The Bureau of Land Management\u27s Infirm Compensatory Mitigation Policy

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

Deconstructing Disaster

Over time, we have grown increasingly vulnerable to natural disasters. Each decade, economic losses from such disasters more than double as people continue to build homes, businesses, and other physical infrastructure in hazardous places. Yet public policy has thus far failed to address the unique problems posed by natural disasters. This Article takes a first step toward improving public policy by offering a paradigm for understanding its failures, suggesting that three categories of obstacles obstruct sensible government regulation. Drawing from philosophy, cognitive psychology, history, anthropology, and political science, this Article identifies and analyzes three categories of obstacles to disaster policy-symbolic obstacles, cognitive obstacles, and structural obstacles. The way we talk about natural disaster, the way we think about the risks of building in hazardous places, and structural aspects of American political institutions all favor development over restraint. Indeed, these forces have such strength that in most circumstances society automatically and thoughtlessly responds to natural disasters by beginning to rebuild as soon as a disaster has occurred. The types of obstacles discussed in this Article interact and amplify one another, further impeding policymaking. The history of disaster policy suggests that efforts to respond to any one obstacle will likely fail. Only by understanding these obstacles collectively, and by coordinating responses to their individual and cumulative effects, can America effectively tackle the natural disaster problems it faces

Oil and Gas and Floods

This symposium article has three goals. First, it seeks to draw attention to the pressing risks that natural disasters pose to energy infrastructure. It focuses on one type of natural disaster flooding and one variety of energy infrastructure-oil and natural gas. Natural disasters do not, however, discriminate and also pose broad risks to energy systems of all stripes. Second, the article seeks to provide examples of existing federal and state legal regimes that address to some extent the dangers floods pose to the oil and gas industry. As we shall see, the regulatory regimes I address are sparse and hardly comprehensive. Third and finally, the article seeks to provide preliminary thoughts about the reasons that regulation of oil and gas development in flood-prone locales has historically favored development

The Invisibility of Jurisdictional Procedure and Its Consequences

Modern standing doctrine has been the subject of substantial scholarly inquiry. Critics charge that it allows judges to resolve cases based on their own ideologies, favoring corporations over individuals and those who harm over those harmed. The doctrine likewise disserves social justice, preventing adjudication of indisputably meritorious claims. Yet the focus on the substance of standing doctrine has obscured an equally significant impediment to justice created by the procedures that judges use to adjudicate questions of standing and subject matter jurisdiction generally. The unusual dimensions of jurisdictional procedure have largely escaped notice. This Essay interrogates the history and context of jurisdictional procedure, offers an explanation for its invisibility, and identifies the consequences of that neglect

Compensatory Mitigation and Public Lands

The Bureau of Land Management (BLM) manages America’s public lands for a multiplicity of uses and values. This effort requires difficult tradeoffs, because allowing one use, like oil drilling, will displace others, like recreation or wildlife habitat. Compensatory mitigation—the practice of requiring land users to offset their environmental harms—provides an important mechanism for addressing use conflicts, by enabling intensive development in designated areas, while conserving the ecological integrity of public lands as a whole. Despite its potential to balance competing interests in public lands, compensatory mitigation has come under fire. Former Interior Secretary Ryan Zinke described compensatory mitigation as “un-American” and “extortion,” and under his leadership, the BLM disclaimed authority to require it, never mind that the agency had done so for decades. The policy has persisted under the leadership of Secretary David Bernhardt. This Article examines the history of public land law, the development of environmental mitigation policies across the federal government, and three interlocking provisions of Federal Land Policy and Management Act of 1976—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 assesses the circumstances in which resource users can appropriately be required to offset the impacts of their uses

The Invisibility of Jurisdictional Procedure and Its Consequences

Modern standing doctrine has been the subject of substantial scholarly inquiry. Critics charge that it allows judges to resolve cases based on their own ideologies, favoring corporations over individuals and those who harm over those harmed. The doctrine likewise disserves social justice, preventing adjudication of indisputably meritorious claims. Yet the focus on the substance of standing doctrine has obscured an equally significant impediment to justice created by the procedures that judges use to adjudicate questions of standing and subject matter jurisdiction generally. The unusual dimensions of jurisdictional procedure have largely escaped notice. This Essay interrogates the history and context of jurisdictional procedure, offers an explanation for its invisibility, and identifies the consequences of that neglect