Bureau of Land Management

Renewable Energy Leasing on Public Lands

The Bureau of Land Management (BLM) is charged generally with managing the public lands for multiple uses under the Federal Land Policy and Management Act of 1976 (FLPMA), 43 U.S.C. 1701, et seq., including for mining and energy development. This general authority has been used to facilitate public land leases for renewable energy development.

In addition to this general authorization, Section 211 of the Energy Policy Act of 2005 (119 Stat. 660, Aug. 8, 2005) (EPAct), supports the development of renewable energy on public land, and directs the Secretary of the Interior to “seek to have approved non-hydropower renewable energy projects located on the public lands with a generation capacity of at least 10,000 megawatts of electricity” before 2015.

Finally, as a general matter, FLPMA requires BLM to seek fair market value for private uses of public lands. However, the Energy Act of 2020, 43 U.S.C. 3003, introduced a new exception to FLPMA’s fair market value requirement. This Act allows BLM, on behalf of the Secretary of the Interior, to “reduce acreage rental rates and capacity fees, or both, for existing and new wind and solar authorizations” if the agency makes certain findings, which can include that the existing rates “impose economic hardships” or “limit commercial interest in a competitive lease sale or right-of-way grant,” or “that a reduced rental rate or capacity fee is necessary to promote the greatest use of wind and solar energy resources.”

On May 1, 2024, BLM issued a final regulation updating procedures governing BLM’s renewable energy and right-of-way programs. (89 Fed. Reg. 35634, May 1, 2024). The final regulation focuses on two areas. First, the regulation implements new BLM authority under the Energy Act of 2020 to “reduce acreage rental rates and capacity fees, or both, for existing and new wind and solar authorizations.” Second, the regulation “expand[s] agency discretion to process applications for solar and wind energy generation rights-of-way inside designated leasing areas – areas identified under existing BLM plans with high potential for renewable energy production and few conflicts with other resources or uses. Following issuance, the rule was subject to several minor technical corrections. ((89 Fed. Reg. 53869, June 28, 2024); (89 Fed. Reg. 104889, Dec. 26, 2024))

Biden Administration (2021-2025)

Rights-of-Way, Leasing, and Operations for Renewable Energy

On May 1, 2024, BLM issued a final regulation updating procedures governing BLM’s renewable energy and right-of-way programs. (89 Fed. Reg. 35634, May 1, 2024). The final regulation focuses on two areas. First, the regulation implements new BLM authority under the Energy Act of 2020 to “reduce acreage rental rates and capacity fees, or both, for existing and new wind and solar authorizations.” Second, the regulation “expand[s] agency discretion to process applications for solar and wind energy generation rights-of-way inside designated leasing areas – areas identified under existing BLM plans with high potential for renewable energy production and few conflicts with other resources or uses. Following issuance, the rule was subject to several minor technical corrections. ((89 Fed. Reg. 53869, June 28, 2024); (89 Fed. Reg. 104889, Dec. 26, 2024))

First Trump Administration (2017-2021)

N/A

Obama Administration (2009-2017)

Competitive Processes, Terms, and Conditions for Leasing Public Lands for Solar and Wind Energy Development

On December 19, 2016, BLM issued a final rule amending its regulations governing rights-of-way issued under FLPMA. (81 Fed. Reg. 92122, Dec. 19, 2016). As BLM explained in its final rulemaking, “[t]he principal purposes of these amendments are to facilitate responsible solar and wind energy development on BLM-managed public lands and to ensure that the American taxpayer receives fair market value for such development.”

Segregation of Lands for Renewable Energy Development

On April 30, 2013, BLM issued a final rule to allow the BLM to segregate public lands intended for a current or future wind or solar energy right-of-way (ROW) application. (78 Fed. Reg. 25204, Apr. 30, 2013). This rule prevents designated renewable energy development land from being appropriated for other competing uses (such as under the Mining Law of 1872) for up to two years, subject to extensions. The purpose of this rule was to give priority to renewable energy development by eliminating competing claims and applications for other uses of the public land (i.e. mining).

This rule was first proposed on May 26, 2011. (76 Fed. Reg. 23230, May 26, 2011). On the same day, the Bureau of Land Management issued an interim temporary final rule enforcing the proposed amendment for a period of up to two years. (76 Fed. Reg. 23198, May 26, 2011).

Secretarial Order 3285 (Renewable Energy Development by the Department of the Interior)

Secretarial Order 3285, issued on March 11, 2009, established the development of renewable energy as a priority for the Department of the Interior.

Secretarial Order 3283 (Assignment of Renewable Energy Generation Responsibilities)

Secretarial Order 3283 was issued on January 16, 2009 to specify the Department of the Interior’s responsibilities to accomplish the goal laid out in Section 211 of EPAct. This section states the provision to approve non-hydropower renewable energy projects on public lands with a total combined generation capacity of at least 10,000 MW of electricity by 2015 (Section 211, Public Law 109-58, 119 Stat. 660 (2005)). 

 

 

Conservation Leasing of Public Lands

The Federal Land Policy and Management Act of 1976 (FLPMA) requires that unless “public land has been dedicated to specific uses according to any other provisions of law,” the Secretary of the Interior, through the Bureau of Land Management (BLM), must “manage the public lands under principles of multiple use and sustained yield, in accordance with the land use plans developed by [the Secretary] under section 202 of this Act when they are available” (43 U.S.C. 1732(a)).

The term “sustained yield” means “the achievement and maintenance in perpetuity of a high-level annual or regular periodic output of the various renewable resources of the public lands consistent with multiple use” (43 U.S.C. 1702(h)). The term “multiple use” means “the management of the public lands and their various resource values so that they are utilized in the combination that will best meet the present and future needs of the American people; making the most judicious use of the land for some or all of these resources or related services over areas large enough to provide sufficient latitude for periodic adjustments in use to conform to changing needs and conditions; the use of some land for less than all of the resources; a combination of balanced and diverse resource uses that takes into account the long-term needs of future generations for renewable and nonrenewable resources, including, but not limited to, recreation, range, timber, minerals, watershed, wildlife and fish, and natural scenic, scientific and historical values; and harmonious and coordinated management of the various resources without permanent impairment of the productivity of the land and the quality of the environment with consideration being given to the relative values of the resources and not necessarily to the combination of uses that will give the greatest economic return or the greatest unit output.” (43 U.S.C. 1702(c)).

FLPMA also directs the BLM to “take any action necessary to prevent unnecessary or undue degradation of the lands.” (43 U.S.C. 1732(b)). Additionally, section 102(a)(8) of FLPMA declares that it is the policy of the United States that “the public lands be managed in a manner that will protect the quality of scientific, scenic, historical, ecological, environmental, air and atmospheric, water resource, and archeological values; that, where appropriate, will preserve and protect certain public lands in their natural condition; that will provide food and habitat for fish and wildlife and domestic animals; and that will provide for outdoor recreation and human occupancy and use” (43 U.S.C. 1701(a)(8)). Many of these resources and values that FLPMA authorizes the BLM to safeguard emanate from functioning and productive native ecosystems that supply food, water, habitat, and other ecological necessities.

On May 9, 2024, BLM issued a final rule, entitled "Conservation and Landscape Health," which significantly revises BLM's land management regulations. (89 Fed. Reg. 40308, May 9, 2024). The final rule provides that the BLM will protect intact landscapes, restore degraded habitat, and make wise management decisions based on science and data. To support these activities, the proposed rule would apply land health standards to all BLM-managed public lands and uses, clarify that conservation is a “use” within FLPMA's multiple-use framework, and revise existing regulations to better meet FLPMA's requirement that the BLM prioritize designating and protecting Areas of Critical Environmental Concern (ACECs). The proposed rule would create an overarching framework for multiple BLM programs to promote ecosystem resilience on public lands.

BLM's recognition of conservation as a legitimate "use" of public land under the FLPMA may have significant implications for climate change mitigation and adaptation. Consistent with how the BLM promotes and administers other uses, the proposed rule establishes a durable mechanism, conservation leases, to promote both protection and restoration on the public lands, while providing opportunities for engaging the public in the management of public lands for this purpose.

Biden Administration (2021-2025)

Conservation and Landscape Health Regulation

On May 9, 2024, BLM issued a final rule, entitled "Conservation and Landscape Health," which significantly revises BLM's land management regulations. (89 Fed. Reg. 40308, May 9, 2024). The final rule provides that the BLM will protect intact landscapes, restore degraded habitat, and make wise management decisions based on science and data. To support these activities, the proposed rule would apply land health standards to all BLM-managed public lands and uses, clarify that conservation is a “use” within FLPMA's multiple-use framework, and revise existing regulations to better meet FLPMA's requirement that the BLM prioritize designating and protecting Areas of Critical Environmental Concern (ACECs). The proposed rule would create an overarching framework for multiple BLM programs to promote ecosystem resilience on public lands.

BLM's recognition of conservation as a legitimate "use" of public land under the FLPMA may have significant implications for climate change mitigation and adaptation. Consistent with how the BLM promotes and administers other uses, the proposed rule establishes a durable mechanism, conservation leases, to promote both protection and restoration on the public lands, while providing opportunities for engaging the public in the management of public lands for this purpose.

This regulation was subject to litigation. (See North Dakota v. U.S. Department of Interior in "Litigation" below)

First Trump Administration (2017-2021)

Congressional Review Act Nullification of Land Use Planning 2.0 Rule

On March 27, 2017, the 115th Congress overruled the Land Use Planning 2.0 Rule under the Congressional Review Act (CRA) (5 U.S.C. 801 et seq.), which allows Congress to review, and nullify, agency actions taken under delegated Congressional authority in a short window following the regulation's finalization. If a regulation is reversed under the CRA, the agency is prohibited from passing a regulation that is "substantially the same" as a disapproved rule. (5 U.S.C. 801(b)(2))

  • Congressional overrule of the Land Use Planning 2.0 Rule (P.L. 115-12, March 27, 2017)

Obama Administration (2009-2017)

"Land Use Planning 2.0" Rule

On December 12, 2016, BLM published a final rule entitled "Resource Management Planning," also known as the "Land Use Planning 2.0" rule. (81 Fed. Reg. 89580, Dec. 12, 2016). The rule was intended to:

  1. Give BLM flexibility to plan across traditional administrative boundaries and implement landscape-level management approaches,
  2. Introduce new guidelines aimed at ensuring that BLM officials incorporate the most current data and technology into their plans and reviews, and 
  3. Provide more opportunities for input from state and local governments and the public during the planning process.  

BLM stated that the rule would enable it to more readily address resource issues at a variety of scales, such as wildfire, wildlife habitat, appropriate development, or the demand for renewable and non-renewable energy sources, and to respond more effectively to change (including climate change).

Litigation

North Dakota v. U.S. Department of Interior

On June 21, 2024, North Dakota, Idaho, and Montana filed a lawsuit in federal district court in North Dakota challenging BLM's final “Conservation and Landscape Health” rule, which the three states characterized as “part of BLM’s broader initiative to use statutory authority given to the Agency for facilitate the development of public resources into a policy of obstructing and preventing the development of these resources for climate change reasons.” The states asserted that the rule violated FLPMA, including because it unlawfully elevated “conservation” as a “use” under FLPMA’s “multiple use framework,” was inconsistent with the states’ Natural Resources Management Plans, and did not comply with FLPMA procedural requirements. In addition, the states asserted violations of the Congressional Review Act (CRA) (because the rule is “substantially similar” to the Obama administration’s 2.0 Planning Rule, which was rejected under the CRA), NEPA, and the Mineral Leasing Act. The states also asserted that the rule was arbitrary and capricious.

Carbon Sequestration on Public Lands

Title V of the Federal Land Policy and Management Act of 1976 (FLPMA), (as amended, 43 U.S.C. 1761 et seq.), authorizes the Department of the Interior (acting through the Bureau of Land Management (BLM)) to grant, issue, and renew rights-of-way on public lands for a variety of purposes. These purposes include, among others, (1) “pipelines and other systems for the transportation or distribution of liquids and gases, other than water and other than oil, natural gas, synthetic liquid or gaseous fuels, or any refined product produced therefrom, and for storage and terminal facilities in connection therewith,” and (2) “necessary transportation or other systems or facilities, including any temporary or short-term surface disturbing activities associated with approved systems or facilities, which are in the public interest and which require rights-of-way.” 43 U.S.C. 1761(a)(2), (7).

On June 8, 2022, BLM published an Instruction Memorandum (IM 2022-041) for authorizing rights-of-way to use public lands for site characterization, transportation, injection, capture, and geologic sequestration of carbon dioxide (CO2) in connection with CO2 sequestration projects. Crucially, the memorandum reflects BLM’s position that “Title V of FLPMA and its implementing regulations, 43 CFR Part 2800, authorize the BLM to issue [rights-of-way] to geologically sequester CO2 in federal pore space, including for necessary physical infrastructure and for the use and occupancy of the pore space itself.” The memorandum contains various policies and directives in connection with such authorizations.

On June 8, 2022, BLM published an Instruction Memorandum (IM 2022-041) for authorizing rights-of-way to use public lands for site characterization, transportation, injection, capture, and geologic sequestration of carbon dioxide (CO2) in connection with CO2 sequestration projects. Crucially, the memorandum reflects BLM’s position that “Title V of FLPMA and its implementing regulations, 43 CFR Part 2800, authorize the BLM to issue [rights-of-way] to geologically sequester CO2 in federal pore space, including for necessary physical infrastructure and for the use and occupancy of the pore space itself.” The memorandum contains various policies and directives in connection with such authorizations.

Methane Waste from Fossil Fuel Development on Public Lands

The Bureau of Land Management (BLM) administers fossil fuel leasing programs on public lands under a variety of statutes, including the Mineral Leasing Act, the Federal Land Policy and Management Act, and the Indian Mineral Development Act. These statutes take different forms, but generally require BLM to prevent waste and collect royalty payments from oil and gas development on Federal lands and requires BLM to act as trustee for the benefit of Native American mineral rights. For example, the Mineral Leasing Act of 1920 requires the BLM to ensure that lessees “use all reasonable precautions to prevent waste of oil or gas developed in the land,” 30 U.S.C. 225, and that leases include “a provision that such rules . . . for the prevention of undue waste as may be prescribed by [the] Secretary shall be observed,” id. at § 187. Under this authority, BLM has taken several actions in the past decade to reduce wasteful flaring and leakage from oil and gas operations on public lands.

Since 1980, BLM has controlled waste from public land leases under “Notice to Lessees and Operators of Onshore Federal and Indian Oil and Gas Leases: Royalty or Compensation for Oil and Gas Lost” (NTL-4A). Attempts to reduce waste from methane flaring and leakage have been the subject of significant regulation, deregulation, and litigation between the Obama Administration, the first Trump Administration, and the Biden Administration.

On April 10, 2024, the Department of the Interior's Bureau of Land Management ("BLM") published final rules designed to reduce the waste of natural gas from venting, flaring, and leaks during oil and gas production activities on Federal and Indian leases. (89 Fed. Reg. 25378, Apr. 10, 2024). The final rule also ensures that, when Federal or Indian gas is wasted, the public and Indian mineral owners are compensated for that wasted gas through royalty payments. In addition to its direct pecuniary benefits to the public, using standard assumptions around the social cost of greenhouse gases, BLM estimates that the final rule will prevent $17.9 million worth of climate damage from methane releases each year.

For additional analysis of this regulation, read our post on the Sabin Center’s Climate Law Blog about the impacts of this rule.

This regulation is subject to significant litigation. (See North Dakota v. U.S. Department of the Interior in “Litigation” below)

Biden Administration (2021-2025)

Methane Venting and Flaring Rule

On April 10, 2024, the Department of the Interior's Bureau of Land Management ("BLM") published final rules designed to reduce the waste of natural gas from venting, flaring, and leaks during oil and gas production activities on Federal and Indian leases. (89 Fed. Reg. 25378, Apr. 10, 2024). The final rule also ensures that, when Federal or Indian gas is wasted, the public and Indian mineral owners are compensated for that wasted gas through royalty payments. In addition to its direct pecuniary benefits to the public, using standard assumptions around the social cost of greenhouse gases, BLM estimates that the final rule will prevent $17.9 million worth of climate damage from methane releases each year.

The final rule will have a significantly smaller climate impact than was initially projected in BLM’s proposed rulemaking, issued on November 30, 2022, which anticipated producing social benefits of $427 million per year from reduced greenhouse gas emissions. (87 Fed. Reg. 73588, Nov. 30, 2022). These reduced benefits are, in part, a result of related air pollution regulation by the Environmental Protection Agency, and in part a response to comments made during the rulemaking process. 

For additional analysis of this regulation, read our post on the Sabin Center’s Climate Law Blog about the impacts of this rule.

This regulation is subject to significant litigation. (See North Dakota v. U.S. Department of the Interior in “Litigation” below)

Inflation Reduction Act

On August 16, 2022, President Biden signed the Inflation Reduction Act ("IRA"). (Pub. L. 117-169, Aug. 16, 2022) Section 50263 of the IRA is entitled, “Royalties on All Extracted Methane,” and provides that royalties are owed on all gas produced from Federal land, including gas that is consumed or lost by venting, flaring, or negligent releases through any equipment during upstream operations. This statute demanded a revised push to quantify and prevent methane waste and flaring from operations on public lands.

First Trump Administration (2017-2021)

Rescission of the Waste Prevention Rule

On September 18, 2018, BLM issued a final rule substantially revoking the 2016 Methane Waste Prevention Rule. (83 FR 49184, Sept. 18, 2018). BLM justified this revocation as “reduc[ing] unnecessary compliance burdens,” and argued that the rule “would have added regulatory burdens that unnecessarily encumber energy production, constrain economic growth, and prevent job creation.”

For additional analysis of this regulation, read our post on the Sabin Center’s Climate Law Blog about the impacts of this rule.

This regulation was subject to significant litigation. (See California v. Bernhardt in “Litigation” below).

Attempted Postponement of Methane Waste Prevention Rule

On June 15, 2017, BLM announced that it was postponing the compliance dates for certain provisions of the 2016 Methane Waste Prevention Rule issued under the Obama Administration. (82 Fed. Reg. 27430, June 15, 2017). BLM justified this postponement by arguing that it was delaying the compliance dates pending the outcome of litigation over the rule. On December 8, 2017, BLM issued a final rule postponing several key requirements of the Methane Waste Prevention Rule until January 17, 2019. (82 Fed. Reg. 58050, Dec. 8, 2017).

This attempted postponement was subject to significant litigation (See “Attempted Postponement of 2016 Methane Waste Rule” in “Litigation” below).

Executive Order and Secretarial Order Directing Deregulation

On March 28, 2017, President Trump issued Executive Order 13783 (Promoting Energy Independence and Economic Growth), which directed the Department of the Interior to “immediately review existing regulations that potentially burden the development or use of domestically produced energy resources and appropriately suspend, revise, or rescind those that unduly burden the development of domestic energy resources beyond the degree necessary to protect the public interest or otherwise comply with the law.” In particular, Section 7(b)(iv) of EO 13783 directed BLM to review and, “and, if appropriate, shall, as soon as practicable […] publish for notice and comment proposed rules suspending, revising, or rescinding” the 2016 Waste Prevention Rule.

Obama Administration (2009-2017)

Methane Waste Prevention Rule

On November 18, 2016, BLM issued the Methane Waste Prevention Rule to reduce waste of natural gas (methane) from oil and natural gas production activities on federal and tribal land. (79 Fed. Reg. 23923, Nov. 18, 2016). The regulation was designed to replace NTL-4A, BLM guidance to lessees implemented in 1980. The rule included new requirements for flaring, capture, leak detection, and venting and, according to BLM, could eliminate 175,000-180,000 tons of waste methane emissions annually (equivalent to 4.4-4.5 million metric tons of carbon dioxide).

This rule was subject to significant litigation. (See Wyoming v. Department of the Interior in “Litigation” below).

Waste Mine Methane Capture, Use, Sale, or Destruction (Coal and Other Minerals)

On April 29, 2014 the Bureau of Land Management published an advance notice of proposed rulemaking to establish a program which would “capture, use, or destroy waste mine methane that is released into the mine environment and the atmosphere as a direct consequence of underground mining operations.” (79 Fed. Reg. 23923, Apr. 29, 2014). In addition to improving the safety and health of miners, this proposed rule would reduce mine methane leakage into the atmosphere, reducing greenhouse gas emissions.

The primary goal of the advance notice was to request comments and suggestions that might assist the agency in the establishment of a program to capture, use, or destroy waste mine methane that is released into the mine environment and the atmosphere as a direct consequence of underground mining operations on Federal leases for coal and other minerals.

Following this advanced notice, BLM failed to issue a related rule. (See docket, RIN-1004-AE23).

Litigation

North Dakota v. U.S. Department of the Interior

On April 24, 2024, North Dakota, Montana, Texas, and Wyoming filed a lawsuit in federal district court in North Dakota challenging BLM’s 2024 Methane Venting and Flaring Rule. The four states alleged that the rule was “BLM’s second attempt to play the role of the Environmental Protection Agency … and use statutory authority given to the agency for the purpose of preventing the waste of federally owned oil and gas to promulgate sweeping greenhouse gas emission controls for putative climate change purposes,” as well as to expand federal regulation of State- and privately owned oil and gas. The states alleged that “very little has been done” to change the rule from a rule promulgated during the Obama administration that was vacated by the District of Wyoming in 2020, and that, “[i]f anything, this variation … is brazenly more unlawful than the one previously vacated.” The states asserted that the rule exceeded BLM’s authority under the Mineral Leasing Act and Federal Oil and Gas Royalty Management Act, that it violated the Clean Air Act and Federal Land Policy and Management Act, and that it was arbitrary and capricious.

California v. Bernhardt

Following the Trump Administration’s repeal of the 2016 Methane Waste Prevention Rule, separate lawsuits challenging the appeal were filed by the states of California and New Mexico and by a number of environmental groups led by Sierra Club. The groups asserted claims under the Mineral Leasing Act, the Federal Land Policy and Management Act, NEPA, and the Administrative Procedure Act. Their complaint alleged that BLM’s use of an interim social cost of methane excluded significant domestic and global impacts, and would have a number of adverse effects not considered in the rulemaking.

On July 15, 2020, the U.S. District Court for the Northern District of California vacated the 2018 rescission of the Methane Waste Prevention Rule. On September 14, 2020, BLM appealed the decision to the Ninth Circuit.

Attempted Postponement of 2016 Methane Waste Rule

On July 5, 2017, the States of California and New Mexico filed suit in the U.S. District Court for the Northern District of California, challenging BLM’s first decision to postpone certain compliance dates of the 2016 Methane Waste Prevention Rule. A second suit challenging BLM’s decision was filed by 17 environmental groups (led by the Sierra Club) on July 10, 2017. On October 4, 2017, the U.S. District Court for the Northern District of California issued a decision vacating the postponement notice, thereby reinstating the original deadlines for compliance with the rule.

On December 19, 2017, the States of California and New Mexico sued the administration, challenging issuance of the December 2017 rule postponing implementation of the Methane Waste Prevention Rule. A second suit challenging the rule was filed by 17 conservation and tribal citizens groups. On February 22, 2018, the U.S. District Court for the Northern District of California granted a preliminary injunction enjoining BLM from enforcing the December 2017 postponement rule. On March 28, 2019, the parties jointly agreed to dismiss the case because the December 2017 suspension order was no longer in effect.   

Wyoming v. Department of the Interior

In November of 2016, two petitions were filed in the federal district court for the District of Wyoming challenged the final rule issued by BLM under the Obama Administration concerning methane emissions from oil and gas operations on federal and tribal lands.

(See “Methane Waste Prevention Rule” above).

The “Waste Prevention Rule” was ultimately vacated by the court on October 8, 2020, which held that BLM exceeded its statutory authority by adopting a rule designed with the “principle purpose and intent” of “curb[ing] air emissions, rather than regulating mineral use, and that BLM therefore intruded on the purview of the EPA and states under the Clean Air Act.. However, on appeal this opinion was vacated by the Tenth Circuit Court of Appeals in 2024 after the parties agreed that the challenged rule was mooted by subsequent regulation.