Summary:

BLM proposes “to rescind” the 2024 final “Conservation and Landscape Health Rule” adopted on May 9, 2024. Despite the promise in the 2024 final rule that it “defines the term ‘ecosystem resilience,’” no such definition actually is presented in the 2024 final rule. Instead, there are numerous references to such concepts as ecosystem health, the delivery of clean air and water, food and fiber, renewable energy, wildlife habitat, habitat connectivity, and old-growth forests. The 2024 final rule does not offer a definition of ecosystem “health” or a methodology with which to measure it at a given point in time or changes in it over time. Instead, BLM asserts in several passages that the management of public lands will be based upon “the best available science,” itself an obviously subjective metric even apart from the reality that “science” is not monolithic.

There always are alternative ways to measure physical parameters. Both the definition and use of “high-quality information” are subjective choice variables, and alternative data systems are likely to yield different conclusions. Accordingly, the implementation of the 2024 final rule inexorably would prove politicized, in particular because alternative approaches would further the interests of different groups with stakes in the analytic outcomes, and which would exert powerful political pressures that BLM would not be able to ignore. At the level of regulatory analysis and implementation, the choices among data measurements, the weights to be given alternatives, differing conclusions about “ecosystem health” and “ecosystem resilience” and the models needed to predict future outcomes of interest would prove subjective, and thus inexorably shaped by political pressures.

Because the BLM definition in the 2024 final rule of “ecosystem resilience” had multiple dimensions, there inevitably will exist conflicts — tradeoffs — among them. The 2024 final rule is silent about how such tradeoffs are to be valued, how different time patterns of the “delivery” of different ecosystem services will be valued and then discounted to present values, and a myriad of other parameters. Moreover, the absence in the 2024 final rule of minerals and energy resource development and production is glaring, and that rule offers no criteria for choices among the alternatives.

The 2024 final rule fails to specify a methodology with which the benefits and costs of alternative uses can be compared. BLM in 2024 attempted to circumvent this obvious problem by proposing a system of 10-year “restoration leases” and “mitigation leases.” The 2024 final rule failed to delineate how competing proposals for such leases are to be evaluated, necessarily leading to an ad hoc decision process that, again, will be politicized. Because the “ecosystem resilience” framework is poorly defined, it will exacerbate uncertainty and therefore the ability of policymakers and agency administrators to allocate resources on the basis of political criteria.

The 2024 final rule states that “conservation is a use on par with other uses of the public lands.” This requirement is inconsistent with the explicit language of the Federal Land Policy and Management Act of 1976, as amended. Moreover, the assertion in the 2024 final rule that “this rule does not meet the criteria” defining a Major Rule under the Congressional Review Act is clearly incorrect, in part because the assertion that the 2024 final rule “does not have an annual effect on the economy of $100 million or more” is almost certainly false.

The 2025 proposed rule is fully justified analytically and as a matter of sound policy, and should be finalized.