The Bureau of Land Management's Infirm Compensatory Mitigation Policy

Abstract

Secretary of the Interior Ryan Zinke has described “compensatory mitigation” as “un-American” and “extortion.” In keeping with that view, on July 26, 2018, the Bureau of Land Management (“BLM”) adopted a radical new policy that disclaims statutory authority to impose compensatory mitigation measures.

Notwithstanding the aspersions the Secretary has cast, compensatory mitigation is a common-sense policy instrument that has been a mainstay of environmental and public lands policy for decades. It is a tool through which an agency authorizing private activities — drilling oil wells, filling wetlands — conditions its approval upon the implementation of measures to offset attendant environmental harms. Compensatory mitigation thereby permits economic activity to proceed while maintaining the health of public lands and the environment more generally.

This Essay examines the sparse legal analysis included in the BLM’s new policy and contends that it is illogical and unsupported by precedent. While policymakers may disagree about when and to what extent compensatory mitigation is appropriate, the BLM has entirely failed to justify its new and novel legal interpretation.

Keywords: compensatory mitigation, public lands, natural resources, administrative law, Department of the Interior