(This is second of two parts. Part 1 examined how the courts are changing and public lands conservationists must rely less on litigation to achieve our goals. Part 2 explains that public lands conservationists must rely more Congress enacting good legislation to achieve our goals.)
The intense current focus on the Supreme Court, and courts in general, as arbiters of law (including public lands and wildlife laws) is a result of the frustration of interest groups on all sides that the other two branches of our government, most especially Congress, are generally dysfunctional. Almost no substantive policy is passing Congress these days (which can be either good or bad, depending on your interests), and executive branch decisions are sometimes being blocked by Congress but mostly by the courts.
While conservation—especially public lands conservation—has broad and deep bipartisan support among the masses, among the party leadership it has become extremely partisan. In Congress, and especially in the House of Representatives, enough Republicans from rural western districts are often extremely anti–public land to carry the day in their caucus. In Congress, party leadership determines which bills get heard and voted on. Very few good public lands conservation bills are moving. Congressional constipation is the reality for the time being.
There is still a requirement of sixty votes to pass most legislation in the Senate. That’s because it takes sixty votes to end debate and move to a vote. Any senator can filibuster a bill, and these days many do. The filibuster, once rarely used, is now routinely used. The Senate has gotten rid of it for votes on executive and judicial appointments. It even now has a rule that allows a filibuster to be avoided by placing the legislative matter on a special budgetary track.
Use of the filibuster was once limited to matters where a senator felt his vital interests were at stake (for example, it was used by racist southern senators to block civil rights legislation). It is now routine, although it no longer happens in the style illustrated in Mr. Smith Goes to Washington, where Jimmy Stewart brings all Senate business to a halt by holding the floor until he drops. Today a filibuster just holds up consideration of a bill, while other business of the Senate continues. A senator can place an anonymous hold on a bill and it won’t move until the senator is satisfied or outvoted with sixty votes.
The only thing keeping the Senate from ending the filibuster is that members of the majority know they might well be in the minority again. Yet, when the stars align on a bill very important to the Senate majority (and when the House of Representatives will vote for the same bill and the President will sign it), the filibuster will, in all likelihood, end.
Congress and the Constitution’s Property Clause
“The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States,” states Article IV, Section 3, Clause 2 of the US Constitution. In other words, under the Constitution, the executive branch has no authority over the federal public lands.
In practice, over the centuries Congress has delegated operational control of the public lands to federal land management agencies that are part of the executive branch. When you read a federal statute pertaining to federal public lands, it’s almost always in the form of directing “the Secretary” to do or not do something. For the National Park System, the National Wildlife Refuge System, and Bureau of Land Management holdings, that would be the secretary of the interior. For the National Forest System, it’s the secretary of agriculture. Even though the secretary is appointed by the president (subject to Senate confirmation) and serves at the pleasure of the president, a secretary’s power over federal lands is because Congress delegated that power. In a few cases, such as the National Monuments Act of 1916 (a.k.a. the Antiquities Act) and the Outer Continental Shelf Lands Act of 1953, Congress has authorized the president, not a secretary, to take certain actions.
This delegation by Congress is not an ideal situation for the public lands. I once worked on a legislative provision that would have protected older forests on BLM lands in western Oregon. It was drafted, as best I recall, along the lines of “The Secretary shall not allow the logging of older [mature and old-growth] forest stands.” I wanted it to say: “The logging of older forest lands is prohibited.” I did not prevail, nor, alas, did any such provision. Notice the difference. The former relies on a delegation to the secretary, which future courts might take exception to. The latter does not. It is unambiguous and not subject to the whims of judicial interpretation.
If we had a more environmentally responsible Congress, it could enact laws that clearly and unambiguously prohibit mining, drilling, fracking, clear-cutting, and grazing on particular portions of the public lands. Such laws could also say that where such activities do occur, they shall only happen under specific conditions. This would produce more reliable results than Congress delegating the authority to a secretary to decide, and then hoping that the courts uphold the agency action.
What Are Conservationists to Do?
So, what are conservationists to do if they must rely less on the courts to protect public lands? If the courts won’t hold federal land management agencies accountable to follow the laws that Congress enacts (because the laws are ambiguous or an excessive delegation of power, or whatever), the solution is to get Congress to write better laws.
The goal is simple, though achieving it will be difficult for the public lands conservation community: elect more senators and members of Congress who will vote to protect the environment. Our conservation organizations are not currently aligned to do so and in fact are expressly aligned not to do so. We will continue to lose battles over public lands until we direct our resources into elections and away from administrative processes that may well be less available for judicial review than in the past. Please see my previous Public Lands Blogpost entitled “The Public Lands Conservation Movement: Mis-organized for Job #1.”
Economists refer to any rapidly changing economic activity as undergoing creative destruction (for example, in the music industry, the progression from vinyl records to eight-track tapes to cassettes to CDs to streaming). Kodak invented digital photography but didn’t develop it because it was a threat to the company’s existing business model. Gee, that turned out well!
The problem with the nonprofit environmental movement is that our organizations don’t have competitors that love driving existing organizations out of business, as in the for-profit sector. If the environmental movement fails to creatively self-destruct and rebuild, we will simply continue to lose. What is necessary is nothing less than a near-total reinvention of the environmental movement—not in what we stand for but in how we work. The transition will be painful in that a lot of employees who have been good working on administrative processes must either become good working to elect better candidates or be made redundant.