When the Alaska, Montana, and North Dakota congressional delegations launched the process of invalidating Biden-era Resource Management Plans (RMP) in February by asking the Government Accountability Office (GAO) to determine whether RMPs could be subject to the Congressional Review Act (CRA), I have to admit, I was nervous. The CRA is a blunt instrument that wipes away a rule and prevents a federal agency from instituting another that is “substantially similar.”
RMPs seem ill-suited to the CRA because they’re complex documents that take years to develop and ideally are an amalgamation of thoughtful public input from affected stakeholders and robust technical analysis by experienced federal, state and local land-use officials. If an RMP is overturned by the CRA, the Bureau of Land Management (BLM) must then manage the affected lands under the previous RMP, which in most cases, is decades old. Years of new data, technical studies, and updated best practices are wiped away with a reversion to the old plan, and BLM must go back through the full land-use-planning process to create another plan that is not “substantially similar.” But what constitutes substantially dissimilar for an RMP to survive the inevitable legal challenge?
As someone with a personal and professional interest in seeing BLM manage the lands responsibly for balanced multiple-use, I was worried that Congress wasn’t considering the full impacts of the CRA. Then the CRAs kept coming, with resolutions for the Buffalo, National Petroleum Reserve in Alaska, and Coastal Plain plans added to those for North Dakota, Miles City, and Central Yukon. No doubt the delegations were rightfully upset at the Biden plans that largely ignored the input of the states and local communities in favor of anti-fossil fuels constituencies. They imposed coal moratoria in Montana and Wyoming, closed off 213,000 acres from oil and natural gas in North Dakota’s highly productive Bakken, and prevented access to vast energy and other mineral resources in Alaska. But were they considering the potential legal challenges to the follow-on plans and the impacts on BLM’s ability to conduct good land-use planning?
BLM already has its plate full to fulfill President Trump’s deregulatory and unleashing American energy agendas without having more plans to rewrite. Several complex rules, detailed planning documents, and policy manuals need to be rewritten, with detailed processes that must be followed to ensure they can survive legal challenge. I’m concerned that BLM can get through all those steps in time to defend its work in court during this current administration without adding a re-do of several more RMPs and another legal challenge wrinkle. They’re already up against the clock.
But these plans needed to be rewritten anyway to remove impediments to energy development and enact the president’s agendas. And of course, all four congressional delegations consist of savvy public lands experts who successfully transformed the CRA cudgel into a scalpel. Yes, the use of the CRA does introduce a new avenue for litigation, and there is a considerable risk that the Trump BLM does not complete all necessary plan amendments in time to fully defend them before the clock runs out. But these members of Congress did a solid job of specifying in the congressional record what exactly they objected to in the plans. They gave BLM a roadmap to follow on what to change to satisfy the courts that BLM has instituted new plans that are not “substantially similar” to the overturned plans. While you can never predict the roulette wheel of a future judicial ruling, that clear direction from these delegations has considerably reduced legal risk. In the cases of Miles City and Buffalo, the CRA could save BLM from going through the full amendment process, as they were clean excisions of the coal moratoria amendments. BLM can simply revert to the previous 2015 plans.
But there still is a larger risk to BLM planning overall. According to the Public Lands Foundation, an organization of BLM retirees, there are 117 existing plans (subtracting out the six plans that Congress has overturned/plans to overturn) that could be in jeopardy because they have not been submitted to Congress as required by the CRA. Environmental groups are making noise that they plan to challenge not just the plans but all decisions made under them, especially oil and natural gas leases and drilling permits. Grazing permits, other rights-of-way, or any other decision these obstructionist groups don’t like could be similarly challenged.
Except BLM has two big trump cards. First, they could quickly notify Congress of all the outstanding plans, which is not an onerous process. Congress could simply run out the CRA’s 60-day clock and voilà, the legal risk is gone as is turmoil in the planning process. BLM can still amend or update any plans it wants to, but the direct risk to existing plans is gone and any litigation these groups may advance becomes moot. I strongly encourage BLM to do so sooner rather than later. The effort to notify Congress is much less than that required to deal with lawsuits, however frivolous, especially considering the risk of an activist judge using them to tie up leases and permits.
The second is the plain language of the CRA and a little noticed legal precedent from 2009. Clearly, the plain language of the CRA means that when Congress uses the CRA on a handful of plans, it does not therefore, invalidate all plans. Just like using the CRA to invalidate one regulation does not invalidate them all, overturning six RMPs does not overturn 123—just the plans Congress has specifically invalidated. It’s really that simple.
But just in case an obstructionist group files suit before an activist judge, who by definition has trouble reading the plain language of laws, there is also legal precedent. No less than then-Circuit Court Judge Brett Kavanaugh ruled in Montanans For Multiple Use v. Barbouletos against the plaintiffs who asked the court, “…to invalidate an unspecified number of previous Forest Service amendments to the Flathead Plan because the Service allegedly failed to satisfy the reporting requirement contained in the [CRA]…The Act, however, also states that ‘[n]o determination, finding, action, or omission under this chapter shall be subject to judicial review.’ Id. § 805. That latter provision denies courts the power to void rules on the basis of agency noncompliance with the Act. The language of § 805 is unequivocal and precludes review of this claim…” 568 F.3d 225, 229 (D.C. Cir. 2009).
Despite all the saber rattling, environmental groups do not have carte blanche to challenge all public lands decisions on other plans because of Congress’ recent use of the CRA on a handful. I urge BLM to notify Congress of all 117 extant land-use plans (and the Forest Service as well) sooner rather than later and avoid needless churn in the proper management of our public lands.
