The use of the Congressional Review Act (CRA) to overturn land use plans continues to be an issue I worry about for multiple-users of public lands, on whose behalf I advocate. In a nutshell, Congress has overturned Resource Management Plans (RMP) for North Dakota; Central Yukon, AK; and RMP amendments in Miles City, MT; and Buffalo, WY. Similarly, Congress used the CRA to overturn the Biden-era National Petroleum Reserve in Alaska Integrated Activity Plan and Coastal Plain Oil and Gas Leasing Program, both of which have had new Records of Decision issued by the Trump administration; and the Boundary Waters Public Land Order that withdrew 225,000 acres from mining in northern Minnesota.
I totally agree with the Alaska, Minnesota, Montana, North Dakota, and Wyoming congressional delegations’ motivations in turning to the CRA. There were many objectionable elements in these Biden plans such as coal and critical minerals moratoria and excessive acreage closed to oil and natural gas leasing.
But the novel use of the CRA on RMPs puts us in unchartered legal territory. The CRA prevents an agency from issuing a follow-on rule, or in this case, RMP, that is not a simple repackaging. Since RMPs have a high level of complexity and countless technical details covering all activities on federal land, how might a court decide whether a follow-on RMP meets the CRA’s requirement that it’s not “substantially the same” as the plan that was overturned? Might Congress pin-ball back and forth between plans it likes and dislikes based on which party is in the majority? If the Trump administration does not check all boxes for properly submitting to Congress the RMPs it develops, such as the sage grouse plans, can a court be found that will throw them out? When next Democrats hold the trifecta of the White House, Senate, and House, will they overturn Trump-approved plans and decide previously overturned Biden plans are back in effect? Will a future Congress use the CRA to overturn other plans with grazing, timber, coal, oil, and natural gas to replace them with follow-on plans without any of these multiple uses at all? By not handling the issue now, the Trump administration is essentially leaving a ticking time bomb for future federal courts to decide and future Congresses to misuse.
If Republicans do not use their trifecta now to ensure Trump plans as well as 123 outstanding plans become immune from being overturned in the future, they’ll hand Democrats a weapon that could be used against them and the multiple users of public lands they claim to support, such as ranchers, mining companies, oil and natural gas producers, and timber companies. The Trump administration has the opportunity to submit these outstanding plans formally to Congress and ensure they not only disarm Democrats, but also reduce potential chaos in the BLM land use planning process. They should also do so for all forest plans with multiple uses that are managed by the U.S. Forest Service, which are equally vulnerable.
Once these plans are formally submitted to Congress and the CRA’s 60-day clock runs out, a future Congress cannot use the CRA to overturn them. We’d be back to the relatively stable environment we had before the CRA was first used last year, i.e., current plans would be in effect with both land management agencies having the option to update any plan at any time. Agencies just need to get into their collective muscle memory the process of submitting updated plans formally to Congress as soon as the Records of Decision are signed so that they cannot be overturned in the future.
But one grenade has already gone off. Last month, environmental groups challenged all timber sales conducted under the Northwest Forest Plan in Oregon because the Bureau of Land Management (BLM) had never submitted the plan to Congress per the CRA. Their argument is a real stretch, especially since the plan has been in place longer than the statute of limitations. It’s unlikely that a judge will want to set a precedent that all public lands decisions made under a plan that has been in place for years—which includes conservation and other protective measures, not just timber—are suddenly null and void.
But who wants to take that risk? The impact on public lands management would be chaos.
Further, other environmental groups are making noise that they’re going to challenge more plans with other multiple uses. They may, for example, challenge all oil and natural gas leases and permits authorized by plans that have not been submitted to Congress.
The Trump BLM is caught between a rock and a hard place: if they submit the plans to Congress, they could appear to be admitting permits, leases, and other authorizations issued under any of the 123 existing plans are invalid. But let’s face it, the gun is already loaded: Congress used the CRA to overturn plans, thereby setting the precedent that RMPs are subject to the CRA. The current and potentially pending lawsuits are going to test the theory that any authorizations made under existing plans aren’t valid because they weren’t submitted to Congress. The chances of success to that novel theory are low, but it’s now a decision for the courts.
The worst outcome would be for the Trump administration to do nothing. Rather, they should move swiftly to notify Congress of all past plans per the CRA and undergo the full formal process for submitting new RMPs and RMP amendments. Doing so is not a tacit admission that previous authorizations are invalid: rather, it’s a sensible action to take now that Congress set a new precedent. Better to ensure a more stable future for land use plans than to leave the issue hanging. If they don’t, they’re handing Democrats a land mine that could go off against their new plans as well as any other multiple-use plan at some point in the future. Better to disarm your adversary, not hand them the weapon.
