One central characteristic of the Biden administration is its contempt for the letter of the law. When laws interfere with overriding political objectives, they are cast aside, and the courts are often forced to clean up the mess.
Nowhere is this norm-busting reality more pronounced than at the Department of the Interior’s Bureau of Land Management (BLM), whose leasing of federal lands for fossil-fuel production has become ever-more politicized since the day Biden took office.
The BLM is authorized to manage federal lands under the Federal Land Policy and Management Act (FLPMA) of 1976. Under the explicit language of the FLPMA, the “principal or major uses” of the public lands “includes, and is limited to, domestic livestock grazing, fish and wildlife development and mineral exploration and production, rights-of-way, outdoor recreation, and timber production.”
Notwithstanding the statutory inclusion of “mineral exploration and production” as one of the “principal or major uses,” total acreage under lease for oil and gas operations on federal lands is at its lowest level since the 1940s. The number of new leases declined from 1,729 in fiscal 2012, and 1,841 in fiscal 2019, to 120 last year. Acreage in new leases has declined from 1.75 million in fiscal 2012, and 2.25 million in fiscal 2019, to just 74,758 in fiscal 2022.
Not content with this slow strangulation of fossil-fuel leasing on federal lands, the Biden BLM has now decided simply to remove whole swaths of land from leasing consideration altogether. The latest example of this new approach is the recent BLM regulatory proposal — its “preferred alternative” — to bar new oil and gas leasing across roughly 1.6 million acres in Colorado.
Amusingly, the BLM says in its draft regulation that the federal lands to be excluded from leasing have “no-known, low and medium oil and gas development potential” for fossil-fuel production, as if Beltway bureaucrats were better at determining such potential than industry participants betting their own money.
Less publicized, and less amusing, is the dark reality that this proposal is the result of a typical “sue-and-settle” racket, in which environmentalists and federal bureaucrats agree to settle environmental litigation on terms satisfying the ideological and bureaucratic preferences of both sides. Who represents the taxpayers or the states or the economy writ large in such backroom dealing? No one does.
The Colorado land grab is not unique; similar policies have been implemented in New Mexico and other Western states on federal lands with significant exploration potential. This represents an expanding politicization of federal land management in flagrant violation of the letter of the law.
In a separate proposed rule, the BLM now argues that “conservation” is a “use” of federal lands “on par with other uses” under the FLPMA. Except that no, it is not. FLPMA is very clear that the “principal or major uses” are “limited to” the ones listed in the text, and this does not include “conservation” or other uses politically favored or fashionable. “Conservation” may be a secondary “use” consistent with the FLPMA, but it is not a “principal or major use” and therefore cannot be “on par” with principal or major uses.
To the Biden administration, the law is irrelevant. The Mineral Leasing Act of 1920 requires onshore oil and gas leasing “at least quarterly,” yet it deliberately violated the law by refusing to hold such lease sales. The lease sale last May was the first in almost a year. The Biden administration conducted auctions in only one of its first six quarters in office, but now has announced a lease sale on November 30 for oil and gas resources on BLM land in New Mexico and Oklahoma.
During the Obama administration, the Supreme Court struck down the Environmental Protection Agency Mercury and Air Toxics Standard (MATS). Gina McCarthy, then the Environmental Protection Agency’s administrator, dismissed the court decision because most power plants affected by the rule already had made the investments needed to comply with it, and many others had shut down because of the attendant costs. That McCarthy found this outcome highly favorable illustrated her contempt for the rule of law.
The same was true of her observation that there are “very compelling reasons” for electric utilities to continue to treat the rule as a requirement, even though it had been struck down as unlawful. Who does that Supreme Court majority they think they are, anyway?
So much for the rule of law, then. And the Biden administration has expanded its hostility toward the laws dramatically. Such are the fruits of prioritization of ideological and bureaucratic imperatives above constitutional principles.
Benjamin Zycher is a senior fellow at the American Enterprise Institute.