John D. Leshy—
What lessons and opportunities do our public lands—which occupy nearly one-third of the nation plus vast areas of submerged lands off our coasts—offer in addressing the interrelated challenges of climate change and biodiversity loss?
To meet these challenges, we know what we must do, broadly speaking. The economy must be decarbonized, and an increasing number of tools are available to do that. We also know how to protect biodiversity. The biggest problem is developing the political will to move forward—to recognize, in other words, that society’s collective, long-term interest must outweigh shorter-term, narrower interests that press in a contrary direction.
Today’s public lands are the best example I know of how, time and time again, our political system has done exactly that.
Since late in the nineteenth century, public land policymaking has been largely driven by a regard for the longer term, especially the interests of future generations. It was then that public opinion swung strongly in favor of the U.S. holding onto great swaths of land, rather than continuing to give them away to speculators, farmers and other settlers, miners, railroads, and other industrialists. (This was after—in most cases long after—the U.S. acquired title to these lands from Native Americans and foreign governments.)
The result has been a long string of political decisions by Congress and the Executive to hold more and more lands in national ownership (including acquiring lands from states and private owners) and to safeguard (or in a goodly number of cases, to restore) much of their natural capital. The result is plain to see: today, the vast majority of America’s public lands are kept free from intensive development and used mostly for public recreation, inspiration, scientific study, and preservation of natural and cultural values.
For years opinion polls have consistently shown that an overwhelming majority of people all around the nation, regardless of political party, strongly support this outcome. This has been, in other words, a political success story, particularly worth celebrating in our era of cynicism about America’s system of government.
Several myths have grown up about how all this happened. One is that forging public land policies have tended to divide Americans, especially along partisan lines. The truth is decidedly the contrary. Safeguarding public lands has for a long time commanded widespread support, with as many Republican as Democratic champions. Furthermore, almost all these decisions have enjoyed significant support at the grassroots, debunking the narrative that it has been a “land grab” by the distant national government over the objections of local people.
Altogether, then, it can be fairly said that today’s public lands represent some of the best thinking and acting in the interests of future generations that the American political system has ever produced.
This is a powerful and hopeful lesson for developing the political will needed to address current challenges, especially because the U.S. record of preserving large landscapes in public ownership has been very influential around the world. Many other countries have moved in the same direction. Increasingly, such actions are being taken in collaboration with the Indigenous Peoples whose homelands account for a large portion of the world’s remaining biodiversity.
There are other hopeful developments in recent years. While about a quarter of the nation’s fossil fuel production comes from public lands, proposals to open more lands to such exploitation usually triggers strong bipartisan opposition. A rare exception to this came in 2017, when the Trump Administration pushed through Congress, on a strict party-line vote, legislation allowing it to open the iconic Arctic National Wildlife Refuge in northern Alaska to petroleum development. But when the Administration finally auctioned off leases shortly before it left office in January 2021, the result was a giant bust. Major oil companies did not participate, partly fearing investor and public disapproval, and partly because development costs were high. One reason for the high cost is, ironically, rapidly melting permafrost, which makes installing needed infrastructure much more expensive. Rather than raise the billions of dollars its promoters had promised, the sale yielded a paltry $14 million in bids. Something similar happened not long after, when President Biden’s reversal of President Trump’s unprecedented removal of protections that his predecessors had established on public lands in southern Utah triggered little outcry.
Because intensive, industrial-style development is now legally prohibited or discouraged on most public lands, they comprise a large portion of the 12% of U.S. lands and 26% of U.S. marine areas whose biodiversity is currently considered protected. Thus, they play a prominent role in the Biden Administration’s America the Beautiful program, which aims at conserving 30% of the nation’s lands and waters by 2030. (Nearly all the world’s nations have endorsed the “30 by 30” goal.)
All that said, taking forceful action to decarbonize the economy poses a new challenge for public lands; namely, how to deal proposals to use them as sites for wind and solar energy production, for upgrading the transmission grid, and for extracting so-called “strategic” minerals like cobalt, lithium, nickel, and rare earths. Each of these can be important to the decarbonizing effort, even while they threaten biodiversity and other values served by these lands.
Such proposals usually trigger grassroots opposition, because practically every tract of public lands has friends resembling so-called NIMBY (“not in my backyard”) advocates. They may argue that sufficient sites for renewables are widely available off public lands (though this is much disputed), and that strategic minerals may be found in abundance elsewhere, including in friendly foreign nations, and anyway recycling and technological developments like lithium-free batteries are likely to reduce the demand for such substances. Similarly, advocates for protecting endangered whale species align with the commercial fishing industry and coastal NIMBY interests in opposing wind energy platforms offshore.
All this can put friends of public land protection—including national environmental groups who have long called for more protection of more public lands everywhere—in an uncomfortable position. As Bill McKibben and others underscoring the need to decarbonize have pointed out, allowing NIMBY-ism to triumph in such circumstances could well leave everyone, everywhere, worse off—a classic case of the perfect being the enemy of the good. In a related development, the push to decarbonize has also led to calls for reforming environmental laws like the iconic National Environmental Policy Act (NEPA). Congress has begun to move in that direction, thanks to an unwieldy coalition of climate activists and industrial interests who have long called for streamlining such laws.
Two other important developments in recent years further complicate how public land policymaking responds to climate change and biodiversity loss. One is the rising influence of Native Americans over management of public lands to which they have ancestral ties. This is nicely illustrated by President Biden’s appointment of Deb Haaland, the first Native American in history to serve in the Cabinet, to head the Interior Department, which houses three agencies (National Park Service, Fish & Wildlife Service, and Bureau of Land Management) that together manage most public lands. In general, the agendas of public land protection advocates and Native Americans overlap a great deal, and managing for biodiversity often benefits from the application of traditional ecological knowledge. But some difficult choices are required when their agendas do not align, as sometimes is the case, and can be further complicated when Native American governments disagree among themselves, which also sometimes happens.
The other development is the U.S. Supreme Court’s sharp turn toward more conservative activism. Since the 1890s the Court has generally refrained from intervening in the combined efforts of Congress and the Executive to hold and protect more and more public lands. But the current Court majority has shown no hesitation to reexamine longstanding precedent, and in 2021, Chief Justice Roberts suggested the Court might begin examining how presidents use the Antiquities Act of 1906. Since Congress enacted that landmark law authorizing presidents to protect features of historic and scientific interest on public lands, almost every Chief Executive—nine Republicans and nine Democrats—has used it to cumulatively protect more than one hundred million acres of public land onshore, and a much larger area offshore. In a long series of cases, the courts have turned back all challenges to these actions. If Roberts’s suggestion is followed, the federal courts could be much bigger players on this stage.
In short, while the history of public lands has been a great American political success story, considerable drama may ensue as policymakers confront the climate and biodiversity challenges.
John D. Leshy is emeritus professor, University of California College of the Law San Francisco. He was Solicitor (General Counsel) for the U.S. Department of the Interior from 1993 to 2001 and is coauthor of Federal Public Land and Resources Law, now in its eighth edition. Leshy’s Yale University Press publication, Our Common Ground: A History of America’s Public Lands, tells the little-known story of how the U.S. government came to hold nearly one-third of the nation’s land and manage it primarily for recreation, education, and conservation.
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