Energy dominance tactic could derail federal permitting

Congressional Republicans are a presidential signature away from erasing Biden-era restrictions on Powder River Basin coal development. 

But legal experts warn the tactic could derail the Bureau of Land Management’s entire authority to manage grazing, energy development and recreation throughout the United States, according to environmental advocates.

The risk came up on Nov. 19 during a Senate Committee on Energy and Natural Resources hearing, where Sen. Steve Daines, R-Montana, said using the Congressional Review Act to reject the BLM Miles City Field Office resource management plan, or RMP, was justified because the Biden administration had ignored the opinions of state leaders who supported coal mining on federal land.

“The Biden BLM’s land use planning process was weaponized to push radical, anti-energy policies in states like Montana, Wyoming, North Dakota, and Alaska, despite significant opposition from the states,” Daines said during the hearing. “Thankfully, Congress acted and passed my bill to repeal the anti-coal Miles City Resource Management Plan Amendment and I look forward to President Trump signing it into law very soon.”

In the same hearing, however, Sen. Martin Heinrich, D-New Mexico, warned the move could have massive unintended consequences.

“You could literally see every permit — outdoor recreation, oil and gas, grazing — called into question because of some of these CRA activities,” Heinrich said. His comments echoed the analysis of 30 law experts who had warned Congress the move could backfire.

The Miles City RMP excluded 1.7 million acres of BLM land in Montana from coal leasing. Wyoming’s Buffalo RMP similarly closed 481,000 acres of federal coal land from leasing, quarantining an estimated 48 billion tons of coal. In Greater Yellowstone, similar RMPs oversee about 30,000 acres of BLM Montana land between Billings and Dillon, and about 700,000 Wyoming acres around Cody, Lander, Pinedale and Kemmerer.

On October 8, Daines published a stack of positive responses to the revocation of the Miles City RMP. They included praise from Montana Governor Greg Gianforte and Colstrip Mayor John Williams. Gianforte said the RMP removal was part of the “new era of American energy dominance … after four years of Joe Biden’s attacks on Montana coal.”

Navajo Transitional Energy CEO Vern Lund said the move would “help safeguard Montana’s economic backbone for generations.” A week later, federal Interior Department officials rejected a Navajo Transitional Energy bid for 167 million tons of Montana BLM coal that amounted to $186,000 — less than a penny per ton. A similar 2013 coal auction for the same amount in Powder River Basin drew a bid of $35 million, and was also rejected at the time for being too low.

In comments to Daines, National Mining Association President Rich Nolan pointed out a factor of using the Congressional Review Act which he considered a good thing: Agency actions struck down by the law “may not be reissued in substantially the same form.” In Nolan’s reading, that means the Biden administration’s coal leasing moratorium could not be reimposed by some future president. George Harris of the Montana Coal Council added that rescinding the Miles City RMP would return coal leasing to the 2015 plan, which was more favorable to energy development.

In 2018, however, that older plan was invalidated in federal court because of failures to balance energy development with other multiple-use requirements. So there may not be a previous plan to reactivate. Even if there was, it may now be unusable in the opinion of 30 law professors who cosigned a letter to congressional leaders warning that any new agency plans would have to be specifically authorized by Congress to avoid a similar fate.

“If Congress were to disapprove even one RMP, every other unsubmitted RMP or management plan developed for federal lands and waters could be called into question, to great destabilizing effect,” the letter warned. “For example, because the BLM must have a valid RMP in place to authorize activities on public lands, including mineral leasing and development, forest management, timber sales, livestock grazing, rights of way for energy generation and transmission, and motorized recreation, congressional action now could call into question any permits, authorizations, contracts, rights of way, or licenses issued pursuant to an unsubmitted plan.”

The outcome, according to the letter, would be “an endless cycle of litigation, effectively freezing the ability of the BLM and other agencies to manage public lands for years, if not decades to come.”

The signers included University of Montana Land Use and Natural Resources Clinic Director Sandra Zellmer, along with scholars at the University of Colorado, University of Utah, Rutgers and Georgetown University.“That could mean if an RMP from a field office is overturned, that field office may not be able to create one ever again unless Congress backs it up,” Aubrey Bertram, Wild Montana’s federal policy director, told Mountain Journal on November 19. “As of this morning , six BLM offices had their plans rescinded. That sets up a system for any RMP since 1996 [when BLM started using them] — all of those are invalid because they haven’t been submitted to Congress. That’s huge.”