THE HILL 03/19/21
By Michael Shank
Undoing former President Donald Trump’s legacy of environmental damage and degradation — and his administration’s many regulatory rollbacks — has been high on President Joe Biden’s 100 days to-do list. The impressive lineup of environmental leaders appointed across energy, transportation, environment and interior departments and agencies indicates the seriousness of Biden’s green agenda. Many in the environmental movement are, rightly, hopeful.
There’s one area in particular, however, where the Biden administration could go further and maximize its environmental impact across agencies; it builds on Biden’s executive order to halt fossil fuel leasing on public lands and water. It sits within the Department of Interior (DOI), now headed by the historic confirmation of America’s first Native American secretary, Deb Haaland. It would start with federal lands and set an important legal rights-based precedent for how we approach and utilize these taxpayer-owned lands.
Here’s the proposal. Federal lands — also referred to as public lands — should be safe for the public and should not threaten or undermine public safety. That seems like a no-brainer. Further, anyone that compromises the public’s safety — and the public’s “right to be let alone,” which U.S. Supreme Court Justice Louis Brandeis noted were “the most comprehensive of rights” in his dissent in Olmstead v. United States — should be held accountable under the law.
This also seems like a no-brainer. Public lands should, indeed, be safe for the public. And yet they’re not. Public lands are some of the most exploited, extracted and unsafe lands in America — a reality made worse by the Trump administration. But it’s a legacy of heavy extraction that started long before Trump. A recent Government Accountability Office (GAO) report shows that many of the nearly 900 mining operations on federal lands aren’t subject to royalties — meaning that companies are not paying taxpayers for the benefits of drilling on public lands — nor are they required to produce data for the government to review.
This lack of transparency and accountability allows these mining operators — again, on public lands — to pollute and discharge excessive damaging effluents into “12,000 miles of American rivers and streams and 180,000 acres of lakes and reservoirs, destroying drinking-water supplies and crucial wildlife habitat.”
These private companies are operating freely within mining laws that haven’t been updated since the 1870s and extracting public resources on taxpayer-owned land. Not only are they not paying royalties for access to public resources, but they’re also polluting these public resources without paying cleanup costs.
For all these reasons and more, a lawsuit was recently filed in the U.S. District Court for the District of Oregon — and it’s currently being appealed to the U.S. Court of Appeals for the Ninth Circuit — that aims to establish legal protections for Americans when using publicly owned land, whether they’re doing scientific research, recreating socially or observing nature and its inhabitants.
It’s long past time that we update the old laws from the 1800s. This lawsuit, which aims to do that and set a new benchmark for treatment of public lands, was brought against the Trump administration’s DOI, the U.S. Department of Agriculture (DOA), the U.S. Department of Defense (DOD), the U.S. Environmental Protection Agency (EPA) and their secretaries.
It will now carry forward and apply to Biden’s administration. Filed by the Animal Legal Defense Fund and others, the lawsuit applies a rights-based framing and reaffirms what rightly should be perceived as citizens’ rights — and, by extension, the rights of nature and its inhabitants.
This latest effort to protect public lands isn’t new. President Theodore Roosevelt, an ardent protector of public lands, tried to set a standard for the right use of public lands, encouraging the preservation and right use of forests and the right use of waters. Roosevelt would be horrified with the exploitation, extraction and exhaustion of our public lands and with Trump’s last-minute selling off of oil drilling rights in the Arctic National Wildlife Refuge, just one example of how easily public lands can be exploited for private profit.
That’s why the lawsuit is so important and why Biden’s administration has an opportunity to lead here and return the rights of federally owned lands to the public. Biden put a freeze on new leases on public lands, but what about the old leases? What would it look like in practice if the lawsuit moves forward and successfully secures the right to be “let-alone” on public lands?
It would give Americans freedom from harm on those lands — including the harm from air pollution, water pollution, mining pollution, drilling pollution and more — and the right to clean air and clean water. Again, this seems like a no-brainer. And we have a history of rights-based advocacy on which this lawsuit builds: the right to vote, the right to bear arms, the right to marriage, the right to choose and the right to own property.
The freedoms won in the last century were pitched, packaged and positioned as rights owed to deserving and/or underserved communities. It’s an effective proposition, as Americans are fond of the Founders and their rights-based framing. The history of rights-based wins in court is arguably the most compelling story of progress in America.
Now it’s time to add to those rights: The right for humans to be let alone and the right of nature — and its inhabitants — to be let alone, too. That is why the ALDF v. U.S. lawsuit is so important. Now, more than ever, we need legal protections — and rights — to ensure that nature is left alone. Until we have a stronger legal foundation for the protection of the public and the natural environment, both will continue to be put in harm’s way.
It’s time for the Biden administration to strengthen the right to be let alone, in order to lock in environmental protection. This one move might be Biden’s most effective environmental play this term. We’ve made much progress in the past century. Now it’s time to make more.
Michael Shank is the communications director at the Carbon Neutral Cities Alliance and adjunct faculty at New York University’s Center for Global Affairs.