially similar coal amendment, and in this case that means they can’t permanently prohibit new coal development,” said Sen. Steve Daines, R-Mont., in remarks prepared for a Senate floor speech last week.

“Today you may hear from the other side of the aisle that the sky is falling. That’s not true. Today we are righting a wrong.”