Public Land & Resources
Law Review
Notes
on a Progressive Public Land Policy
Keynote address delivered
by Former Interior Solicitor John Leshy at
the 32d Annual Public Land Law Conference,
“A Federal Lands Agenda for the 21st Century:
Options for the New Administration,” University of Montana,
Missoula, MT Sept. 22, 2008.
While the country is caught
up in the final throes of an historic election season, we have gathered
here to chart a possible course for what follows. The particular
subject at hand is one that transcends fickle blue states and red states
and purple states. It is that one-third of the nation which (for
the most part) preceded the states themselves, and which stands as an
ongoing reminder of the original condition of America: our publicly-owned
landscapes.
I’ve titled my remarks
“Notes on a progressive public lands policy.” They
are “notes” because this is not a tightly organized brief but a
somewhat loose collection of observations.
I chose the adjective
“progressive” deliberately. Many of you are familiar with the
Progressive Movement that flowered across America around the turn of
the twentieth century. I want to talk a bit about it, because
my main point is that it offers some strong parallels to and lessons
for the challenges we face today.
The old Progressive Movement
grew in reaction to rampant, unregulated corporate excess and opulent
self-indulgence by the very rich in the decades after the Civil War.
What Mark Twain labeled the Gilded Age saw robber barons making vast
fortunes, shamelessly promoting narrow self-interest and plundering
the public trust.
It was an era when future
Senator William Clark of Anaconda here in Montana argued that the smoke
from the Butte smelter was a healthy
“disinfectant,” pleasing ladies with
“just enough arsenic to give them a beautiful complexion.”
I’m not making this up. That was one of his arguments to the
State Constitutional Convention in 1889 for why Butte should be made
the state capitol.
An era when Elbert Gary,
head of U.S. Steel, required workers to put in 12 hour days, 7 day weeks,
and a 24 hour shift every two weeks, while he and the other owners reaped
fabulous profits. It was said of Gary that
“he never saw a blast furnace until after his death.”
An era of yellow journalism,
with a press captive to political agendas, sensationalism and
scandal-mongering with only passing interest in the facts.
An era of unrestrained exploitation
of public lands and natural resources.
Against this low point in
civic virtue rose up a bipartisan movement: The Progressives.
Their cause was helped, not incidentally, by financial panics around
the turn of the century, fueled by rampant and unregulated speculation
on Wall Street. Sound familiar?
The Progressives preached,
among other things, that government should keep key natural resources
in public ownership. And government should manage them to serve
the broad public interest, using innovative public-private partnerships,
guided by the teachings of science.
The movement’s champion
was the irrepressible President Teddy
Roosevelt. TR struck fear into the Robber Barons. Their Karl Rove-like
strategist, Mark Hanna, seethed at him as
“that damned cowboy”.
Unlike latter-day corporate
cowboys, however, TR didn’t say:
“greed is good” or “government is bad.” He said things
like: greed ought to have limits, and government, when properly guided,
can be a powerful source for social good.
TR made conservation of
natural resources a centerpiece of the Progressive Movement. As
he put it, that was “the fundamental problem,
“ for “unless we solve that problem it will avail us little to solve
all others." He criticized, and I quote,
“the short-sighted men who in their greed and selfishness will, if
permitted, rob our country of half its charm by their reckless extermination
of all useful and beautiful wild things.”
He noted that the Robber
Barons and their defenders justified their plunder by arguing that these
resources “belonged to the people.” He agreed, but he added
a crucial qualification: “not merely to the people now alive, but
to the unborn people.” The Progressives saw the object was to
provide the “greatest good for the greatest number.” But that
number, TR was careful to point out, embraces those
“within the womb of time, compared to which those now alive form but
an insignificant fraction. Our duty to the whole, including the unborn
generations, bids us restrain an unprincipled present-day minority from
wasting the heritage of these unborn generations. The movement for the
conservation of … all our natural resources [is] essentially democratic
in spirit, purpose, and method."
Building on this platform,
the Progressives profoundly transformed this country. We enjoy
the fruits of their labors every single day, in ways we often take for
granted. They permanently preserved large tracts of Federally-owned
land in America’s world-renowned systems of national parks, forests,
and wildlife refuges.
They installed reforms so
that public resources like fossil fuels and hydropower sites were no
longer given away willy-nilly to the private sector, but instead were
leased to private interests for development under the watchful eye of
government control.
If that Movement had not
occurred, I daresay the quality of life in Montana and the West would
be much different and, I would argue, much diminished.
Why highlight this history?
Because, it seems to me, we may be seeing the end of a modern-day Gilded
Age. It is a second era in which Wall Street moguls have pronounced
that corporate “greed is good.” And the interests of the larger
community? Well, not so much. An era in which government has been
demonized as an obstacle, bungling or incompetent at best, and downright
evil at worst. An era in which one Secretary of the Interior’s
reaction to news of a dangerous hole in the earth’s ozone layer was
not to address the manmade cause of the
problem, but instead to advise people to wear sunglasses and hats.
An era when a U.S. Vice President pronounced that while conservation
may be a “sign of personal virtue,” it can’t be a
“basis for a sound energy policy.” An era when national leaders
chose to ignore an emerging scientific consensus of the threat of global
climate change and refused for many crucial years to address its causes
or grapple with its effects.
It is interesting that,
beneath the noisy partisan rhetoric of this campaign, both
candidates invoke the bipartisan spirit of TR. If we listen carefully,
I think we can hear modern echoes of that historic transition from the
Gilded Age to the Progressive Movement that took place roughly a century
ago.
And we are reminded why
the West is more than the place where this election will be won or lost.
It may be here where America rediscovers the best within itself and
remains, in the famous words of Wallace Stegner, the
“geography of hope.”
Now, whatever happens, I
would not expect westerners will rush fully into the embrace of the
federal government. For although most westerners love their public
lands, they also love freedom and privacy, and carry in their hearts
a streak of libertarianism that bridles at governmental interference
with personal lives.
Nor should they rush to
put all their faith in government. Government is us,
and like us, it is capable of bad and stupid things.
But it is our instrument,
and we have all, if we’re not totally blinded by ideology, seen examples
of how it is able to do good and wise things, if we choose to use it
that way.
There are no atheists in
foxholes, goes an old saying. I was reminded of it in the last
few days as we’ve observed former fierce advocates of free markets
and deregulation and opponents of government interference do an abrupt
about-face, and look to the federal government to fix the collapse of
unregulated financial markets.
Here in the West, we can
appreciate that irony, for here we’ve long embodied a great harmonious
paradox - a culture that prizes rugged independence, yet flourishes
amidst a vast public domain managed mostly by a government based thousands
of miles away.
---------------------------
Now, with the past as our
prologue, let me offer some notes on what might be a
“new progressive era” public land policy.
TR’s Progressives spoke
of their obligation to those yet unborn. That included us.
Our obligation to future generations, in turn
– and the foremost challenge of our age– is to control carbon emissions
to keep the greenhouse effect within tolerable bounds.
We humans have long operated
under a paradigm that the future climate will always generally be like
the past. But today we are in the midst of a massive shift in
that paradigm. That shift will demand rapid responses to both
the causes, and the consequences, of climate change.
Our federal lands must play
an important part as we try to “avoid the unmanageable and manage
the unavoidable.”
Climate change can change
everything, sometimes in ways we can’t even yet imagine. With
its shadow hovering over us, let me address some of the policy challenges
that run through our federal lands today.
Let’s start with energy
policy. Energy is the biggest producer of carbon emissions, and Federal
lands are the biggest single supplier of carbon-intensive fuels in the
U.S.: 1/2 of our coal, 2/5 of our natural gas; and 1/3 of our crude
oil.
There is no doubt we need
a new energy policy, but there is also no doubt the Federal lands will
remain an important source of fossil fuels to bridge the transition
to it. New progressives cannot ignore this reality.
But that does not mean that
the federal lands should continue to be handed over to the oil industry,
as the current administration has done, by overriding the concerns of
state and local governments, ranchers, hunters, anglers and everyone
else in its relentless drive to make traditional, fossil-fuel energy
production the dominant use of Federal lands.
Today’s new progressives,
like their predecessors a century ago, should affirm that our public
resources are not industry’s private domain. The Federal government
should work closely with all affected stakeholders to confine fossil
fuel development to areas of highest yield potential and lowest conflicts
with other values, and to tighten regulations that make industries clean
up and reclaim their own waste.
Moving toward a post-carbon
future, Federal lands will likely be much in demand as sites for solar,
wind and geothermal, and associated energy transmission infrastructure.
Public lands could also be sites for geological sequestration
– physically forcing CO2 underground forever
— or biologically growing biomass to capture carbon on the surface
through restoring forests and grasslands. And groundwater aquifers
under public land will likely be in demand as well, to cushion against
drought cycles.
TR’s Progressives were
bold in thinking about new ways to do things. Modern progressives likewise
need to think boldly and craft innovative policies for siting solar,
wind, groundwater storage and recovery and carbon sequestration projects,
and rights of way for transmission lines and pipelines so that supply
can efficiently meet demand, while still serving other needs and protecting
those landscapes so important to the western quality of life.
The federal lands should,
in other words, become a vast demonstration project for how to
sensibly manage natural resources in a carbon-conscious world; and by
such means play an important role in the vital task of reducing carbon
emissions so that we can avoid the unmanageable.
But we must also manage
the unavoidable. That means using the federal lands to mitigate
the consequences of climate-change already underway.
Even before what humans
were doing to the climate became appreciated, the rich variety of life
on Earth was shrinking at an alarming rate. The implications of
this are profound, for the economy, human health and ethics as well
as ecology.
Climate change will probably
accelerate this loss, by altering habitats and changing the timing of
seasonal events such as snowmelt and insect emergence.
The federal lands could
be ever-more crucial biodiversity reservoirs, sanctuaries for species
imperiled by shifting habitats and other climatic changes. It
is, as Joseph Wood Krutch wrote more than a half century ago,
“not a sentimental but a grimly literal fact that, unless we share
the planet with creatures other than ourselves, we shall not be able
to live on it for long.”
More broadly, the federal
lands will become more and more prized for their value in providing
what have come to be known as “ecosystem services,” the myriad of
ways – from cushioning floods to pollinating crops -- the natural
world helps protect the quality of human life on earth.
-----------------------
The four cornerstones for
a new Progressive federal land policy to meet these
challenges should be to restore the promise of the three great national
land systems created by the first Progressive Movement
– national forests, national parks, and national wildlife refuges
– and to nourish and expand a fourth, fledgling one, BLM’s National
Landscape Conservation System.
The National Forest System
has fallen on hard times. Half its budget is now consumed by fire-fighting.
Its planning and decision-making processes are in shambles. Communities
once dependent upon their share of revenue from timber sales are facing
cutbacks.
It needs a close and systematic look.
The National Park System
has also suffered, despite its iconic stature and overwhelming popularity.
President Bush campaigned on a promise to fully fund the system, but
his administration never came close to achieving
that goal. To paper over its failures, the Administration announced
an ambitious Centennial Initiative in 2006 a 10 year revitalization
program to end with the 100th anniversary of the National Park Service
in August 2016. The new Progressives should embrace the general idea
of a centennial initiative, but some really hard thinking needs to be
done about the role of national parks in a climate-changed world, appropriate
criteria for expansion, the system’s role in urbanized areas, the
role of public-private partnerships, and how best to assess and meet
deferred maintenance needs.
The National Wildlife Refuge
System, less well-known, has been starved. It comprises an area
the size of California in 550 units scattered throughout all 50 states,
and plays host to more than 40 million visitors each year. It
faces the challenge of adapting to a destabilized climate disrupting
barrier islands, coastal wetlands, and other vulnerable habitats.
Similar hard thinking needs to be done to chart its future, including
exploring ways to make its funding base secure and robust.
And what about the largest
Federal lands agency of all – the BLM?
Measures of value change
with time. Long after states, railroads, miners, homesteaders and others
had picked through the Federal public domain, BLM and others recognized
that its 260 million acres -- 8 million acres in Montana alone -- contain
superb scenic, historic, cultural and recreational landscapes.
Like their counterparts
in the other three great systems, these landscapes provide ecosystem
services, some great habitat and cultural resources, inspiration, education,
and outdoor scientific laboratories, not to mention tourism dollars
for local economies.
Yet barely 10% of BLM lands
have been protected as national conservation
areas, monuments, and wilderness. To address this problem, the Clinton
Administration created a new National Landscape Conservation System
(NLCS) within BLM for these specially-designated lands. While some of
the Clinton-Babbitt moves were initially controversial in more conservative
parts of the West, they and the NLCS have rather quickly gained wide
acceptance, and sparked some demand for more.
Although the Bush administration
came into office aiming to undo this legacy, President Bush himself
eventually used a favorite Clinton tool, the Antiquities Act, to protect
a marine area of the Northwestern Hawaiian Islands that is larger than
46 of the 50 states. And his Administration eventually endorsed
a proposal now pending in Congress to give
the NLCS statutory permanence, which will allow it to grow and mature.
The NLCS is major unfinished
business. There is no doubt that BLM manages some magnificent areas
not currently part of the NLCS. Today’s progressives should
work to nurture and expand it, so that it can take its rightful place
as a new Progressive counterpart to the other great federal land conservation
systems.
------
Charting the future of the
federal lands in a climate-changed world also requires some reconfiguring
of public land ownership to better meet today’s challenges.
In reaction to America’s
early history of fast, furious and sometimes careless land disposal,
the turn-of-the-20th- century Progressive Movement
not only decided to keep hundreds of millions of acres of land permanently
in federal ownership, but also inaugurated the first significant program
of acquiring more lands into public ownership.
This program was responsible
for the national forests now found in the east and midwest, for most
national parks outside the west, and for national wildlife refuges across
the country.
This acquisition program
has continued, now more than ever with an emphasis on protecting habitat
and connectivity. Federal lands can serve as reservoirs and refugia
for biodiversity only if we protect and in some cases restore the connective
tissue of migratory corridors that allow nature to adapt to change.
Many of you are familiar
with the largest such effort in the country, for it’s in your back
yard. I’m referring to the Montana Legacy Project’s proposed
acquisition – using federal, state and donated private funds, to acquire
320,000 acres of Plum Creek lands - mostly checkerboarded with Federal
lands, the legacy of the Northern Pacific railroad grant - in order
to restore their ecological integrity. To its great credit, the
state of Montana is not only a key player in that effort, but is also
pursuing other acquisitions, such as the Lincoln Ranch, which includes
eleven miles of riparian habitat on the Marias River. As this shows,
the feds have no monopoly on such salutary initiatives.
In this reconfiguration
effort, lands managed by the Bureau of Land Management need particular
scrutiny. A considerable amount of BLM land is shot through with in-holdings,
or held in scattered, difficult-to-manage parcels suitable for development
but without much ecological value.
Just as Rachel Carson did
not oppose all pesticides, only their indiscriminate excess, so it is
no heresy to say that not every acre of the vast Federal domain has
to stay in public ownership.
Make no mistake, the Sagebrush
Rebellion --with its careless calls for large-scale divestiture of Federal
lands – is dead. Its last gasp may have come about three years
ago when the ill-advised Pombo-Gibbons bill, ostensibly designed to
reform the old Mining Law, would instead have indiscriminately privatized
millions of acres of federal land. Although it passed the House,
it died in the Senate. The final nail in this coffin was driven
two years ago when voters evicted House Resource Committee Chairman
Richard Pombo from office.
I am confident
that the general public is impatient to move beyond such simplistic,
blunderbuss approaches. The essential question is not quantitative
– how many acres the public owns. It’s qualitative:
Where should these lands be, what attributes and characteristics should
they have, and what values should they serve?
Much can be done to harmonize
the patchwork of landholdings, for example, we could sell nature-poor
scattered acres and using the proceeds to consolidate and enhance priceless
integrated habitat.
------------
None of the initiatives
I’ve mentioned is possible without a renewed civic will, and interest
and pride in our public lands. To get there, we need more extensive
citizen engagement in these matters.
TR
was a fierce proponent of what he called
‘the strenuous life,’ getting outside, on the land, hunting, fishing,
viewing wildlife, hiking, and camping with his trademark incredible
energy. Today’s Progressives should aggressively promote
this outlook, by advocating environmental education, a conservation
ethic, and volunteerism.
TR spoke of how a
“prophylactic dose of nature” could bring more balance to modern
life and inculcate a conservation ethic. Sound silly? It turns
out TR was right. An unsettling syndrome called
“nature-deficit disorder” is prevalent among the nation’s youth.
(See Richard Lou’s compelling book, Last Child in the Woods, published
two years ago.) And it has pernicious health, educational, cultural
and political effects.
The senses are powerful.
Nature offers the opposite reality of one that is merely
‘virtual.’ Wildlands leave a lasting imprint on our psyche
and character. But it’s very hard to mobilize popular support for
something if people never get to experience it, even a little.
Federal lands are within easy driving distance of the overwhelming majority
of Americans, and offer outstanding opportunities for stimulating encounters
with nature.
Combating nature-deficit
disorder is, or ought to be, a bipartisan national cause. It is heartening
that both presidential candidates speak meaningfully of national service.
No matter who wins the election, new progressive programs should be
instituted or expanded to promote outdoor education and volunteerism
on the Federal lands, from senior citizens helping out in visitor centers,
to volunteer crews doing trail maintenance and cleanup, to students
and others helping with surveys of wildlife and cultural and historic
resources.
And none of the initiatives
of the new Progressives is possible without some money and more prudent
fiscal management. As Jesse Unruh once put it, money is the mother’s
milk of politics. So
new Progressives have to pay close attention to budgetary issues, particularly
as this administration’s tax cuts and other policies have converted
the Clinton-era surplus into deficits as far as the eye can see.
And it looks like the budget deficit is going to grow by perhaps a cool
trillion dollars.
The object should be to
put management of Federal lands and related programs on a more fiscally
sound basis.
Federal policy on these
matters remains an incoherent hodge-podge. That’s because it
has evolved haphazardly over the years. Hard-rock mining companies operating
on federal lands pay no rental or royalty to the federal treasury even
though they are extracting the public’s minerals. Other users of federal
lands pay us, the owners, much less than
the would if they were operating on state or private lands. In recent
years, federal agencies are being much more aggressive about charging
fees for camping and other recreational uses, creating controversy and
proposals for legislative reform.
Adding to this confusion,
revenues generated from federal lands flow off in many different directions.
Some go directly into the Federal Treasury; others are earmarked for
conservation, but often get diverted en route; and still others
‘stay put’ in true revolving funds. Most of the revenue from
recreation fees, for example, is reinvested in the land by local land
managers.
Clear, consistent rationales
and firm enforcement (and cleaning up the mess at the Minerals Management
Service) are really important to restore public confidence in the management
of these publicly-owned resources.
The next Progressive administration
should promptly convene a working group or task force to comprehensively
examine Federal land royalty, rental and fee policies; to compare the existing policy landscape to comparable
state and private landowners; to evaluate options; and to recommend
whether, where and how much to charge Federal land users. These
users don’t just include mining companies, oil drillers, logging companies,
ranchers and recreationists, but also renewable energy generation projects
– including wind, solar, hydro, geothermal, and also carbon sequestration
projects and groundwater pumping and storage projects and transmission
lines and pipelines rights of way.
One fiscal
item worth particular mention is the Land and Water Conservation Fund.
Created in 1965, the LWCF is supposed to receive about $1 billion annually
from Federal land-generated oil and gas receipts for distribution to
support Federal, state and local conservation projects Despite
many promises to do so, including from the current President when he
was campaigning in 2000, the LWCF has never been fully funded.
In the current administration,
LWCF appropriations declined by 70% between 2001 and 2008. Yet the LWCF
enjoys wide popular support. And with good reason: the projects
it funds can help defuse and resolve many natural resource conflicts
through the kind of “reconfiguration” and conservation acquisition
initiatives I spoke of earlier.
----------------------
I don’t want to leave
you with the notion that the early twentieth century Progressives got
it all right. They didn’t. Most prominently, they were too successful
at taming fire, with effects some today would call
calamitous. I don’t have time to go into the details here, and
anyway many of you are painfully familiar with the problem.
What lessons should we draw
from this failure? One is to have a good and proper attitude.
The reform agenda should be pursued aggressively, but not blindly.
We need to guard against hubris. The framers of the U.S. Constitution
had a vigorous debate about whether to include in it a process for amendment.
Some argued it was perfect and would never need change (forgetting perhaps,
that it essentially ratified slavery). But wise old Ben Franklin,
in his ninth decade, advised his colleagues to doubt just a little their
infallibility. That’s still good advice. The earlier Progressives
were bold and their experiments mostly succeeded. But, as their
fire policy showed, mistakes are inevitable. Some flexibility
and some compromise may often be a good thing.
The second lesson from this
failure is that government has to respect science, to invest in science,
and to pay attention to what it teaches. That means, among other
things, paying attention to the maxim that, to be commanded, nature
must be obeyed. Our
mistakes in fire policy stand as vivid reminders of that.
The challenges facing the
federal public lands are enormous. They are in some ways a slice,
a microcosm, of the challenges America faces; indeed all humanity faces.
In some fundamental way, TR and the old Progressives understood that
connection.
And so I find myself turning
to TR and the Progressives not merely because of their accomplishments,
but because of their faith in the power of Federal public lands to make
Americans better, more democratic, more tolerant, more well-rounded,
more cohesive.
They believed, as Wallace
Stegner so eloquently put it later, that
“something would go out of us as a people” if we let our last intact
landscapes be broken up, degraded, sacrificed or liquidated.
The transcending vision
of TR’s movement, still subscribed to by many today, especially here
in the West, is that federal public lands shape our character and our
identity. And so they can no more be converted into a collection of
unrelated parts than we, as citizens of these United States, can be
reduced to a loose assembly of disaggregated people.
That first Progressive movement bequeathed to us the challenge of managing our Federal public lands wisely. It is a heavy responsibility, this fragile and precious living gift, which binds us to our ancestors, and which we in turn hold in trust for those future generations as yet unborn. There is much to do, and we need to get on with it.