The Public Lands Rule: Can Conservation Leasing Reduce the Impact of Energy and Mining?

The US Department of the Interior’s proposed Public Lands Rule has been widely hailed as a conservation victory. The rule aims to protect intact landscapes and restore degraded habitats on public lands by leasing land for conservation purposes in the same way that companies lease them for mining, grazing and energy development. The rule aims to “ensure healthy landscapes, abundant wildlife habitats, clean water, and balanced decision-making on our nation’s public lands,” and if passed, it would mark the biggest changes to public lands since the Federal Lands Policy Management Act of 1976.

The proposed rule comes at a time when developers of renewable energy and critical minerals have their sites on public lands to provide domestic resources for the decarbonisation materials and energy. Public lands are managed for “multiple use and sustainable yield” by the Bureau of Land Management (BLM). Overseeing 245 million acres of public land or about 11 percent of all U.S. land — plus another 700 million acres of underground minerals — the BLM is the nation’s largest landowner. Making balanced decisions about conservation and development of natural resources has traditionally been a challenge for BLM, stemming from its origins as the US General Land Office and the US Grazing Service. The agency has always lacked an organic law to give it an ultimate mission or resolve user conflicts, only the mandate enshrined in the Federal Lands Policy Management Act.

Numerous updates to the proposed rule will help the agency improve the integrity of the ecosystems they manage. Among them, the proposal could make it easier to nominate areas of critical environmental concern during land use planning. Given the vast landscape that would be affected by this, some wildlife and conservation groups are vocally supporting measures in the Public Lands Rule to strengthen land protection, praising the idea that conservation would be treated as “uses” much like oil and gas, livestock , mining and recreation. Others say the rule makes only minimal changes to address the ultimate causes of public land degradation and represents a missed opportunity to develop a coherent strategy to respond to natural resource development challenges, climate change and nature conservation. Missing from the discussion is a critical examination of how the rule aims to change how developers offset the effects of energy and mining development.

When project developers impact BLM countries, the agency’s compensatory mitigation process requires them to follow a mitigation hierarchy to avoid, minimize, or remediate impacts on local biodiversity; any on-site effects that are unavoidable must be compensated for. The Public Lands Rule codifies the use of conservation leasing to reduce the environmental impact of these types of projects. While there is in principle nothing wrong with acquiring and retaining land to offset negative effects on other land, the lease retention opportunities available under this rule will only be available on a fraction of the public lands . They also do not lead to conservation protection on private land, as most mitigations do, although sometimes the best habitat to reduce environmental impact is on private land.

In addition, the public lands available for conservation lease are to some extent already under conservation, as they are ultimately managed by BLM and not planned for future energy or mining development. While investing in restoration on conservation sites will certainly improve habitat quality on those plots, the best way to compensate for lost habitat is to add new protected habitat elsewhere.

Conservation leasing sounds like a victory for conservation. Let conservationists compete with extractive industries to lease and restore public lands? It makes a lot of sense. On closer inspection, the protected lands available for lease are more limited than the full inventory of public lands. For example, a conservation lease could not block an oil and gas lease. Climate activists couldn’t bid against oil and gas developers for a piece of land, as was the case when conservationist and author Terry Tempest Williams tried to lease 1,120 acres of public land in Utah to keep land out of fossil fuel production. (The BLM eventually denied the leases, arguing that the Mineral Leasing Act requires land for oil and gas to be developed on a reasonable timescale, and that Williams had publicly vowed to leave hydrocarbons in the ground under the leased property.) the Conservation Lands program or on other grounds identified through BLM district offices. In addition, energy and mining developers are likely to be the biggest benefactors of conservation leases as they seek a “reliable path for offsetting mitigation” for the impacts caused by their projects.

Compensatory mitigation is a type of compensation for biodiversity or conservation. For example, when oil and gas companies develop habitats for sage grouse, they must offset the impact by acquiring new habitats or investing in restoration, usually by protecting and managing or restoring private land. When a utility-scale solar park proposes to develop on Mojave desert tortoise habitat, compensatory mitigation may require the developer to acquire habitat to replace it. Sometimes companies need to protect more habitat than they disturb, creating several acres of new habitat for everyone to develop, depending on the species; in California, for example, five acres of mitigation land are required for every acre of developed San Joaquin kit fox habitat. To date, only a few mitigations have occurred on public lands in the way the conservation plan is proposed. The Ivanpah Solar Electric Generating Station was built on public lands in California, and the compensatory habitat impact mitigation was to buy out the grazing allotments on nearby public lands.

As with carbon offset programs, biodiversity offsets are fraught with problems that undermine their effectiveness in achieving stated ambitions. One goal is that compensatory mitigation results in “no net loss” of habitat. But biodiversity offsets face the same challenges as offsets: are the benefits real, additional, and permanent? With the Ivanpah example, the benefit of grazing restrictions to landscape health was undermined by the fact that the habitat of the mitigating land was inferior to the desert tortoise, compared to what had been developed. So these mitigations were not real or had no impact because they did not replace the habitat they disturbed.

In another case, a mitigation for a utility-scale solar project in Panoche Valley looked good on paper, with a mitigation rate of 10 acres on each developed project. But not only did the lands fail to support the endangered habitat of the San Joaquin kit fox that the project would disrupt, the BLM was already in talks to purchase the land ahead of the proposed development. If the country wasn’t under development pressure, it’s hard to call these mitigations, in offset parlance Additionally.

Finally, offsets should be permanent. The Public Lands Rule sets a 10-year limit on conservation leases. The proposed rental duration does not correspond to the time required to carry out an ecological restoration and monitor the results of a project in dry ecosystems, which can be difficult and has no guarantee of success. There are also some curious aspects of this policy, such as the possibility that conservation leasing could be used in tradable carbon market compensation schemes, which have been disastrous in other areas of energy and climate policy.

Compensatory measures using public lands to offset development impacts on public lands had already been codified in California under the Desert Renewable Energy Conservation Plan. A memorandum of understanding with the California Department of Fish and Wildlife allows solar developers to use public lands for compensatory mitigation activities such as restoration and habitat enhancement on BLM’s National Conservation Lands. The National Conservation Lands system consists of 900 units and covers 35 million acres of BLM property. These landscapes represent a small portion of the federal lands administered by the BLM. This limited scope means that the proposed rule misses important opportunities to acquire and restore habitat on private lands.

Public lands protect significant biodiversity, provide habitat for endangered species and support important ecosystem services, including carbon sequestration, in the western United States. A better plan to balance conservation and energy development would be not to develop important habitat in the first place. Our research with the Nature Conservancy found that mitigation can be avoided and environmental assessments avoided entirely by placing utility-scale solar projects on suitable or compatible landscapes. According to Argonne National Labs, “Good project locations, on-site preparation practices, and on-site best management practices can prevent many impacts (thus eliminating the need for CM [compensatory mitigations] and associated costs). Where compensatory mitigation measures are required, they should not lead to a net loss of affected habitats.

Public lands play a crucial role in energy development and climate policy. The Department of the Interior’s oil and gas leasing programs on federal lands and waters supply 24 percent of U.S. oil production and 11 percent of natural gas. For centuries, public lands have been a source of fossil fuels and hard rock mining, and are now being mobilized for climate action for the development of renewable energy, transmission corridors, critical mineral extraction, and carbon sequestration and capture sites. Conservation leasing offers an opportunity to streamline the development of renewable energy and transmission by clarifying how to mitigate impact. But it is reasonable to be skeptical about the benefits of using conservation leases on public lands to offset the development of other public lands. Instead, an offsetting mitigation policy for the effects of energy development should ensure there is “no net loss” and protect new landscapes, including private lands where there is little protection today.

Editor’s Note: Public responses to the Public Lands Rule are expected on July 5. For more information see: https://www.blm.gov/public-lands-rule