The federal government owns 640 million acres of American land—a fourth of the total acreage of the entire nation. More than half of all land west of the Mississippi River is controlled by the federal government. That land is controlled by players in Washington, D.C., yet it is far removed from the national capital. All the same, in western states like Wyoming, it is common to see vast swaths of a state’s territory controlled by agencies such as the Bureau of Land Management (BLM).
The BLM oversees permitting of various activities on federal lands, and it must ensure that public lands are used according to the “multiple use mandate,” as required by Congress. That is, the BLM must ensure that federal land can be used for things such as recreation, ranching and farming, mineral and energy production, and so on. It cannot just lock up land for so-called “conservation”, which in the BLM’s eyes increasingly means prohibiting the public from using public lands for any reason.
New and Harmful Rules
Under President Joe Biden, the BLM and political appointees at the Department of the Interior have repeatedly chosen to defy or ignore the multiple use mandate. Recently, the BLM proposed new rules which would especially affect the national oil and gas leasing and production system. Among other things, the proposal seeks to increase the number of opportunities that other federal agencies (like the Fish and Wildlife Service) and even non-governmental special interest groups hostile to oil and gas production have to veto any oil and gas activities, and thus restrict the amount of land available for oil and gas leasing and development.
Put simply, the BLM is trying to do indirectly what Congress will not let it do directly: end all oil and gas leasing and development on federal lands.
The proposed changes are an attempt to make an end-run around Congress. By delegating the ability to review oil and gas leases to other agencies and special interest groups, the BLM is intentionally subverting its statutory responsibility. Should the rules go forward, and other agencies or groups are permitted to veto oil and gas leases, the BLM will merely shrug its shoulders as if to say, “Sorry, our hands are tied.”
Congress has mandated the opposite—only the BLM may approve or reject leases under the law. Diverting that responsibility to construct additional barriers to oil and gas is unlawful.
The changes, if allowed to go into effect, would expand the scope of the federal regulators’ discretion to issue and regulate leases for energy producers. The BLM’s proposal would exceed the authority Congress granted the BLM, and threaten to further violate existing property and contract rights of leaseholders.
In addition to this “sub-delegation” proposal, the BLM is proposing to assume additional authority to withhold leases and regulate development according to several ambiguous and potentially capricious measures. By introducing vague and subjective considerations into the leasing system, the BLM’s authority would be ripe for abuse. And that seems to be the point. The new rules are nothing more than a thinly-veiled effort to harass, shrink, and eventually eliminate domestic oil and gas development.
Mountain States in Action
Mountain States has filed an official comment objecting to the BLM’s proposed rules on behalf of itself and the Independent Petroleum Association of New Mexico (IPANM), an organization with over 350 members who support the return of a responsible, balanced, and robust federal leasing program, while also ensuring the continued safe extraction of the abundant natural resources on federal lands. That is a mission we here at Mountain States support, and we are glad that IPANM joined us.
Our objections focus on the erroneous legal logic of the BLM, highlighting how the agency’s rules would violate a host of laws, lead to capricious regulatory action, and ignore the separation of powers at the core of the US Constitution.
No bureaucracy under the executive branch has the inherent authority to assume powers Congress did not specifically grant—that includes violating the property and contract rights of energy producers.
The Long Fight
The BLM’s proposals are just the latest salvo in a long-running assault by the Biden Administration on American energy. In a time when energy (such as gasoline) is already expensive, and the federal government is forced to practically beg Venezuela and other OPEC members to produce more oil, the BLM’s proposed changes defy common sense.
Now, the BLM is compelled to review and consider our objections, and respond to them for any version of a “Final Rule” that would have legal effect. Our intention with the comment is to compel the BLM to return to the chalkboard, and instead construct a rule that is constitutional, lawful, and consistent with the rights of American entrepreneurs.
