Abstract

The world is facing unprecedented species extinctions, wrought in large part by climate change. Slashing greenhouse gas emissions is one crucial response to the climate/biodiversity crisis. The conservation of intact ecosystems and the life-sustaining services they provide is another. This goal will be beyond reach if conservation commitments do not cover federal public lands, particularly multiple use lands. The Bureau of Land Management (“BLM”) has recently proposed a pathbreaking new rule that explicitly defines conservation as a multiple use. In doing so, the Conservation and Landscape Health Public Lands Rule (“Conservation Rule”) puts conservation on par with other statutorily listed uses and effectuates an underutilized statutory requirement to “protect certain public lands in their natural condition.” Extractive resource users characterize the new rule as a violent break with past management practices and the BLM’s statutory mandate. When the new rule is challenged, courts will either defer to the BLM’s reasonable interpretation of the statute or review the rule de novo. This Article considers how recent Supreme Court precedent on judicial review of agency rulemaking (Sackett v. EPA and West Virginia v. EPA) may impact the fate of the Conservation Rule. Drawing upon the Property Clause and the concept of “multiple use” as deployed in federal statutes and a long line of precedent, this Article concludes that the Conservation Rule is not only timely and important, but that it is also well within statutory parameters and warrants deference from reviewing courts.

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