Senate Nixes Management Plans to Open Access for Fossil Fuels

Congress took the unprecedented step this week of repealing management plans for public lands in three states in an effort to expand access to fossil fuel mining and drilling.

Critics of the move warn it could inject a new level of uncertainty into management of these areas and open a wave of litigation over leasing for energy development, grazing and other uses.

The Senate approved three resolutions this week that wipe out resource management plans enacted during the Biden administration in Alaska, Montana and North Dakota. The resolutions came under the Congressional Review Act, which empowers Congress to nullify executive branch rules. Each resolution had previously passed the House of Representatives. 

The Biden-era plans had ended coal leasing in the prolific Powder River Basin and limited access to oil and gas development across millions of acres of public lands compared to previous plans.

Sen. Steve Daines (R-Mont.), who sponsored one of the resolutions, said in a Wednesday speech celebrating the vote that the Biden-era plan was enacted despite opposition from local communities and officials, and called it “an attack on Montana jobs” and “on Montana communities.”

Daines also rejected the notion that the resolution would cause chaos, arguing that it simply repealed the Biden administration’s latest amendment to the management plan while leaving the rest of the plan in place.

Sen. Kevin Cramer (R-N.D.), a sponsor of the bill covering that state’s plan, said in a statement that the Bureau of Land Management had violated its obligation to balance multiple uses of the land by all but eliminating coal leasing.

Democrats voted against the measures, and conservation groups have said the repeal will threaten conservation gains made after years of painstaking work, including protections for caribou, Dall sheep and salmon in Alaska. 

The Bureau of Land Management uses resource management plans to set parameters for how to balance multiple uses on public lands, including energy development, grazing, conservation and recreation. The plans are usually in place for years, and can take years to develop, incorporating input from numerous stakeholders, said Rachael Hamby, policy director at the Center for Western Priorities, a conservation group.

These plans had never before been considered rules, which is a requirement for eligibility under the Congressional Review Act. Now that lawmakers have taken this step, some legal experts have warned it could open up hundreds of plans for review.

Hamby warned that applying the Congressional Review Act would open what is normally a slow, deliberative process to the whims of Congress and partisan swings.

“You see Congress potentially going down a path of micromanaging all the resource management plans in the country,” Hamby said.

On Wednesday, lawmakers from Wyoming introduced a resolution to repeal a resource management plan for that state.

In a speech on the Senate floor, Sen. Martin Heinrich (D-N.M.) warned that the resolutions could cast doubt on resource plans across the country. Because other existing management plans have not been submitted to Congress as rules, he said, it could now be possible to argue that all of the plans enacted since the Congressional Review Act was passed, in 1996, are technically not in effect.

“And if they never went into effect, then all of the leases, and permits and rights of way that flow from those plans may not be legally valid,” Heinrich said. 

Because the Congressional Review Act prohibits agencies from adopting rules that are “substantially the same” as what has been repealed, it also injects uncertainty into how future management plans can be shaped, Hamby said.

A group of legal experts wrote to Congress last month warning that using the Congressional Review Act on the plans could open up an “endless cycle of litigation.” 

The Western Energy Alliance, which represents oil and gas companies in Western states, praised the passage of the North Dakota resolution, which it said would have the most significant impact on its members. “The Senate resolution is a welcome step that will bring more certainty to energy development and other multiple uses on public lands managed by BLM,” said Melissa Simpson, the group’s president, in a written statement.

Aaron Johnson, the Western Energy Alliance’s vice president of public and legislative affairs, dismissed the concern that repealing the plans would cause legal chaos, saying it will simply revert them to the previous versions.

Hamby said the move could come back to harm some of the interests these resolutions were meant to support, by opening up any leases offered under the now-repealed plans to legal challenges.

“I would not be surprised if we see something like that soon,” Hamby said.