- 1 year ago
A last-minute proposal on the sale of public land from House Republicans during budget negotiations could have negative ramifications for the communities nearest the parcels that could be privatized, says Jennifer Novak, an environmental lawyer. Novak spoke to Forbes senior editor Maggie McGrath on "Forbes Newsroom" about the proposal and what it could mean in the long term.
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00:00Hi, everyone. I'm Maggie McGrath, Senior Editor at Forbes. House Republicans are considering
00:09the sale or swap of thousands of acres of public land out in the West. What does this
00:17mean for the land in the areas being considered? Joining us to discuss is an environmental
00:23lawyer and founder of her own boutique environmental law practice, Jennifer Novak. She is an
00:29expert in this space, and we are so happy she joins us to break down this issue. Jennifer,
00:33thank you so much for being here. So let's start at the beginning. The sale of public lands is an
00:40often controversial proposal. How did this even get on the table? This goes back a very long time,
00:45especially if you look at the fact that a great proportion of the Western United States is
00:50actually owned by the federal government. You're talking about about 80 percent of the state of
00:55Nevada, about 60 percent of the state of Utah. And it goes way back to when the United States was
01:01taking land and then enticing people to move out West with the Homesteading Act. So ever since then,
01:08the federal government has been holding on to a lot of land, some of which has been turned into parks
01:13or refuges, some of which is just not being used. And so when you have any sort of commodity or
01:21property like that, there is always a temptation to try to make it into something economically
01:27useful. And we've had to balance these considerations for a very long time between conservation and public
01:34use versus mining or housing or other things that we might use that land for.
01:41Now, this is part of overall budget negotiations. What is the thesis financially here? How much could
01:49this help the budget if these lands, if these parcels were sold?
01:53I haven't seen an exact dollar amount given to these particular parcels that we're talking about
01:59right now, but it goes a little bit beyond that. There's the one time sale, but then potentially
02:05there's also the types of materials that could be extracted from some of these lands and money paid to
02:12the federal government for that purpose as well. It also plays into economics in the sense that what
02:18you're talking about are some counties and cities in Nevada and Utah that really feel like they're
02:23hemmed in, that they can't expand further. They won't have the opportunity to attract more jobs and more
02:30people and build more infrastructure because they're surrounded by federal land. So from an economic
02:36standpoint, that's a consideration for them as well.
02:39Part of the controversy here, or at least something that I see being reported by local media in Nevada
02:50and Utah is the time of day that this proposal came onto the table, so to speak. So Jennifer,
02:57can you break down the middle of the night aspect to this and whether or not that is terribly rare in
03:03a case like this? Sure. What had happened is that the House Republicans on the Natural Resources
03:10Committee had been signaling that they were not going to consider a land sale as part of the budget
03:17negotiations. And then at the last minute, without signaling that it was possible, without accepting
03:22public comment or letting it come out into the press, it was added before it was passed. So it was seen as
03:30one of those situations where you usually don't do that kind of activity unless you're trying to bury
03:35something or sneak something in that you think is going to be incredibly unpopular. So it's not that
03:41it is particularly uncommon. It was more that it may have signaled that the House Republicans understood
03:48that most Americans actually like the federal public lands and want to protect them, and that this was not
03:54going to be seen as something that people wanted to have done. So does that mean legally speaking or
04:01constitutionally speaking, there's now no opportunity for public comment or for folks to call their
04:06congresspeople if they live near one of these parcels and have concerns? Well, this is only the first step.
04:12It was the Natural Resources Committee making its proposals for the overall national budget. So there is still
04:19an absolute opportunity for people to weigh in and tell their representatives whether or not they like
04:26this idea. And I will note that there was one Republican on the committee who voted no. And more
04:32prominently, Congressman Ryan Zinke, who actually used to be the Secretary of Interior during the first
04:38Trump administration, despite the fact that he's from Montana, not Nevada or Utah, basically said he was
04:45drawing a line in the sand, and that he would not 100% not pass any budget that included the sale of
04:53federal lands. Is that because it would create some sort of precedent in Utah and Nevada that could then
05:00be used in Montana? Was that part of his thesis? There's a there is a concern that especially when
05:06we look at some of the more recent executive orders that President Trump has signed, that maybe we're
05:12shifting away from preservation of federal lands for the sake of all Americans and all visitors to a
05:19privatization. And once we start down that slippery slope, I think a lot of people are afraid that we
05:25will start to open more and more land and more and more states. And if you're somebody who is one of
05:30the millions of people who do birdwatching, fishing, hunting, camping, or are in an industry that relies on
05:39the tourism that those kinds of activities can create, you are concerned about this not being
05:45just a very small thing, but instead starting to open up the floodgates.
05:50You mentioned birding, fishing, people who visit nature. It looked like one of these parcels was
05:56somewhat near Zion National Park. What else is this land currently being used for? And what is the
06:03proposal on the table in terms of how it could be used after a swap or sale? Sure. So as an example,
06:11the city of St. George came out in favor of this proposal, because their argument is they are expanding
06:18rapidly, and they need that land. Interestingly, among the things they advocated for was the possible
06:25need to expand their water reclamation plant. They might need to expand their airport. They wanted to
06:32protect some land around a creek, and maybe some of that land might be used for housing. So it really
06:40seems like it's going to be up to the county or the municipality involved as to how that public land
06:47is going to be used. And so we can't entirely trust people who say it will only be used for housing,
06:53or it only has to be used certain ways. We often see a mismatch between where these federal lands are
07:00and where we need that development and infrastructure and growth.
07:04I was just about to ask about legal precedent, obviously acknowledging that all 50 states are
07:08different and what happens in one state isn't necessarily prescriptive for what happens in
07:13another. But in your experience as an environmental lawyer, what does typically happen if public land
07:20is swapped for private use? Generally speaking, there's a review process so that the land has been
07:27studied and identified. And in fact, under federal law, Congress is supposed to be in the Bureau of Land
07:33Management, is supposed to be balancing a number of competing interests, everything from grazing and
07:39energy use to conservation and public enjoyment. And what we're seeing right now is without studying those
07:50lands, we don't have any evidence to show that they are otherwise not useful, or they're otherwise more
07:57useful to do mining or housing or some other activity, versus the hunting, the birding, the
08:03preservation, the open space, or even many tribes depend on the lands we're talking about for purposes of
08:11protecting their sacred spaces. So one possible way of legal challenge is to note the fact that these
08:19seems to be random, this does not seem to be necessarily studied or well guided. And without
08:25understanding why these lands in particular are needed for these purposes over and above all other
08:31uses, you don't have a good basis for being able to move forward. I'll also note that we do have a variety
08:38of environmental laws, such as the National Environmental Protection Act, the Endangered Species Act,
08:43the Clean Water Act, that President Trump can't simply waive with an executive order. It would have
08:50to be an act of Congress that says that you don't have to comply with all the permitting or review
08:56requirements that many of these laws require. I was about to ask about legal challenges, but I'm also
09:02curious about what this says writ large about the Trump administration's policy on environmentalism.
09:08Let's start with those legal challenges. Are there any on the books right now, or are folks still kind of
09:14organizing and determining whether it makes sense to file suit?
09:17Well, it's still really early in the process. We would still need to see whether or not the budget is
09:22passed and signed into law by the president. And at that point in time, we would start to see some
09:29challenges, I'm assuming, from some environmental groups and maybe even others. So that would be, I don't know,
09:36a ways down the road. But what we do have are some examples of situations where there have been
09:42proposed land purchases or swaps in the past. For example, in 2014, there was one involving an Apache
09:50tribe where Congress decided they would open up some of the land that the tribe deemed sacred. And they
09:57brought a variety of challenges within the Ninth Circuit Court of Appeals here in the West. It's still
10:04going on and, in fact, is currently in front of the United States Supreme Court. And just last week,
10:09a federal district court judge issued a temporary injunction saying that while that case is pending
10:15in front of the Supreme Court, the mining can't go forward and the land swap can't occur until these
10:22are resolved legally.
10:24Oh, wow. So when do we expect a Supreme Court decision in that case?
10:28Honestly, I didn't look to see whether or not I was on the books yet as far as oral argument. I do know
10:36that the federal court decision at the district court level was just last week to give some time
10:43for the tribe to challenge the decision of the Ninth Circuit that was not in their favor. And
10:48interestingly, it was based on religious grounds that the land swap couldn't happen because it violated
10:54their sacred space and their ability to practice religion as they see fit.
11:00That makes sense as both a logical and a legal argument. So what we have here, it sounds like,
11:07is the proposed sailor swap of public land in Nevada and Utah as part of the budget proceedings,
11:13and then separately a Supreme Court case considering another parcel of land. What does all of this activity
11:21around the sailor swap of public land say to you about how this administration is treating environmentalism
11:28in 2025?
11:30We have a lot of indications about how this administration is going to proceed based both on
11:35the first Trump administration, as well by the rapid fire executive orders that we have seen this time around.
11:42I will say that one difference is that in March, President Trump issued an executive order
11:48that basically directed the agencies to streamline permitting to designate mining and mineral
11:56exploration as the number one use for public lands for going all the others, as well as trying to
12:04identify what the best parcels would be to open up for more mineral exploration. We've also seen an
12:11executive order in which President Trump suggested that the government has the ability to designate
12:18pretty much anything as a mineral and opening up the mineral exploration, not just for things that
12:24are deemed critical minerals, critical to our energy consumption and also the rare earth minerals that
12:34we've been talking about a lot in the news, but to more common things like gold and coal. So it just,
12:40it seems as if the idea of the one-time sales for a cash influx, as well as the potential
12:46to get some royalties from some of the exploration are seen as more of the driver economically than,
12:54for example, the tourism industry or the people who sell sporting equipment to the people who go
12:59boating or camping or fishing, which is often forgotten when we're trying to look at competing
13:05economic interests. That's a very fair point because often I think of public land and open space as
13:12just kind of free and people go, but there is a tourism impact, as you said. What is the environmental
13:20impact of these parts of land being turned into something else? Is there a carbon output figure
13:28that you look towards? Is there something tangible or is it just part of the overall treatment of the
13:34environment in the U.S. that then gets pulled down a notch, if you will?
13:39Sure. Well, one of the quotes I often use is, an ounce of prevention is worth a pound of cure.
13:45And when we're talking about our open spaces and whether we should allow them to be used for oil
13:51and gas or mining, a lot of times people are not factoring in the fact that these are polluting
13:58industries. And they're industries we need because we rely on the energy, we rely on those materials.
14:04But what can often happen is at the end of the day, when the resource has been extracted,
14:11we are left with an environmental mess behind. And there are examples from all over the country
14:16where, for example, in California here, we have what was called the Iron Mountain Mine,
14:23which is now leaching sulfuric acid from gold mining, iron ore mining, and is a billion dollar
14:30problem that has been going on for decades. Many other states have similar problems. And so
14:35what we forget is that sometimes there is a societal cost where the taxpayers end up paying
14:42to keep toxic material away from fish, to protect rivers, and to keep material out of our air and our
14:49drinking water that could poison us. So when I, as an environmental lawyer, are looking at these
14:55issues, I want to be sure that we're picking the right places that are not going to adversely affect
15:00people or habitat, and that we are doing it in a responsible way so that a company doesn't come in,
15:07take the resources, and leave behind a huge mess that ultimately will cost the taxpayers in the end.
15:14Now, when you said earlier that this provision kind of came up late in the night, overnight,
15:19as some have described it, and very quickly without any analysis, is what you just said part of any analysis
15:26that could happen? Would folks, would Congress take a look at the population centers nearest these parts
15:34of land or the environmental impact if a mining operation was put in? Or is that part of what could be studied
15:44or would be studied? Absolutely. So the NEPA, the National Environmental Protection Act, would require
15:50an environmental review, and it would ask those very questions. What would the noise impacts be? What
15:56would the air quality impacts be? What would the water quality impacts be? And this doesn't always mean
16:02that every exploration of land is going to create a huge mess, or there may be ways to mitigate it, or there
16:10may be some safety measures that could be put on. But that's the very reason why we have some of these
16:15environmental laws, which is to ensure that we are gaining an understanding in advance of what could
16:22happen, and we are planning for it to try to minimize the impacts on the back end so that we can
16:28have activities to generate the energy that we need every day. And at the same time, we're not just doing
16:34it so recklessly that we don't care about the impacts to the environment or to people after the
16:40fact. Now, of course, recognizing that adding pollutants to a parcel of land is bad for public
16:47health writ large. I do want to ask, if someone is watching this and living in a population area where
16:54there's no public land nearby, or they don't think there is, I'm speaking to you from New York City,
16:59I could not tell you where the closest public land is. Perhaps that's bad on my geography. But
17:05for folks who think that this is a Utah problem, or a Nevada problem, or a Montana problem, and
17:11because they're in the Northeast or somewhere else where they don't know where the
17:15closest parcel of public land is, what would you tell them?
17:19I would tell them the purpose of having these public lands is for everyone to enjoy. And we have
17:24national parks throughout the United States. We have refuges throughout the United States. We have
17:30protected space, even where you don't think they exist. So even though the heavy concentration are in
17:37the states and areas that we've been discussing, the fact is that they are there for the benefit of the
17:41entire United States. And just because we are going to open some of them up to benefit a few cities or
17:48counties in a certain local area does not mean that someone from someplace else in the country
17:54would not find those areas really beautiful and want to use them in a different way.
17:59Very fair point. We've covered a lot of ground. What is the immediate near-term next step in your view?
18:05I would say we need to watch the members of Congress as to how they are planning to address
18:11this public lands issue. Obviously, there's going to be a lot of issues. Every day we're hearing about
18:17something else in the news that we can get upset about or pay attention to. But with respect to this
18:24particular issue, especially for people who feel that they live in those areas, recreate in those
18:30areas and care about those areas, letting your representatives know your feelings would be very
18:36helpful. And again, there are very slim majorities for the Republicans in both the House of Representatives
18:42as well as in the Senate. So even one or two votes no can make a huge difference if you are looking to
18:51protect those public lands. Jennifer Novak, environmental lawyer, thank you so much for joining us and
18:57breaking down this public lands case. We so appreciate your time and your expertise. And thank you for the
19:02opportunity.