New study published in a University of California, Davis environmental journal explores the impact of a land transfer on Endangered Species Act compliance.
(June 29, 2016) — New research from the University of Utah S.J. Quinney College of Law finds that transferring millions of acres of federally managed public lands to states, as contemplated under Utah’s Transfer of Public Lands Act, would make Endangered Species Act compliance more difficult by increasing compliance costs and lengthening the time required to obtain project approvals.
In a new study published in Environs Environmental Law & Policy Journal, University of Utah S.J. Quinney College of Law associate professor (research) John Ruple and co-authors explain that a transfer would not eliminate requirements to comply with the Endangered Species Act, and that a transfer would increase the amount of time and money need to complete ESA permitting.
The impacts to Utah could be significant should a transfer occur, according to the research of Ruple and co-authors Mark Capone, Emanuel Vasquez and Allison Jones. The authors identified 3,240 producing oil and gas wells and over 1,100 additional wells that have been approved but not drilled that are all located in areas known to contain threatened or endangered species. Transferring lands out of federal ownership would invalidate existing ESA authorizations for these wells and necessitate development of Habitat Conservation Plans. Plan development costs as well as any required change in operations could cause significant expense and delay for the state or the well operators. Fiscal impacts to Utah could be substantial, as the impacted wells produced $92 million in revenue for the state during 2014, according to the researchers. Besides revenue loss, a number of other costly factors related to ESA compliance are detailed in the study.
“The goals underpinning state efforts to seize control of federal lands — to reduce regulatory complexity and accelerate resource development — are at odds with changes in the ESA compliance process that a wholesale land transfer would bring about. Any state that prevails in its efforts to take over federal public lands, and all of the private citizens and corporations that would subsequently lease those lands, will still have to comply with the ESA,” the researchers concluded.
“By removing a federal nexus, states are inadvertently increasing the amount of time and money needed to complete ESA permitting, and with it, the lead time required for the development activity for which ESA compliance is required. These costs and delays could be significant, especially when extended to thousands of wells. It is hard to imagine how increased compliance costs and lengthened permitting times would produce anything other than a chilling effect on state and local economies — precisely the opposite result of what transfer advocates seek,” the researchers wrote.
The new research comes as public debate continues over efforts to force the federal government to turn over millions of acres of federally managed public lands to the states. With enactment of the Transfer of Public Lands Act in 2012, Utah demanded that the United States transfer title to 31.2 million acres of federal public land to the state no later than Dec. 31, 2014. With passage of the deadline and no sign of federal capitulation, Utah has moved forward with preparation for a lawsuit against the United States. Other states have followed Utah’s lead in asking to have lands currently managed by the federal government moved to state control. By the close of the 2015 legislative session, 13 additional states besides Utah had introduced at least 55 bills to either support, study or demand the transfer of federal public lands to the states.
“We appreciate the frustrations over public land management that many westerners feel, but a state takeover of public lands is not the answer. We hope that our analysis stands as a caution to Utah,” Ruple said. “The Transfer of Public Lands Act is the wrong tool for the job and it is likely to have profound unintended consequences for the state, if Utah succeeds.”
Ruple, along with University of Utah S.J. Quinney College of Law professor Robert Keiter, have published research on a number of issues related to the transfer of federally managed public lands to state control. Keiter, director for the Wallace Stegner Center for Land, Resources and the Environment at the S.J. Quinney College of Law, is a nationally recognized expert on public lands and natural resource law. Ruple is an expert on public land management law. Both professors recently published a series of papers critiquing state efforts to take over federal public lands: A Legal Analysis of the Transfer of Public Lands Movement; The Transfer of Public Lands Movement: Taking the ‘Public’ Out of Public Lands; When Winning Means Losing: Why a State Takeover of Public Lands May Leave States Without the Minerals They Covet; and Alternatives to the Transfer of Public Lands Act.
Both professors are available for media interviews related to public lands issues.