November 12, 2008

Stroke of a Pen: An Executive Order Protecting Public Lands

This past week, many national newspapers picked up the story from Utah, where the Bureau of Land Management (BLM) just approved a spate of resource management plans that clear the way for a massive oil/gas lease sale next month. Some of the tens of thousands of acres slated for leasing are near the boundaries of national parks, such as Arches and Canyonlands. Many more are on lands with wilderness characteristics.


This last burst of enthusiasm for fossil fuel leasing is no rogue act. It is a direct result of the instructions for public land administration that George W. Bush issued through Executive Orders early in his administration. If the Obama administration disapproves of decisions like the ones in Utah last week, then it needs to exert its leadership through Executive Orders. The first task will be to revoke the Bush Executive Orders, which push resource managers to promote oil/gas development on public lands first and foremost. But, CPR’s newest report, Protecting Public Health and the Environment by the Stroke of a Presidential Pen, recommends more than a mere revocation. The Obama Administration should articulate an alternative principle for prioritizing management of public lands: ecological integrity.


Before explaining why CPR is encouraging the next President to issue an Executive Order promoting ecological integrity and public participation in federal land management, I think it is worthwhile first to explain why the Obama Administration should issue an Executive Order dealing with public lands at all.


The U.S. Constitution clearly delegates to Congress the power “to dispose of and make all needful Rules and Regulations respecting . . . Property belonging to the United States” (Art. IV, sec. 3, cl. 2). Nonetheless, the president has tremendous influence over the direction of public land management, probably more than he does over pollution control policy. There are two reasons for this: tradition and legislation that grants broad proprietary discretion. Since at least the time of Jefferson’s purchase of the Louisiana Territory, Presidents have stretched their executive authority to lead the way on public land administration. From federal acquisition policy to habitat protection, presidents established a seldom-questioned tradition of acting first and then inviting Congress to follow with legislative endorsement. Theodore Roosevelt famously established the first national wildlife refuge without express statutory authorization. His only concern was that no legislation prohibited his conservation action. In 1915 the Supreme Court upheld executive authority to withdraw oil-rich deposits from the reach of the mining law, which, at the time, allowed miners to claim them upon discovery. President George W. Bush followed this tradition when he essentially made fossil fuel development the preferred use of public lands through a pair of Executive Orders.


Even if history had not laid the groundwork for presidential influence over public land policy, current legislation grants executive agencies tremendous discretion in implementing broad principles, such as “multiple-use, sustained yield” management. President George W. Bush employed this prerogative and the most recent result is the group of land management plans that would substantially increase oil/gas leasing on scenic, roadless areas of Utah, including land adjacent to Arches National Park. President Obama would instruct agencies to act within the latitude provided by Congress if he were to order them to comply with the broad terms of statutory standards in a manner that maintains and restores ecological integrity.


Why is ecological integrity important? Ecological integrity is a broad, but objective, concept that describes the characteristics of a place relatively unimpaired by human activity. Ecological integrity includes the entire complement of parts (including species, genetic resources and groups of animals/plants) and processes (including nutrient cycling, evolutionary dynamics, and energy exchanges) that sustain the goods and services humans derive from public lands. A national public land management policy that promoted ecological integrity would recognize that both good stewardship of resources for future generations and practical optimization of land and water functions requires as healthy an ecological foundation as possible. The more specific statutory objectives all recognize some version of the stewardship principle, but without strong presidential leadership resource managers have difficulty resisting constant calls for over-use and expanded development. Requiring land managers to protect ecological integrity first, before allocating resources for other uses, fulfills the trust responsibility of the federal government to pass along to the next generation a public estate in a better (or, at least, no worse) condition that we find it today.


Managing with a lodestone of ecological integrity would increase cross-boundary cooperation. Increasingly, scientists report that networks of lands and waters best sustain nature’s infrastructure. Managing for ecological integrity would improve links among components of watersheds, migration paths, and habitats. Adaptive management, a form of learning-by-doing, would be a key component in any implementation plan for improving ecological integrity.


The other key component of CPR’s recommended Executive Order is to broaden public participation in public land administration. The George W. Bush Administration selected only certain stakeholders to contribute to discussions over resource management policy. The Obama Administration should open up the process to learn from a wider variety of public land stakeholders. Federal lands should promote public support of conservation. They can best play this role by involving those inclined toward wildlife-dependent recreation, including anglers, hunters, birders, wildlife photographers, and the millions of Americans who seek reflection, education, and refreshment by connecting to the natural world protected by federal ownership.

Robert Fischman, CPR Member Scholar; Professor of Law, Indiana University School of Law, Bloomington, Indiana. Bio.