The good, the bad, and the time bomb
As President Joe Biden reaches the halfway point of his first term, the Center for Western Priorities is taking stock of his track record on public lands. As we did last year, this is a progress report, rather than a report card, since much of the president’s environmental agenda is incomplete. However, at this point in his term, the clock is ticking.
While President Biden has much to be proud of, particularly with regard to renewable energy, his record on land protection lags behind what President Barack Obama and even President Donald Trump had accomplished with help from Congress at a similar point in their first terms. Many of President Biden’s conservation goals remain unmet at this point. Furthermore, while the Inflation Reduction Act is a landmark law to address the climate crisis, it also creates a massive risk if the provisions governing oil and gas leasing are not implemented properly, with strong protections for public lands.
Although the president has made historic progress towards combating climate change and clearing the path for an energy transition, the Biden administration must dramatically accelerate its land protection and rulemaking efforts if the president hopes to campaign on or leave a lasting legacy on America’s public lands in 2024.
First steps toward 30×30
President Biden’s biggest accomplishment on public lands so far came in October, when he designated his first new national monument, Colorado’s Camp Hale-Continental Divide. The 50,000-acre monument honors history and nature in equal parts, permanently protecting the training ground and landscape that housed the legendary 10th Mountain Division during World War II and laid the groundwork for the modern snow sports industry.
Unlike President Biden’s previous use of the Antiquities Act to restore national monuments in Utah that were designated by presidents Obama and Clinton and then shrunk by President Trump, Camp Hale-Continental Divide marked President Biden’s first major new land protection effort. It was also the first significant step toward reaching his “30×30” goal of protecting 30 percent of America’s lands and waters by the end of the decade, which the president laid out in his America the Beautiful plan in early 2021.
In December, the president signed the National Defense Authorization Act (NDAA) for 2023, which designated 183,000 acres of wilderness and 163,000 acres of new national conservation areas in Nevada. The NDAA was the only bill with significant land protection measures that made it to President Biden’s desk during his first two years in office. Given the new House majority in 2023, it’s now clear that the path to reaching 30×30 runs through the Oval Office, not the Capitol.
Overhauling a rigged system
In August, President Biden signed the Inflation Reduction Act (IRA), a landmark bill that authorized nearly $400 billion in spending on climate change and clean energy. Among the provisions in the IRA was a significant overhaul of the way public lands are leased to oil and gas companies — a system that had been largely untouched for decades and gave drillers a sweetheart deal on publicly-owned resources.
The Inflation Reduction Act addressed four major shortcomings of the system: It eliminated the option that let oil and gas companies anonymously nominate lands for leasing and requires drillers to pay $5 an acre when they nominate lands; it raised the minimum bids for leasing onshore acres from $2 to $10 per acre and eliminated non-competitive leasing that allowed companies to lock up land for $1.50 an acre; it raised the rental rates and royalty rates companies pay once lands have been leased; and it added a royalty on all methane gas that is extracted from public lands, even if the methane is vented or flared.
While the oil and gas provisions of the IRA were not perfect — it locked in future oil and gas leasing for a decade — the bill’s passage marked a turning point for America’s public lands. The new law, once it’s fully implemented, will make long-overdue changes to a system that had been rigged in favor of the oil industry.
Jump-starting the energy transition
President Biden has made renewable energy a priority across his administration, aiming to reduce America’s greenhouse gas emissions by 50 percent from 2005 levels. Offshore, the Interior Department held record-breaking lease sales for wind energy, bringing in more than $4 billion off the coast of New York and New Jersey, and more than $750 million off the California coast.
Onshore, the Interior Department says it is on track to approve 48 renewable energy projects, totaling 32 gigawatts of electricity by the end of the 2025 fiscal year, which would exceed the president’s goal of 25 gigawatts in that timeframe. In December, the Interior Department also launched an initiative to update priority zones for solar energy projects, a process that should lay the groundwork for even more renewable energy development past 2025.
These green energy successes show that when President Biden makes administrative action a priority, his team can move quickly on public lands.
Other notable success stories
The Biden administration wasted no time in starting to implement the Infrastructure Investment and Jobs Act (IIJA, also known as the Bipartisan Infrastructure Framework), which Congress passed in 2021. On public lands, the Infrastructure Act provides funding for cleaning up orphaned wells and abandoned mines. Of the $4.7 billion included in the law for orphan wells, $250 million is set aside for capping wells on national public lands, and $150 million will go toward capping wells on Tribal lands. The Infrastructure Act also provided significant funding for wildfire mitigation and risk reduction efforts, for removing culverts that prevent fish migration, and for building wildlife crossings across American highways.
On the administrative front, the Biden team is making significant progress toward finalizing rules that would reduce methane leaks from oil and gas drilling on public lands and ban waste disposal in Alaska’s Bristol Bay, which would effectively end plans for a gold mine that would threaten the bay and its wild salmon population. It also canceled leases that would have allowed a copper-nickel mine near Minnesota’s Boundary Waters Canoe Area in the Superior National Forest. Along with President Biden’s proclamation establishing Camp Hale-Continental Divide National Monument, his administration started the process of protecting 225,000 acres of Colorado’s Thompson Divide through a 20-year mineral leasing withdrawal.
America’s first Indigenous cabinet member, Interior Secretary Deb Haaland, has made engaging with Tribal nations a priority, which led to a long-overdue commitment across the agency to increase Tribal co-management and stewardship opportunities. The Interior Department also removed a racial slur from more than 600 geographic features across the country. While that renaming effort was focused on a single slur, the Interior Department is continuing to address other derogatory terms on a case-by-case basis.
Under President Biden, the National Park Service is telling a more complete story of America’s history, creating new park units at Amache National Historic Site, a Colorado internment camp that unjustly incarcerated Japanese Americans during World War II; the Blackwell School, a segregated school for Hispanic children in Marfa, Texas; and the New Philadelphia National Historic Site in Illinois, honoring the history of early 19th century Black pioneers.
Finally, the Bureau of Land Management took steps toward protecting habitat connectivity on public lands, instructing state offices to assess and then prioritize management actions that help fish and wildlife migrate between and across seasonal habitat areas. However, this new policy, like the current implementation of oil and gas leasing reforms, was implemented via Instruction Memorandum, rather than a more durable rulemaking, which means it could be easily reversed by a future administration that does not share the Biden administration’s environmental goals.
A rush to lease more land
Last summer, the Biden administration held its first onshore oil and gas lease sale, offering around 130,000 acres of public land, mostly in Wyoming. Despite the fact that the administration offered 80 percent fewer acres than originally planned, oil and gas companies only purchased leases on about 60 percent of the acres offered. Then in December, the Interior Department offered leases off the coast of Alaska for the first time in five years, as ordered by the Inflation Reduction Act. That sale was a complete flop, garnering just a single bid for drilling rights.
Despite the lack of interest in these lease sales, the Interior Department is rushing to offer up hundreds of thousands more acres of public land in 2023. As of January 2023, the Biden administration has announced plans to lease 490,000 acres of public land across the West. 60 percent of those acres were nominated anonymously (and for free), a practice which is no longer allowed under the Inflation Reduction Act.
The timeline for these lease sales is being driven by a compromise in the Inflation Reduction Act. In order for Interior to issue final rights-of-way for wind and solar projects, it must have held an oil and gas lease sale within the previous 120 days and have offered oil and gas leases on 50 percent of the acres nominated by industry (or two million acres, whichever is less) during the previous 12 months. This clause created a contradiction for the one year following the IRA’s passage: If Interior held lease sales in that first year, it could end up offering leases on public land parcels that were nominated anonymously, a practice that the new law attempted to end.
In order to finalize renewable energy rights-of-way this spring, the department is rushing to hold oil lease sales in the second quarter, including more than 250,000 acres in Wyoming, with parcels that were almost entirely nominated under a leasing system that no longer exists. Under the IRA, the public has a right to know who is nominating public lands for leasing. The responsible and consistent way forward for the second quarter lease sale would be to require oil and gas companies to re-nominate lands under the provisions of the IRA, and remove any parcels that were nominated anonymously.
In November 2022, the Bureau of Land Management released seven Instruction Memoranda (IMs) laying out how it would implement the Inflation Reduction Act. These IMs do not carry the full legal force of an agency rulemaking, but they are a responsible and consistent implementation of the goals of the IRA. In particular, the IMs spell out how the Interior Department will identify lands that are eligible for leasing and choose which nominated parcels to include in lease sales. Those criteria for evaluating land are especially important — they give preference to parcels that are close to existing oil and gas development and steer leasing away from important wildlife habitats and connectivity areas, while also avoiding historic properties, sacred sites, and recreational areas. These guidelines reinforce the Interior Department’s long-standing discretion to select which lands are available for leasing and whether to ultimately issue leases after a sale.
Unfortunately, by the time those Instruction Memoranda were issued, the Interior Department had already begun preparing for a lease sale of 251,000 acres in Wyoming. The draft environmental review of the proposed lease sale, which was released shortly after the Instruction Memoranda went into effect, acknowledges that the proposed sale—at its full size—is inconsistent with Interior’s new guidelines for leasing. The review notes that if Interior took the new instructions into account, the lease sale would shrink to 171,000 acres — but even then the agency would be leasing acres that had been nominated anonymously and for free, which is contrary to the intent of the Inflation Reduction Act.
The Bureau of Land Management is facing a near-impossible task with the upcoming lease sales. The agency was eviscerated under the Trump administration when acting director William Perry Pendley and Interior Secretary David Bernhardt moved BLM headquarters from Washington, DC to Grand Junction, Colorado. The foreseeable “brain drain” that followed left BLM with a lack of expertise and institutional knowledge among the career employees who would have been central to implementing the IRA.
For all of these reasons, the Interior department should quickly change course on its 2023 lease sales. It must ensure all leasing is consistent with its implementation of the Inflation Reduction Act and publish a draft rule finalizing its reforms to the oil and gas leasing system.
30×30: Promises made, promises delayed
When President Biden announced his America the Beautiful initiative shortly after taking office, he showed that America was willing to act as a world leader toward protecting 30 percent of the planet’s lands and waters by the end of the decade, a goal known as “30×30.” Beyond setting an ambitious but reachable goal for the nation, President Biden pledged to measure the country’s success by creating the American Conservation and Stewardship Atlas. But now, nearly two years after committing to 30×30, the president has made only small steps toward reaching his conservation goals, and the Atlas is missing in action.
It’s important to acknowledge that much of the Biden administration’s first year was spent reversing the damage of the Trump years. When President Biden restored Bears Ears and Grand Staircase-Escalante national monuments in 2021, he re-established two of President Obama’s and President Clinton’s biggest conservation achievements. While those restorations dug America out of the hole left by President Trump’s administrative attacks on public land, they did not advance conservation beyond where America stood in January 2017.
When President Biden invoked the Antiquities Act in October 2022 to create Camp Hale-Continental Divide National Monument, he took his first significant step toward 30×30, adding 50,000 acres toward the goal. But with only 13 percent of American lands currently protected, it will take much bolder action — and much larger designations — to reach 30 percent within the next seven years.
In November, President Biden pledged to protect Avi Kwa Ame, a tribally-led proposal to conserve nearly 450,000 acres of spiritually and ecologically significant land in southern Nevada. But more than two months later, the White House has gone silent on when President Biden will make good on his promise. Avi Kwa Ame remains unprotected and in limbo today.
Similarly, a community-led effort in Texas to protect Castner Range, 7,000 acres of Department of Defense land currently closed to the public, has been waiting for word from the White House on an Antiquities Act proclamation. President Biden visited El Paso earlier this month but did not acknowledge the monument proposal or indicate when he might protect the range.
Millions more acres across America are in need of similar protections, whether through the Antiquities Act, Congress, or other administrative action. Our Road to 30: Postcards multimedia series profiles just a handful of the areas where the president could choose to listen to, and work with, local communities to make real progress toward the 30×30 goal. The Center for Western Priorities’ Languishing Lands report highlights public lands legislation that is stalled in Congress and is ripe for executive action.
Measuring progress across federal, state, local, and private land is the reason President Biden committed to creating the Conservation Atlas two years ago. The Interior Department held a series of listening sessions in early 2022 and pledged to release a draft version of the Atlas by the end of the year. But now, much like the president’s promise to protect Avi Kwa Ame, the Atlas remains in limbo, with no timeline for when it might get published.
In order for the 30×30 goal to last beyond the Biden administration, the president must leave a yard stick that future presidents can use to measure their conservation progress. The administration will never reach universal agreement about the definition of “conservation.” There will always be different levels of land protection, from Congressionally-designated wilderness to voluntary conservation easements on private working lands. The Atlas should not seek to be the one and only way to measure conservation success. But that is why it is vitally important that the Biden administration release the first version of the Atlas as quickly as possible and encourage its use as a baseline for documenting land protection in all its forms across the country.
What about Alaska?
Two of the highest-profile delays in land management policy are playing out in Alaska, where the Biden administration has indicated it will restore Clinton-era protections for 9 million acres of the Tongass National Forest and end logging of old-growth trees in one of America’s largest carbon sinks. The reversal of the Trump decision that exempted the Tongass from the so-called “roadless rule” has been in the works since at least July 2021, but the Forest Service has still not finalized the protections 18 months later.
[Update 1/25: Shortly after this report was published, the Biden administration finalized its protections for the Tongass.]
Similarly, the administration has not indicated whether or not it will allow the massive Willow oil development project on Alaska’s North Slope. Willow has been called a “carbon bomb” for good reason — it’s projected to produce 287 million metric tons of carbon dioxide over the next 30 years. Beyond that, ConocoPhillips has told investors Willow would be its “next great Alaska hub” as it eyes the equivalent of another 3 billion barrels of oil in the surrounding area.
It’s already clear that the risks of developing in the rapidly-warming Arctic have not been thoroughly evaluated. In March 2022, a nearby ConocoPhillips drilling site suffered a massive methane gas release from a previously undetected gas zone. The company admits that thawing permafrost played a role in the severity of the leak. But in the Trump-era analysis of the Willow project, the Bureau of Land Management dismissed concerns over this exact risk, claiming gas leaks were “very unlikely” and “no cause for concern.”
Despite the obvious risks Willow poses to President’s Biden’s climate goals, his administration has still not indicated whether it will allow the project to proceed.
Rulemakings: A ticking time bomb
While the Inflation Reduction Act was a long-overdue victory for American taxpayers — fixing an oil and gas leasing system that had been rigged by the oil industry for the last century — implementing the law in a way that provides durable safeguards will require an extensive rulemaking process, and the administration is rapidly running out of time to lock in those reforms.
As we noted earlier, the IRA is currently being implemented via Instruction Memoranda (IMs) that spell out which lands are available for leasing and how the Bureau of Land Management will select parcels to put up for auction. The problem is that the IMs, while well written, are only guidance provided by agency leadership. They can be revoked or revised at any point by a future administration. So while the Interior Department is taking steps toward responsible leasing in the future, that guidance would likely not carry over to a new administration.
Former Interior Secretary David Bernhardt, for example, made numerous decisions that directly benefited his former clients, from oil and gas companies to water districts. If a similar secretary returns to run Interior, it’s a safe bet that the oil industry would quickly rewrite the IRA’s implementation guidelines to prioritize oil and gas leasing whenever, wherever companies want to drill, regardless of risks to wildlife, cultural sites, or public access.
The way to protect against this risk is with a rulemaking under the Administrative Procedures Act. Rules published in the Federal Register go through an extensive review and public comment process and carry the force of law. They can only be revoked or revised by a future administration if it goes through the same rulemaking process — and even then they can be thrown out by the courts if an attempt to change a rule is arbitrary or capricious. Many of the Trump administration’s attempts to undermine America’s bedrock environmental laws were blocked because the administration did not accurately follow the rulemaking process.
In addition to implementing the IRA, the Biden administration can also use the rulemaking process to correct a final pillar of oil and gas reform that was removed from the bill by the Senate parliamentarian: bonding reform. The deficiencies of the Interior Department’s current bonding requirements have been well documented by the Government Accountability Office and the Biden administration itself. The GAO and the Interior Department’s 2021 report to President Biden recommended the Bureau of Land Management adjust bond levels so oil and gas companies must post bonds large enough to ensure they clean up after themselves before being allowed to drill on public lands.
But there is no sign of a proposed rule for implementing the IRA or bonding reform. The Biden administration’s fall 2022 regulatory agenda shows placeholders for both bonding and oil and gas leasing at the “proposed rule stage,” and draft rules have not been published in the Federal Register.
Counting down the days
At this point, the Biden administration realistically has two or three months left to publish any draft rules it hopes to finalize and lock in by the end of President Biden’s first term, because the Congressional Review Act (CRA) casts a shadow over any rules published in the last seven or eight months of an administration.
The CRA gives Congress and the president the ability to overturn any major administrative action (most often a rulemaking) within 60 legislative days of that action being published in the Federal Register. In practice, this means the CRA only comes into play at the beginning of a new administration, as it did several times early in the Trump administration. In 2017, Congress and President Trump used the CRA to erase a number of important Interior Department rules published late in President Obama’s second term, including the BLM “Planning 2.0” rule that would have required the agency to include public participation early in its land use planning process.
The CRA is an exceptionally blunt instrument. Once it’s used, an agency cannot write a substantially similar rule, tying the hands of future administrations from both parties. Given the history of how the CRA has been used to roll back environmental safeguards, the Biden administration must treat it as an existential threat to any rules from the Interior Department or Environmental Protection Agency that are published in the second, third, or fourth quarters of 2024.
Because the CRA deadline is based on the legislative calendar, the actual cutoff date for a rule to be subject to repeal by a new Congress is a moving target, and the final date is not known until the outgoing Congress adjourns. For the Biden administration, this means the only way to be sure a final rule is safe from the CRA is to publish it by April of 2024.
The federal rulemaking process is, by design, lengthy. In order for an agency to publish a draft rule, it must first be reviewed by the White House Office of Management and Budget (OMB), which can take months. Then after the proposed rule is published, the agency must hold a public comment period of at least 60 days and respond to all substantive feedback on the rule. Then the revised rule is sent back to OMB, which undertakes a second review process, including meeting with any interested stakeholders. Only then can a final rule be published in the Federal Register and go into effect.
Realistically, it takes at least a year for any major rule to go from the draft stage to being finalized. That means if the Biden administration hopes to lock in reforms to the oil and gas leasing system and protect them from repeal under the CRA, it must publish those draft rules by this March or April at the latest.
The Interior Department, of course, is not the only cabinet department with a long to-do list heading into the second half of President Biden’s first term. It is likely that the Office of Management and Budget will become a bottleneck in the coming months, as the understaffed agency deals with a backlog of rules that agencies hope to lock in before it’s too late.
It’s not an understatement to say that the rulemaking process, and OMB in particular, poses the greatest threat to President Biden’s climate agenda over the next two years. Unless the Interior Department quickly publishes draft rules on implementing the IRA and bonding reform, those rules will undoubtedly land at the top of an oil industry “hit list” if an industry-friendly administration takes office in 2025.
How President Biden stacks up so far
President Biden has said that in his first year in office, he “protected more lands and waters than any American President since John Kennedy.” This is only accurate if you count his restoration of Bears Ears and Grand Staircase-Escalante national monuments, which had already been protected by previous presidents. In terms of new acres with durable land protections, President Biden’s total after two years stands at less than 400,000 acres — the 50,000 acres protected by Camp Hale-Continental Divide National Monument, and 346,000 acres of new wilderness and national conservation areas in Nevada that were designated when he signed the 2023 National Defense Authorization Act.
Those protections are certainly worthy of praise, but when you look at newly protected acres, President Biden is lagging significantly behind President Obama and even President Trump at similar points in their presidencies.
In the first three months of President Obama’s first term, he signed the 2009 omnibus public lands bill, a massive legislative package that designated two million acres of wilderness, protected 620,000 acres across four new national conservation areas, and created one new national monument. The 2009 bill also designated three new National Park Service units, six national scenic trails, and thousands of miles of America’s wild and scenic rivers.
In March 2019, just past the halfway point of President Trump’s first term, he signed the Dingell Conservation, Management, and Recreation Act, the first major public lands bill to pass Congress in a decade. The Dingell Act passed the Senate and House with strong bipartisan support, protecting 1.3 million acres of new wilderness, establishing a national monument and national conservation area in Utah, expanding Death Valley and Joshua Tree national parks, and adding 225 miles of wild and scenic rivers. The bill also permanently authorized the Land and Water Conservation Fund (LWCF), and made permanent the Every Kid in a Park program that provides free park passes to the family of every fourth grader in America.
As much as President Trump’s administrative legacy was one of unprecedented environmental harm and destruction, particularly his attempt to eviscerate Bears Ears and Grand Staircase-Escalante, Trump’s legislative record on public lands was remarkably strong, because public lands protections are a winning political issue for both parties. The same bipartisan coalition that passed the Dingell Act in 2019 would go on to pass the Great American Outdoors Act in 2020, as President Trump flip-flopped on permanently funding the LWCF at the urging of GOP senators Cory Gardner and Steve Daines. (Ironically, an attempt by Trump’s Interior Secretary David Bernhardt to give states veto power over LWCF acquisitions was quickly reversed by the Biden administration, because it wasn’t implemented with a rulemaking.)
Unfortunately, the current political climate makes it extremely unlikely, if not entirely impossible, that the new Congress will pass any public lands legislation on the scale of the 2009 omnibus bill or the Dingell Act. In 2009, President Obama was working with Democrats in control of the House and Senate, and the omnibus lands bill passed with strong support from both parties. In 2019, a Democratic House led by Speaker Nancy Pelosi passed the Dingell Act with bipartisan support, and the GOP-controlled Senate, with a push from Energy and Natural Resources Committee Chair Lisa Murkowski, easily overcame a small amount of Republican opposition to pass the bill by a veto-proof margin, ensuring President Trump’s signature.
Unleash the beast
The political reality of 2023 means that President Biden has almost no hope of working with the narrow GOP majority in the House to pass land protection bills. Speaker Kevin McCarthy, hanging on to control by the slimmest of margins, is beholden to the anti-conservation fringe of his party, including Rep. Paul Gosar of Arizona, Rep. Lauren Boebert of Colorado, and newly-elected extremists like Rep. Harriet Hageman of Wyoming who are determined to dispose of national public lands. Even if a bill designating new national monuments, national parks, or wilderness areas were to pass the Senate, the emboldened anti-public lands wing of the House GOP would block any such legislation from reaching the floor, knowing that if it came up for a vote, it would pass with the support of all Democrats and a large portion of Republicans who understand that protecting public lands is popular with voters across the political spectrum.
This means that if President Biden hopes to meet President Obama’s or even President Trump’s record of new land protections and designations, his only path forward is to dedicate himself to executive action for the next two years.
Last summer, as hope was fading for a comprehensive climate bill in Congress, Senator Sheldon Whitehouse of Rhode Island called on President Biden to unleash “executive beast mode” to address the climate crisis. Shortly after that, many of the climate provisions in the president’s Build Back Better plan made it into the Inflation Reduction Act, and the IRA, while not as ambitious as many climate advocates had hoped, was a landmark bill when it comes to climate policy.
But the IRA did not address the nature crisis, which is fully entwined with the climate crisis. With the world on the brink of a sixth mass extinction, the global community now recognizes that we must quickly protect lands and waters in order to avoid ecological collapse. At the COP15 biodiversity conference in Montreal last month, nearly 200 nations (minus the United States, which has not signed the Convention on Biological Diversity) agreed on a global 30×30 goal, catching up to the promise that President Biden made two years prior.
To highlight just one example: last July, Colombia announced it had already protected 30 percent of its oceans, and last week said it would not approve any new oil and gas exploration. Ironically, while the world is now turning quickly toward 30×30, America is moving at a glacial pace.
Unless President Biden commits to taking swift and significant executive action to protect millions more acres of American lands and waters over the next twelve months, he will find himself entering 2024 with a conservation record that is aspirational but with few concrete accomplishments to point to. America will be following, rather than leading the world, when it comes to addressing the nature crisis.
We are hopeful that the president and his team will recognize both the opportunities and the risks he faces on public lands in this pivotal year. To paraphrase Senator Whitehouse, it’s time to unleash executive beast mode for America’s public lands.
Featured image: Aaron Weiss