Andy Kerr

Conservationist, Writer, Analyst, Operative, Agitator, Strategist, Tactitian, Schmoozer, Raconteur

Public Land Conservation Grand Bargains, Part 1: Hard Choices Ahead for Oregon Conservationists

This is the first of three Public Lands Blog posts that examine the increasingly difficult political decisions facing Oregon’s public lands conservationists. Part 1 poses a still hypothetical—but prospectively probable—public lands conservation package that contains some great, some good, some bad, and some ugly provisions. Part 2 will examine what Oregon public lands conservationists have done in the past when faced with such choices. Part 3 will wrestle with the devil of principle and the angel of pragmatism and make recommendations.

Fig. 1.  The west-facing side of the United States Capitol Building . Source:  Architect of the Capitol .

Fig. 1. The west-facing side of the United States Capitol Building. Source: Architect of the Capitol.

Imagine that the Oregon congressional delegation comes through with a rather nice package of public lands conservation legislation that has moved through the committees of jurisdiction and is awaiting votes on the floors of the House and the Senate. This legislation significantly elevates the conservation status of public lands, including some new and expanded wilderness areas, more wild and scenic rivers, some national recreation areas, some one-off congressional designations, and some other good things. For example, it might include

•       a record-sized expansion of wild and scenic rivers (WSRs) in Oregon that includes protective buffers double the normal width and permanent protection from hardrock mining for all WSRs,

•       a (good if not great) grand bargain centered on public lands in the Owyhee Canyonlands,

•       congressional authorization of the Cascade-Siskiyou National Monument to remove the threat of Trumpian de-proclamation,

•       a (great if not superb) grand bargain centered on public lands in and around Mount Hood, and

•       a permanent congressional ban on oil and gas drilling offshore Oregon.

There is nothing wrong with the legislative package except that it should include even more new and expanded conservation areas. There are no bad (though some benign) provisions that in any way demote the current conservation of other public lands in Oregon by exalting logging, grazing, mining, off-road vehicles, or other destructive activities.

What’s not to support? It’s all good. If the Oregon public lands conservation bill or bills were to get a straight up-or-down vote and then be off to the president for signature (don’t worry about that for this moment; we’ll burn that bridge when we come to it), my support would be wholehearted. What we don’t get in this bill (or these bills), we can immediately start advocating for in the next bill(s) while in the meantime using administrative appeals, judicial litigation, and public advocacy to keep the land management agencies from doing bad things.

The Breakdown in Regular Order

What I just described is the United States Congress operating under “regular order.” Wikipedia says:

Regular order within the context of the United States Congress refers to the semi-strict or strict application of committee and subcommittee processes, including public hearing opportunities and the holding of multiple votes. Said processes are designed to promote consensus-based forms of decision making, particularly in terms of fostering accommodations for minority viewpoints. In the context of the broader history of the U.S. Congress, regular order is closely associated with bipartisanship.

Regular order means that matters large and small, from renaming post offices to enacting the Wilderness Act, are in single-issue bills that get their congressional due process before being individually voted on.

For many cumulative and varied reasons, single- or related-matter bills are no longer debated on the Senate floor, perhaps amended, and sent on to either the House of Representatives or the president. If the soundtrack of Schoolhouse Rock’s “How a Bill Becomes Law” is an earworm in your head, it’s time to exorcise the demon. It no longer works that way.

Yes, there can be hearings, and some bills get debated and marked up in committee, but many pieces of legislation are enacted into law without the language ever having been first introduced into a bill. Conference committees to resolve the differences between the House and Senate versions? Very rare. Single-matter bills? Almost never.

Instead, the irregular order has become one of attaching a desired legislative provision onto the relatively few “must-pass” bills (funding the government, for example), which become Christmas trees with thousands of pages beyond the language that actually specifies how the money is to be spent. A must-pass bill may have many unrelated provisions. The controlling criterion is solely whether a provision helps or hinders getting 60 votes in the Senate (a supermajority, as required by the filibuster), 218 votes in the House of Representatives, and one signature in the White House.

Since must-pass bills cannot carry all the legislative weight, there are also “wanna-pass” bills that are also the sum of grand horse trades in vaguely related subject areas. Here we are most concerned about wanna-pass bills generally pertaining to public lands.

The breakdown in regular order is most acute in the Senate. Irregular order used to be the order of the day in the House of Representatives, but that’s generally changed since the Democrats regained the majority in that legislative body. The House is regularly introducing, considering, and passing bills (most with mostly Democratic votes) that then go over to the Senate and die. The House is sending over very popular bills that have immense public support (background checks for gun ownership, fixing Obamacare, campaign finance reform, government reform, and the like), which House Democrats taunt Republican Senate Majority Leader Mitch McConnell to take up.

McConnell usually doesn’t, even though a majority of senators, including many Republicans, would vote for such bills if they could (or were forced to). McConnell says he won’t put any bill on the Senate floor that President Trump won’t sign—which describes many of the House-passed bills.

Poison Pills Make Poisoned Bills

Back to imagining the next Oregon public lands conservation bill(s). That very good bill has (or those very good bills have) been put into a wanna-pass “omnibus public lands package” in the Senate. The content of the omnibus bill is determined by which package of provisions can obtain the votes of the critical mass of senators necessary to advance the bill first on and then off the Senate floor.

For example, a senator commits to not supporting a filibuster in exchange for getting things in the bill that the senator really wants. For a bill to overcome a filibuster, the must-have legislative provisions of many senators must be packaged together. This means the omnibus package includes both very good, benign, and very bad provisions that will all become law if all goes according to plan.

The omnibus bill generally includes two kinds of legislative provisions: national policy and local fixes. National policy provisions apply broadly to the nation’s public lands in matters such as logging, roading, grazing, and mining. The Oregon public lands conservation provisions are a local fix in that senators from other states with large amounts of federal public land really don’t care what happens to the public lands outside their state as long as they can get their way about the public lands within their state. Complicating this to some degree is that public lands are important to voters in states with limited federal public lands, especially states with more urban and suburban populations.

Support or Oppose?

Let’s now imagine a bit more. The package of measures elevating the conservation status of certain public lands in Oregon a significant amount (and demoting none) is put into a big-ass (a political term of art) omnibus public lands bill. There are similar packages from California, Colorado, New Mexico, Washington, and several other states—including from states with Republican senators who nonetheless want more protected public lands in their states. There are also several benign provisions such as giving a very small parcel of federal public land to a fire district that has long leased it for the fire station.

This prospective omnibus package includes one truly excellent bill that would provide for the permanent funding of the Land and Water Conservation Fund (LWCF) so that it would no longer be subject to the whims of congressional appropriations. Because acquiring more public lands is even popular in red states (and the LWCF also funds local and regional parks and recreation facilities), the LWCF bill has very broad and deep public support. It is the flagship of this omnibus bill. The public lands conservation community has long sought permanent LWCF funding and really wants this bill.

However, there are also some provisions in the prospective omnibus package that are harmful to public lands and are favored by the chair of the Senate Energy and Natural Resources Committee (Lisa Murkowski, R-AK), the ranking member of that committee (Joe Manchin, D-WV), and the third ranking member in the Senate Republican leadership (John Barrasso, R-WY). These include

•       facilitating a gas pipeline through Denali National Park to make it easier to de-gas Alaska’s North Slope (and over-gas the climate) for use by foreign countries,

•       overturning administrative protection for roadless areas in the Tongass National Forest to enable an increase in clear-cutting of old-growth rainforest to aid a pathet

ically small and economically unimportant timber industry in southeast Alaska,

•       putting a road through designated wilderness in the Izembek National Wildlife Refuge to allow Peter Pan Seafood to fly its goods to market,

•       allowing states to take over and increase leasing of oil and gas on federal public lands, and

•       further subsidizing the use of coal by funding federal research to extract rare earth minerals from coal so we can more cheaply read the rising CO2 numbers on our cell phone app.

Support or oppose?

Now imagine that only three of the six above offending provisions are included. Support or oppose?

What we have here is a Hobson’s choice (a choice of taking what is available or nothing at all) for Oregon public lands conservation.

In Part 2, we’ll examine some historical Oregon congressional conservation successes to see what light they can shed on whether Oregon conservationists should support or oppose this not entirely hypothetical and increasingly prospective grand bargain.