Dangerous and Radical: Republican Senators Vote to Sell off America's National Forests
It sounds like it's too crazy to be true: a mass sell-off of publicly owned federal lands? During the U.S. Senate's recent marathon debate over the 2016 fiscal year federal budget, legislators voted on dozens of symbolic, non-binding amendments. One of them, Senate Amendment 838, has the public up in arms, including environmentalists, hunters, sportsmen and outdoor enthusiasts.
Introduced by Senator Lisa Murkowski (R-AK), who chairs the powerful Senate Committee on Energy and Resources, SA 838 is a budgetary amendment that seeks to "establish a spending-neutral reserve fund relating to the disposal of certain Federal land."
In other words, it will fund state efforts to take over, sell and transfer federal land to private interests.
The amendment narrowly passed by a vote of 51-49 along a near party line. Democratic senators unanimously opposed the measure and were joined by three Republicans—Lamar Alexander of Tennessee, Kelly Ayotte of New Hampshire and Corey Gardner of Colorado.
Less camping, more drilling
But while the issue appears to be an overwhelmingly partisan one among Senate lawmakers, it looks less so among the general public, with conservative-leaning groups like Backcountry Hunters and Anglers, a Montana-based nonprofit sportsmen association, joining environmentalists in offering stern criticism of the vote.
"Public lands are the fabric that binds America together, and [the recent] vote by the Senate sends an alarming message to sportsmen and—women—along with every citizen who values our publicly owned resources," said BHA executive director Land Tawney. "Nationally, an organized, concerted movement is underway to sell off and limit access to America’s public lands and waters. These are not merely the actions of a lunatic fringe. Now is the time to double down and fight back against this ill-conceived idea."
The wording of the measure notes that it cannot apply to "any land that is located within a national park, within a national preserve or a national monument," as these public lands enjoy the strictest federal protection. But it does leave open the sale of national forests, national memorials, wildlife refuges and wilderness areas.
"It would allow states to take control of some of our most cherished places and sell them off to private interests for oil and gas drilling, logging, mining, and other development," said the nonprofit League of Conservation Voters (LCV). "Industrial-scale oil and gas development could destroy the pristine nature of the Arctic Refuge’s coastal plain forever, damaging natural habitats and harming the wildlife that calls the area home. An oil spill in this region would not only directly harm polar bears, but would also contaminate their habitat. Even without an oil spill, some level of pollution and habitat fragmentation from oil and gas activities is inevitable with expanded development."
Wolf in sheep's clothing
During her introductory remarks to the SA 838, Murkowski was a wolf in sheep's clothing, couching her desire to privatize and exploit public lands for oil and gas development in terms of conservation and renewable energy.
"When we have an opportunity to consider this amendment, a vote for it is really a vote in support of—as a priority of this Congress—comprehensive approaches to land policies to facilitate economic development, empower States and improve our conservation systems," Murkowski said.
"My staff asked what percentage of wind projects are actually on federal land. And surely, given the commitment we have to renewable energy, one would expect that to be a high percentage. The answer back was hardly any. Some 98.6 percent of wind projects are apparently on state and private land—98.6 percent. Not even 2 percent are on federal land."
It is difficult enough to comprehend a wind farm scarring the untouched natural landscape of the Arctic National Wildlife Refuge's coastal plain, a fragile, biodiverse ecosystem scientists call the "biological heart of the entire refuge." But Murkowski isn't as interested in erecting turbines as in drilling for fossil fuel.
In the pocket of oil and gas
In addition to introducing a bill that would have blocked EPA's authority to limit the amount of greenhouse gases major polluting industry can emit and blocking another bill following the 2010 BP disaster in the Gulf of Mexico that would have raised the oil spill liability cap from $75 million to $10 billion, Murkowski wants to open up the pristine Arctic Refuge to oil and gas drilling. In February, Murkowski introduced the Authorizing Alaska Production Act (S. 494), cosponsored by Senator Dan Sullivan (R-AK), which would open up the refuge's coastal plain to oil and gas development.
"The Arctic National Wildlife Refuge is the most important onshore denning habitat for America’s vanishing polar bears," notes the nonprofit environmental group Defenders of Wildlife. "Home to one of only two polar bear populations in the United States, the Southern Beaufort Sea population, roughly 1,500 bears rely on the refuge for survival. But this national treasure has been caught up in a decades-long battle between those who wish to preserve the refuge's integrity, and those pushing to open it up for oil and gas drilling."
It's no surprise that Murkowski is backed by the oil and gas industry. Her top five campaign contributors for 2013-14 include ConocoPhillips; PG&E Corp.; Edison Chouest Offshore, a marine transport firm supporting U.S. Gulf's deepwater oil and gas industry; and Van Ness Feldman, a leading energy law firm whose clients include American Electric Power, Puget Sound Energy and Houston natural gas energy company Kinder Morgan. Her 2014 LCV national environmental scorecard is a perfect zero.
Sagebrush rebellion redux
SA 838 comes on the heels of ongoing (and most likely unconstitutional) efforts by several Western states—Utah, Arizona, Wyoming, New Mexico, Colorado, Nevada, Alaska and Idaho—to take possession of public land from the federal government to let private industry exploit their natural resources.
It may be a purely symbolic, non-binding measure that carries no legal weight, but the amendment sets a high bar that paves the way for a compromise that may see the transfer of some public lands to states that want to auction them off on the open market to the highest bidder.
"These lands could be owned solely by extractive industries," notes the Wilderness Society, pointing out that SA 838 "only furthers a disturbing trend in the war on our public lands…This state land-grab fever had been confined to about a dozen state legislatures in the West. Now this extreme idea, propelled by extractive industries, has infected our national government in Washington."
The nonprofit has launched a public petition urging lawmakers in Congress to "keep public lands in public hands."
But while the amendment was passed by the GOP-controlled Senate, it may run afoul of the Constitution. According to the Property Clause, Article IV, § 3, cl. 2, "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."
"The text leaves little room for ambiguity over who may make decisions affecting United States land," asserts Raph Graybill, a fellow at the Yale Institution for Social and Policy Studies. "Only Congress may initiate the sale or transfer of federal public lands."
Graybill dismissed the recent efforts by Western state legislatures demanding an end to the federal government's management of public land. "In the end, states have no constitutional power to force federal land transfers." He compared that strategy to the Sagebrush Rebellion, a movement in the 1970s and '80s that championed states' rights regarding the control, use and disposal policy of federal land spanning 13 Western states.
"Congress may initiate a transfer or sale, but demands by state or local governments have no constitutional foundation," said Graybill. "Under the Constitution, state transfer demand laws can amount to little more than spent paper."
Indeed, the Supreme Court has described Congress’s power to legislate under this clause as "without limitation."
WWGD: What would the Gipper do?
"These lawmakers are waging a losing battle that amounts to little more than political grandstanding to rally their extreme conservative base and feed an antigovernment narrative," said Jessica Goad, a spokesperson for the Public Lands Project at the Center for American Progress, and Tom Kenworthy, a senior fellow at the Center. "Such bills contradict the majority of public opinion in these states, as well as economic realities and constitutional precedent dating back to the mid-19th century."
The Sagebrush Rebellion included efforts by the Reagan administration to divest federal lands. In February 1982, barely a year after he took office, President Reagan issued an executive order, Federal Real Property, that established the Property Review Board to review federally managed public lands for potential disposal. This and similar efforts by Congress at the time proved unsuccessful. But today, the Sagebrush rebels have found a new ally in Sen. Murkowski, who has renewed to call to take public lands out of public hands.
With just a few months left in his second term, Reagan may have mellowed and looked less like a Sagebrush rebel and more like his predecessor Theodore Roosevelt, who, as one of the first American presidents to make environmental conservation a national priority, played a central role in the creation of five national parks, 18 national monuments and 150 national forests.
In October 1988, presenting a report of the Council on Environmental Quality, Reagan told Congress:
"The preservation of parks, wilderness, and wildlife has also aided liberty by keeping alive the 19th century sense of adventure and awe with which our forefathers greeted the American West. Many laws protecting environmental quality have promoted liberty by securing property against the destrutctive trespass of pollution. In our own time, the nearly universal appreciation of these preserved landscapes, restored waters, and cleaner air through outdoor recreation is a modern expression of our freedom and leisure to enjoy the wonderful life that generations past have built for us."
At a time when so many of the Gipper's fellow GOPers have clearly demonstrated their willingness to sell off America's public lands to the highest private bidder for industrial exploitation, those are words worth recalling.