The United States has a rich body of Federal environmental and natural resource law that has developed over the years through all three branches of government:
- Legislative Branch — laws passed by Congress
- Judicial Branch — cases decided by the courts
- Executive Branch — Executive orders and Federal agency regulations or rules.
Knowing the law is essential for participating in management of federal lands. Having easy access to that knowledge helps everyone to participate more effectively in collaborative processes.
Law used to be somewhat of a mystery because legal information was only available at the specialty law libraries and from expensive on-line services. Today, many of the laws, regulations and other federal policy documents that can help individuals understand issues and procedures are available on the internet. Some of these are easier to access than others, but if you know where to look, most everything is available.
Many useful guides are available to help understand how federal laws are developed and implemented. See, for example, two publications from American Forests' Forest Policy Center: The Federal Budget Process and The Federal Appropriations Process.
In many instances, legal rules that apply to collaborative conservation initiatives relate to broader notions of "good government" and public participation than to specific natural resources or environmental protection. See the policy report titled "The Legal Framework for Cooperative Conservation" (Univ. Mont. Public Policy Research Inst., 2006) for an overview of these rules and how they influence the institutions governing public resource management. See also President Obama's memo titled "Transparency and Open Government," which proclaims that “Executive departments and agencies should use innovative tools, methods, and systems to cooperate among themselves, across all levels of Government, and with nonprofit organizations, businesses, and individuals in the private sector.”
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Click here to download pdf report.
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Last Updated ( Wednesday, 13 January 2010 )
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The Antiquities Act of 1906, codified with amendments at
16 U.S.C. §§ 431-33 (2008), allows the president to issue proclamations designating land as national monuments. Such monuments are permanent and can be made without congressional or citizen input. Congress can also create monuments or incorporate existing monuments into other land protection systems, although such actions would be taken outside the scope of the Antiquities Act.
Antiquities Act proclamations generally provide for a level of protection necessary for “proper care and management” of the monument. Additional protection for a given monument is provided by the laws governing the federal agency that manages it. The National Park Service (NPS), the Bureau of Land Management (BLM), the U.S. Forest Service (Forest Service), and the U.S. Fish and Wildlife Service (USFWS) all manage monuments as part of their respective land protection systems, and other state and federal agencies are also involved in the management of some monuments.
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Last Updated ( Monday, 09 November 2009 )
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 Biomass is the largest source of renewable energy in the U.S., accounting for 48 percent of the aggregate renewable energy in 2006. Biomass is used for heating, transportation fuels (known as biofuels), cooking stoves, and electricity. According to Section 932 of the Energy Policy Act of 2005, biomass is “any organic material grown for the purpose of being converted to energy.” However, under different proposed and existing Renewable Portfolio Standards (RPS), definitions for qualifying biomass exclude certain sources. For example, the definition of biomass under the Energy Independence and Security Act of 2007 (EISA) excludes wood harvested from federal lands, but the American Clean Energy and Security Act (ACES) that passed the House of Representatives in June of 2009 seeks to include wood from federal lands. For a synopsis of biomass types that qualify for New York State’s RPS click here. Qualifying biomass is usually required to be sustainably harvested. That is, it must be able to regenerate in relatively short time periods, and the emissions released when biomass is combusted be stored by replacement biomass. The major biomass sources are wood, waste, and crops.
Policies aimed at promoting biomas energy production provoke various responses from conservation groups. See, for example, "Biomass has pitfalls as well as benefits for Montana," a guest column by Joe Kerkvliet of The Wilderness Sociiety on Headwaters News, 1/27/10.
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Last Updated ( Thursday, 28 January 2010 )
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The Clean Air Act (CAA) is the core law that establishes a comprehensive national program for reducing emissions from factories, cars, and other sources in order to protect human health and the environment. The law directs the federal Environmental Protection Agency (EPA) to establish national clean air standards, but then gives the states and tribes an opportunity to take a lead role in meeting those standards. The law also gives EPA the responsibility for setting emissions limits for many sources of pollution, including cars and trucks (mobile sources) as well as factories and power plants (stationary sources). Both EPA and the states can go to court to enforce air quality laws; in addition, citizens and businesses can challenge many EPA decisions in court.
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Last Updated ( Monday, 08 February 2010 )
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The Clean Water Act (CWA) is the common name for the 1977 amendments to the Federal Water Pollution Control Act of 1972 (FWPCA). The objective of the CWA is to restore and maintain the chemical, physical, and biological integrity of the Nation's waters. The 1977 law continued the FWPCA requirements to set water quality standards for all surface waters. It also established the basic structure for regulating discharges of pollutants into the waters of the United States and for addressing problems of nonpoint source pollution. The CWA gave the Environmental Protection Agency (EPA) authority to implement pollution control programs and to delegate those programs to states and tribes. The 1977 law and several subsequent amendments also established funding mechanisms for construction of sewage treatment plants.
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Last Updated ( Tuesday, 26 January 2010 )
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A conservation easement is a voluntary, but legally enforceable,
agreement in which a landowner agrees to restrict future use or
development on his or her property in order to achieve conservation
goals. Conservation might include preservation of wildlife habitat,
agricultural land, or an historic site, or protection of scenic views
and open space. The agreement is typically made with a governmental
entity or non-governmental organization like a land trust. That party
is then responsible for enforcing the restrictions—seeing that the
landowner follows the agreement.
Conservation easements are donated by or purchased from the landowner
and recorded as deed restrictions that "run with the land" for a
specified period or, more commonly, in perpetuity.
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Last Updated ( Friday, 05 February 2010 )
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The Endangered Species Act (ESA) is one of the most powerful of this nation's environmental laws. Passed in 1973, the act's purpose is to both conserve and restore species that have been listed by the federal government as either endangered or threatened (referred to as "listed" species). The act has several provisions that promote those goals:
- First, the act broadly prohibits anyone from doing anything that would kill, harm, or harass an endangered species. Those prohibitions even apply when listed animal species are on private lands.
- Second, federal agencies have a special obligation to ensure that they do nothing that would harm a listed species. That obligation significantly affects activities on federal lands, like grazing, logging, and mining. But it also means that a federal agency has to assess whether its actions could affect a listed species before the agency signs off on projects like a new highway or a dam on non-federal land.
- Third, the act tells federal agencies to develop plans that show how the listed species could be restored—or "recovered"—so that it no longer needs the act's protections ("delisted").
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Last Updated ( Monday, 08 February 2010 )
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The Farm Security and Rural Investment Act of 2002 (the Farm Bill) is along, complex law dealing with everything from farm loans, credit and subsidies, trade, energy, nutrition and research to rural development,forestry and agricultural conservation programs which amended the Food Security Act of 1985. Renewed every six years, the Farm Bill authorizes the U.S. Department of Agriculture (USDA) to establish and fund environmentally friendly practices on forested and non-forested agricultural land and to establish conservation reserves. While not specifically designed to support collaborative efforts, Farm Bill funding and technical advice can support public-private partnerships for conservation.
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Last Updated ( Thursday, 08 October 2009 )
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Congress passed the Federal Advisory Committee Act (FACA) to open up the process through which non-government groups give advice to federal agencies, Congress, and the president. Federal advisory committees play an important role in shaping public policy by providing advice on a wide array of issues, such as stem cell research, drinking water standards, space exploration, drug approvals, and federal land management. About 950 advisory committees perform peer reviews of scientific research; offer advice on policy issues; identify long-range issues; and evaluate grant proposals, among other functions.
The law and its regulations provide detailed rules for creating and operating official committees that advise the federal government. These rules include special requirements for balancing committee memberships, conducting open meetings, and keeping detailed records. These rules are designed to limit the influence (at least the behind-the-scenes influence) of special interest groups on federal agencies and the president. FACA does not apply to individuals and many groups — including most collaborative groups — giving advice. The following descriptions focus specifically on groups that advise federal agencies, but many of the rules apply to congressional and presidential advisory groups as well.
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Last Updated ( Tuesday, 01 December 2009 )
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The Federal Land Policy Management Act of 1976 (FLPMA) is the principal law governing how the Bureau of Land Management (BLM) manages public lands. It guides the BLM in management, protection, development, and enhancement of the public lands. FLPMA specifically requires the agency to manage for the multiple use and sustained yield of public land resources for both present and future generations
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Last Updated ( Wednesday, 20 January 2010 )
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Mineral extraction in the United States is governed by various federal and state mining, land use, and environmental laws, depending in large part on the type of minerals being extracted and who owns the land. Minerals are generally categorized as locatable, leasable or saleable minerals. This section of RLCH LAWs focuses on the law regarding development of locatable (also known as hardrock) minerals on federal lands. The General Mining Law of 1872, the organic acts of the various federal land management agencies, and federal and state environmental statutes control development of these minerals.
For information on development of oil and gas, which are leasable minerals, see the Oil and Gas Resource Development section.
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Last Updated ( Wednesday, 03 February 2010 )
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The Healthy Forests Restoration Act of 2003 significantly changed the way the Forest Service and the Bureau of Land Management can do fuel reduction projects to reduce the risk of catastrophic fire. In addition to specifying how special fuels reduction projects should be created and implemented, the law also promotes use of biomass and small diameter materials; creates a forest reserve program; provides technical assistance for private landowners; and addresses insect infestations and other environmental threats to healthy forests. While the new law changed the rules for fuels reduction projects, it did not include money for project implemention, consequently, doing fuel reduction projects, funding for agency projects under the program is still a challenge. |
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Last Updated ( Thursday, 28 January 2010 )
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The National Environmental Policy Act (NEPA) is the nation's basic environmental law that applies to almost
all actions taken by — or approved by — federal agencies. The first part of NEPA (section 101) establishes broad
environmental goals for the nation. The second part (section 102) contains the statute's requirements for agency
actions. Its principle is that federal agencies should "look before they leap." Thus, NEPA requires that before
federal agencies take a major action, they must disclose the environmental impacts of their proposed action and
evaluate alternatives that would have fewer environmental costs. NEPA requirements apply to all agencies of the
federal government, but not to Congress, the courts, or the President.
As noted in a presidential proclamation, NEPA celebrated its 40th anniversary on January 1, 2010.
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Last Updated ( Wednesday, 20 January 2010 )
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The U. S. Forest Service in the Department of Agriculture manages our national forests in compliance with federal laws, presidential and agency policy directives (including the agency's own rules), and legal precedents created by court cases. The principal federal laws directing management of the national forests are:
- Transfer Act of 1905;
- Multiple Use-Sustained Yield Act of 1960;
- Forest and Rangeland Renewable Resources Planning Act of 1974; and
- National Forest Management Act of 1976.
The General Land Law Revision Act of 1891 gave the president authority to "set aside and reserve...any part of the public lands wholly or partly covered with timber or undergrowth, whether of commercial value or not," but did not explicitly authorize the use or development of resources on the reserved lands. That year, President Benjamin Harrison created the Yellowstone Park Forest Reserve, and in 1897, President Grover Cleveland added 13 additional reserves. Congress subsequently enacted the Organic Administration Act of 1897 authorizing the Secretary of the Interior to administer the reserved forest lands and opening them to regulated use. The Transfer Act of 1905 transferred administration of the forest reserves to the Department of Agriculture under the Bureau of Forestry, which became the Forest Service. The forest reserves were subsequently renamed national forests.
Fifty-five years later, the Multiple Use-Sustained Yield Act of 1960 (MUSYA) authorized the Forest Service to manage national forest system lands for additional purposes, and required the Forest Service to manage for multiple use and sustained yield of the products and services of the forests. The Forest and Rangeland Renewable Resources Planning Act of 1974 (RPA) required the Forest Service to periodically assess the renewable resources of the forests and to develop national-level plans to manage and develop them. Finally, the National Forest Management Act of 1976 (NFMA) reiterated the basic charges of MUSYA and amended the RPA to require the Forest Service to develop management plans for each national forest. NFMA also set standards and procedures for timber harvesting and sales.
In addition to the federal statutes that provide the overall framework for national forest management, the Forest Service develops its own set of national policies and management practices. For example, in November 2009, Chief Tidwell announced that climate change would force dramatic changes in agency practices, especially regarding water resources. Accordingly, he directed Forest Service regions and experiment stations to prepare "National Landscape Conservation Action Plans" to guide day-to-day response to climate change.
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Last Updated ( Monday, 01 February 2010 )
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The National Park Service (“NPS”), a bureau of the U.S. Department of the Interior, manages national parks and related areas in accordance with federal law and regulation, presidential proclamation, and legal precedent. The main federal laws directing establishment, purpose, management, and use of the Park System are:
- The Antiquities Act of 1906
- The National Park Service Organic Act of 1916 and its 1970 and 1978 amendments
- The Historic Sites, Buildings, and Antiquities Act of 1935
- The National Trails System Act of 1968
- The Wild and Scenic Rivers Act of 1968
- The National Park Service Omnibus Management Act of 1998
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Last Updated ( Tuesday, 02 February 2010 )
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Oil, gas (including coalbed methane), and coal are the nation's principal non-renewable energy resources. Development of federally owned oil and gas resources is regulated by several federal laws and associated regulations:
- Leasing of federal resources is regulated primarily under the Mineral Leasing Act of 1920 (MLA) as amended by the Federal Onshore Oil and Gas Leasing Reform Act of 1987 (FOOGLRA).
- Environmental impacts of development are regulated through: federal agency organic acts like the Federal Land Policy and Management Act (FLPMA) and the National Forest Management Act (NFMA); and national environmental laws like the Clean Air Act, Clean Water Act and Endangered Species Act.
State and local laws and regulations also regulate oil and gas development on federal, state and privately-owned lands. State laws and regulations can control the location of exploration and production facilities and the environmental impacts of development. The role of local ordinances varies from state to state. As oil and gas development has accelerated in recent years, some states have responded with stricter regulations requiring broader public participation in leasing decisions. See, e.g., "New rules for Colo., N.M.'s Santa Fe County face challenges," Land Letter, 12/18/2008. A recent investigation raised concerns about the effectiveness of state regulation as drilling has expanded dramatically. See "State oil and gas regulators are spread too thin to do their jobs," ProPublica, 12/30/09.
Federal policies toward oil and gas development have changed with the new presidential administration. Although Secretary of the Interior Ken Salazar pledged that his agency was not "anti-oil-and-gas," he has taken steps in the past year to curtail energy development on public lands, especially in and near ecologically sensitive areas. See below for a discussion of the measures taken to reduce impacts on adjacent protected areas. For a critique of the new policies, see the analysis prepared by the Independent Petroleum Association of Mountain States. For Secretary Salazar's response to this criticism, see "Energy, trade groups spreading 'untruths,' Salazar says," New West, 11/24/09. For a more general discussion of changing policies, see "Interior curbs lease streamlining, expands reviews," Greenwire, 1/6/10, and "Interior chief vows scrutiny of oil and gas leases," New York Times, 1/6/10.
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Last Updated ( Tuesday, 02 February 2010 )
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The problems associated with climate change are gaining international attention, which is fueling the renewable energy effort across the globe. National governments are recognizing the growing importance of renewable energy as a tool for meeting national and international carbon emission restrictions (see Climate Change Section) and as a strategy to reduce dependence on foreign oil. The United States’ principal renewable energy resources are wind, solar, biomass, and geothermal energy. American renewable energy legislation is still an emerging area of the law, although the nation has made some major strides in the last several decades. The development of renewable energy resources in the United States has been advanced by several major federal laws and associated regulations:
· The Energy Policy Act of 1992
· The Energy Policy Act of 2005
· The Energy Independence and Security Act of 2007
· The Energy Improvement and Extension Act of 2008 (enacted as Division B of the
Emergency Economic Stabilization Act of 2008 (P.L. 110-343, H.R. 1424))
· The American Recovery and Reinvestment Act of 2009
Currently pending legislation before Congress (the American Clean Energy Security Act of 2009) would institute a mandatory cap-and-trade program to address climate change and encourage expanded use of renewable energy sources. The U.S. Department of the Interior is working to facilitate permitting for more renewable energy production on public lands, as described in an announcement by Secretary of Interior Salazar in January 2010. For a summary of how renewables are faring in the current federal budget process, see "Renewables in vogue at Obama's DOE," E&E, 2/2/10.
This discussion summarizes these federal laws influencing the use of renewable energy. Separate sections address particular renewable energy sources in more detail, including solar energy, wind energy, biomass, and geothermal energy.
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Last Updated ( Tuesday, 02 February 2010 )
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The development of solar energy benefits society in many ways. When used in place of fossil fuels, solar energy reduces pollution and decreases the United States’ dependence on foreign and domestic fossil fuel producers. Solar systems can also be sized for small, on-site installation, which makes solar energy a popular renewable energy resource for individual homeowners.
Solar energy is not without costs, however. Current solar energy technology is still very expensive. An industrial-size solar system costs 20.56 cents per kWh in a sunny climate and 45.23 cents per kWh in a cloudy climate. By contrast, the average price of electricity for the industrial sector in the United States was only 6.84 cents per kWh in March of 2009. For all sectors in the United States, the average price was 9.75 cents per kWh in March of 2009. Solar energy development is also cost-prohibitive or unfeasible in areas of the United States that do not receive enough direct and continued access to sunlight. On the other hand, southwestern states—especially California, Colorado, Arizona, New Mexico, Utah, and Nevada—have plenty of sunshine and a great deal of potential for large-scale solar energy development.
This discussion provides an overview of the legal and policy issues that arise in producing solar electricty. For a discussion of renewable energy laws and policies, see the separate Renewable Energy section.
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Last Updated ( Monday, 01 February 2010 )
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Stewardship End Result Contracting (stewardship contracting) is a
relatively new tool that Congress gave to the U.S. Forest Service and
the Bureau of Land Management (BLM) for managing and restoring federal
lands. With stewardship contracting, the agency can more completely
address the total ecological needs of an area by using timber sale
contracts, service contracts, agreements, and new integrated resource
contracts—or any combination thereof. The agency can describe the "end
result" it wants to achieve in a certain area and its contractor can
then develop and implement a mutually agreed-upon plan to achieve that
goal. Stewardship contracting also allows the agency to enter into
multi-year contracts and to use the value of any products removed and
sold as a by-product of the restoration or maintenance work to offset
some or all of the costs of the work. Finally, with stewardship
contracting, the agency can work with the local community to design and
implement the contract, and in the process, build community capacity
and bring jobs and income into the local community.
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Last Updated ( Wednesday, 20 January 2010 )
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In 1964, the United States Congress enacted the Wilderness Act that creating a new land classification to preserve wild lands in their natural state. In that legislation, establishing the National Wilderness Preservation System, the Congress immediately designated 54 areas (9.1 million acres) in 13 states as Wilderness, and directed the Secretaries of the Interior and Agriculture to survey their lands (but not including Bureau of Land Management Lands) for other areas that could be added to the wilderness system. To protect these lands in a natural state, the Wilderness Act prohibits many activities that would impair the areas' wilderness character, but does not limit activities such as hunting and fishing. Both the original and subsequent acts "grandfathered" some activities that pre-dated designation, such as pre-existing irrigation systems and hydroelectric dams. The National Wilderness Preservation System now includes 680 areas (106,619,199 acres) in 44 states. Of that total acreage, about 54 percent is located in Alaska.
For an overview of the current administration's plans to bolster wilderness protection, along with an analysis of different administrative officials' roles in wilderness management, see "Obama admin showing renewed interest in wilderness," Land Letter, 12/3/09.
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Last Updated ( Tuesday, 02 February 2010 )
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Wind energy technology produces no fossil fuel emissions and is a highly desirable form of renewable energy in areas with a lot of wind and a lot of land. In 2008, the United States became the world’s largest wind energy generator, producing enough wind energy to power over 5 million homes. The New York Times reported that the nation's wind power capacity increased by 39 percent in 2009, and that nearly 2 percent of U.S. power production comes from wind energy. Of course, the United States also has a great deal more land for wind
energy generation than second-place Germany, but the trend toward
greater U.S. wind power is nevertheless encouraging for renewable
energy advocates everywhere.
Nonetheless, wind energy production is not without critics. In many cases, the source of wind power is far from the areas of demand, requiring construction of transmission lines and other infrastructure. Wind power can be highly variable, requiring other power sources to provide electricity when the wind is not blowing. Many conservationists are concerned about the impacts of industrial wind farms on birds, wildlife, and other natural landscape attributes.
This discussion provides an overview of the legal and policy issues that arise in producing wind-powered electricity. For a more general discussion of federal laws and policies affecting renewable energy production, see the Renewable Energy section.
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Last Updated ( Monday, 08 February 2010 )
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