Joe

BY DAVID BERNHARDT / REAL CLEAR ENERGY

Earlier this year, the Department of the Interior’s Bureau of Land Management (BLM) released its proposed Public Lands rule. The rule seeks new regulations to prioritize “the health and resilience of ecosystems” across the 10% of American land the bureau manages. It would do this by deeming “conservation” a specific “use” of these lands.

Unlike recent bipartisan conservation legislation, this new proposed rule would steamroll Congress’ constitutionally granted powers to determine the use of federal lands. Moreover, it could create a backdoor route restricting public recreation on these lands.

Among other items, the proposed rule seeks to invent what it terms “conservation leases.” These leases would grant an individual, company, or non-profit the right and obligation to restore or protect the ecosystem on public land rather than allowing the land to be used for activities such as fish and wildlife development and utilization — meaning the promotion of animal habitats — or outdoor recreation, which have been primary uses under the existing law for up to a decade. While the new regulation would not affect pre-existing authorized activities on the land, no future rights or leases would be issued that infringed on the objectives of a conservation lease for the duration of its term.

This bureaucratic scheme is built on sand; the executive branch has neither the constitutional power nor the explicit congressional authority to provide leases for landscape conservation. According to Article IV, section 3 of the Constitution, Congress has the exclusive power to “make all needful Rules and Regulations” concerning federal property, including public lands. Although Congress often tasks federal agencies and their leaders with developing these rules in practice, the administrative state does not enjoy a free hand to rewrite legislation on a whim.