|A ConocoPhillips seismic camp in Alaska’s National Petroleum Reserve in 2017. The Biden administration in March 2023 reduced the area that the oil company can drill. Photo: Bureau of Land Management Alaska/Sarah LaMarr via Flickr Creative Commons (CC by 2.0).|
Issue Backgrounder: Public Lands Face New Challenges in Today’s Energy, Climate Landscape
By Joseph A. Davis
“Drill, baby, drill.” That was a campaign meme for Republicans, supported by the oil industry, back in 2008 — and in most years it still is. But what they actually wanted to drill was public lands.
Today, as we hobble forward in some kind of transition to green energy, public lands are still at the center of the debate. That debate is still raging. But it has changed.
There are a lot of public lands in the United States. If you drive the plains and desert where towns are 40 miles apart, you might get the idea that they are unlivable, and that nobody wants them. Nonetheless, we fight over them. Because, actually, they are priceless.
Now new challenges are overtaking our often-outdated public lands mindset and legal fabric. Climate change, wildfire, drought, floods, shifting ecosystems and clean energy transition are confronting us with unprecedented conditions.
Our uses of public lands, and our attitudes toward them, go way back in history and law. It’s worth knowing how our ideas about them have changed over history because that still shapes our thinking about them today.
From manifest destiny to multiple use
The European settlers thought of those vast lands as empty — even though they were full of Native people. By legislation, by violence and by money, settlers took possession of those lands (at least in theory) and then proceeded to give much of it away.
The idea was that settling the West was our “manifest destiny.” It wasn’t.
Vast tracts of the West were too arid for farming or much else. Extraction of minerals was encouraged — without much thought of cleanup or land restoration afterward. Ranchers claimed the right to graze cattle and livestock on the “open range.” Some of those arid lands were “reclaimed” with water from big dam projects in the 1900s — but the water often went to expand unsustainable cities and farming.
With public support, Congress
passed new laws meant to govern
the use of federal lands in wiser ways.
During the last half of the 20th century, a sort of “green” revolution happened. With public support, Congress passed new laws meant to govern the use of federal lands in wiser ways.
Some lands were set aside as wilderness. The Wilderness Act of 1964 gave them permanent protection. The Multiple-Use Sustained-Yield Act of 1960 and the Federal Land Policy and Management Act of 1976, or FLPMA, tried to resolve conflicts by giving various federal agencies guidance and authority to manage them.
On many land categories (but by no means all) the doctrine was for “multiple use” — a balanced mix of conservation … and also grazing, mining, logging and drilling.
Tongass battle signals climate concerns
Another example was the Alaska National Interest Lands Conservation Act of 1980, which divvied up one of the largest-ever masses of public lands in a state admitted to the union just three decades earlier.
ANILCA, as it’s known, was a grand compromise, giving vast tracts of land to extractive industries like drilling, logging and mining — but also recognizing the rights of Alaska Natives to tracts of land, as well as their rights to use that land for subsistence via fishing and hunting. Vast tracts also went into strict conservation categories like national parks.
Many of the parties thought a deal was a deal. But it wasn’t.
The Tongass National Forest had been established even before ANILCA, which meant this vast pristine old-growth rainforest could be logged. But its 17 million acres are so vast that much of it still hasn’t been cut.
Today, conservation groups are still battling the timber industry over Tongass. And now the Tongass debate involves a new and urgent concern: climate. Storage of carbon is a legitimate public purpose today in a way it wasn’t 40 years ago.
Some of the legal foundation of federal public lands management goes back, a lot farther back. Much of today’s leasing, for instance, is still governed by the Mineral Leasing Act of 1920.
Even that’s nothing. For example, mining is still governed by the General Mining Act of 1872 — which Congress has been trying and failing to update for a long time.
Even offshore leases are governed under the Outer Continental Shelf Lands Act of 1953 — among a whole bunch of other laws. The part of the Continental Shelf that belongs to the United States is beyond the three-mile zone for state waters. It ends typically at about 200 miles from the shore.
When it comes to federal “lands,” these submerged acres are important, not only because they contain oil and gas, but because they can be leased for offshore wind energy.
Biden administration’s public lands struggle
That didn’t work out so smoothly, and political war is still raging over energy on public lands.
The Biden administration
proposed a sweeping overhaul
of regulations governing how
the BLM oversees its lands.
Most recently, on March 30, the Biden administration proposed a sweeping overhaul of regulations governing how the Interior Department’s Bureau of Land Management oversees its lands. The move was a proposed regulation, so the comment period is underway and ends roughly June 20 (read the docket).
The proposal would change existing regs under FLPMA by making conservation a land use that is on equal footing with mining, grazing, logging and all the others. The Interior Department could issue leases for the purpose of conservation. Such conservation leases could be bought by extractive land lessees to offset their disturbances.
We will know more about how this BLM proposal actually affects the land when it is finalized. While its political impact would spill over into the 2024 election, Biden may feel the negative effects in states he would lose anyway. If finalized, it would take years more to have much impact on the lands themselves.
Oil leasing and the law
Biden actually did try to freeze oil and gas leasing on public lands, but it did not go smoothly. On Jan. 21, 2021, shortly after taking office, he issued an executive order pausing leasing. Then the litigation started.
The oil industry has many good lawyers. Biden’s leasing pause was blocked, unblocked and eventually fragmented into several regional debates.
The 73 million-acre Gulf of Mexico lease sale that he had previously canceled was forced upon him by Sen. Joe Manchin (D-W.Va.) as part of the Inflation Reduction Act. The sale was finally held on March 29, 2023. Environmental groups’ efforts to block it were unsuccessful.
Some of the battle has now shifted to the Arctic. The frozen North has long been an arena for drilling debate. Early in his term Biden suspended leases in the Arctic National Wildlife Refuge, or ANWR, which had been passionately contested for decades. That didn’t really settle much.
Eventually, Biden’s Interior Department declared a moratorium on all leases in the Arctic Ocean. That did not placate environmentalists, because of the subsequent decision to go ahead with the massive Willow Project.
Willow and the climate debate
There’s a story there, and a legal fight that’s still going on.
Let’s start with the name. This tract on Alaska’s North Slope was once known as Naval Petroleum Reserve No. 4. Of course the Navy is no longer strategically dependent on oil to run its ships. The name morphed into National Petroleum Reserve-A.
The name alone seemed to suggest that drilling was its destiny. By comparison, “Willow Project” sounds kind of earthy-crunchy.
Environmentalists opposed to the
Willow Project point out that the
climate consequences of burning
that much fossil fuel are catastrophic.
One reason the Biden administration isn’t staking everything on the Willow Project is that the leases have already been sold. That doesn’t matter to environmentalists, who point out that the climate consequences of burning that much fossil fuel are catastrophic.
It’s an example of how climate is changing the debate. Lawsuits and political protests continue.
A recent piece (may require subscription) by Max Bearak in The New York Times tries to put all this in perspective. While Willow is barely a drop in the bucket of worldwide carbon emissions, it is still a major fraction of U.S. oil extraction.
Offshore wind to the rescue — slowly
The Interior Department is legally empowered to lease federal lands, both onshore and offshore, for green alternatives like wind and solar.
But the obstacles are many. Witness the Cape Wind project near Cape Cod. It seemed well on the way to construction, but legal and political opposition forced developers to abandon it in late 2017.
Today, only two offshore wind projects are fully operational, both in the Atlantic, and they are very small scale. Others are today being developed, at a much larger scale, on federally leased offshore lands along the Atlantic.
There are a great many onshore wind and solar projects in the United States, if only because they can be built on private land. Some are on federal and state land. Many of these are built in connection with energy storage projects.
Still, even these projects may face constraints. A farmer or rancher may encounter objections from a neighbor. And renewable energy is most useful if it is storable and aligned with the transmission grid — which does not always have the capacity to move it to market.
Brad Plumer recently reported (may require subscription) for The New York Times on renewables grid problems. In many cases, the regional grid operators just can’t keep up with the volume of new connections.
Interior Secretary Deb Haaland in December announced an initiative to move renewables on public lands more quickly.
[Editor’s Note: Haaland is scheduled to speak at the Society of Environmental Journalists’ annual conference in Boise, Idaho, on April 21. See details of the livestream.]
Joseph A. Davis is a freelance writer/editor in Washington, D.C. who has been writing about the environment since 1976. He writes SEJournal Online's TipSheet, Reporter's Toolbox and Issue Backgrounder, and curates SEJ's weekday news headlines service EJToday and @EJTodayNews. Davis also directs SEJ's Freedom of Information Project and writes the WatchDog opinion column.
* From the weekly news magazine SEJournal Online, Vol. 8, No. 16. Content from each new issue of SEJournal Online is available to the public via the SEJournal Online main page. Subscribe to the e-newsletter here. And see past issues of the SEJournal archived here.