Compensatory Mitigation and Public Lands
67 Pages Posted: 22 Mar 2019 Last revised: 17 Apr 2020
Date Written: March 1, 2019
America’s public lands are as diverse as its people. They contain ten percent of the nation’s land and may represent economic opportunity to a miner, tradition to a rancher, a solemn moral obligation to a preservationist, and hallowed ground to a member of a Native American tribe. Recognizing this array of interests, Congress enacted the Federal Land Policy and Management Act of 1976 (FLPMA) to charge the Bureau of Land Management (BLM) with managing public lands for a multiplicity of uses and values.
Multiple use management involves difficult tradeoffs, because allowing one use, like oil drilling, will displace others, like recreation or wildlife habitat. Compensatory mitigation—the practice of requiring a land user to offset her environmental harms—provides an important mechanism for addressing conflicts, by enabling intensive development in designated areas, while conserving the ecological integrity of public lands as a whole.
Despite its potential, compensatory mitigation has come under fire as part of a renewed assault on environmental law. Historic contestation over environmental protection focused on instrument selection—how should we protect the environment—rather than on ultimate goal—whether we should protect the environment. The Trump Administration has changed the script by embracing a strict ideology of economic liberty that broadly deems environmental regulation an offensive burden to business. Consistent with this view, former Interior Secretary Ryan Zinke described compensatory mitigation as “un-American” and “extortion,” and the BLM disclaimed authority to require it, never mind that the agency had done so for decades.
This Article examines the history of public land law, the development of environmental mitigation policies across the federal government, and three interlocking provisions of FLPMA—the Multiple Use Mandate, the Land Use Planning Mandate, and the Anti-Degradation Mandate—to reveal that the BLM has ample authority to require compensatory mitigation. It then identifies considerations to determine whether and how to require resource users to offset their impacts. Compensatory mitigation is not a panacea for public land management, because some resources are simply irreplaceable, and others lie beyond current technology to restore. Yet compensatory mitigation, if designed well and deployed appropriately, allows economic development and environmental protection to coexist. Perhaps more importantly in this era of fraught and divisive political debate, the instrument provides an opportunity to forge consensus and compromise about how to manage public lands to serve society’s current needs while providing equal opportunities for generations to come.
Keywords: Public Lands, Administrative Law, Department of the Interior, Environmental Law, Natural Resources Law
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