Compensatory Mitigation and Public Lands

Abstract

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.