When can the BLM say 'no'?
Note: in the print edition of this issue, this article appears as a sidebar to another news article, "The anatomy of an energy lease."
If a BLM or Forest Service management plan OKs an area for leasing, BLM officials say they have little power to prevent drilling. "The bar (for withholding land from leasing) is pretty high," says Duane Spencer, the BLM’s Colorado branch chief of fluid minerals: The agency, he says, must prove that there is no effective way to mitigate the harmful effects of drilling.
The BLM upholds only about 5 percent of lease protests, says Spencer, because it pre-screens parcels before offering them. The Colorado BLM received 38 protests for 106 parcels offered in the February auction. It upheld just one of them, refunding the bidder’s money after determining that drilling could harm the San Miguel River.
The BLM does have the power to deny leases, but it isn’t using that power, says John Leshy, who was the top Department of Interior lawyer under the Clinton administration. "It’s absolutely clear that the agencies have discretion (about offering leases). It’s not that their hands are tied, it’s that they’re making a policy choice to accommodate industry."
Mark Rey, undersecretary of Agriculture, says that the government could rescind leases in roadless national forest tracts that gain permanent protection — provided there’s not already "a valid existing (lease) right." But leases are considered valid as soon as they’re issued, so the claim seems disingenuous. Undoing a valid lease requires an act of Congress, according to Christie Achenbach of the Forest Service. Or at least an act of the Interior secretary. Interior has bought or traded out leases on occasion; when President Clinton created the Grand Staircase-Escalante National Monument, the department spent nearly $20 million to buy back 53,000 acres of coal leases.
Ironically, the best hope for undoing leases may lie in the benevolence of industry itself. On Montana’s Rocky Mountain Front, companies recently donated or sold more than 10,000 acres of leases to conservation groups. The companies "made a decision that (drilling) is not worth the public backlash," Leshy says. Sen. Conrad Burns, R, has proposed a bill to uphold the ban on additional leasing on the Front and allow the government to permanently retire the transferred leases.