Vermont Law Top 10 Environmental Watch List for 2020

BLM Director William Perry Pendley’s Transfer of Agency Headquarters from Washington to Colorado

In July 2019, Department of the Interior Secretary David Bernhardt announced plans to move the Bureau of Land Management (BLM) headquarters. The announcement came as a surprise to the nearly 300 employees working for the BLM in Washington, D.C. who were suddenly being forced to make a life-altering decision of either packing up their lives and moving out to a relatively remote community on the western slope of the Colorado Rockies or looking for a new job. The announced move, which will be overseen by the BLM’s new Acting Director William Pendley, has drawn strong criticism from BLM employees, conservation organizations, and members of Congress, many of whom question the motive for the move. Many also have expressed worries about the effects this move will have on the BLM’s operational abilities. These questions remain unanswered for now, but they are sure to be answered in 2020.

Grand Junction BLM

The building that will house the Grand Junction BLM headquarters, which also houses several oil and gas companies.

The new home of BLM headquarters, Grand Junction, Colorado, lies roughly 250 miles west of Denver on Interstate 70. The city is known for its vineyards, scenic views, and motorized recreation opportunities, and it is home to the Colorado National Monument. According to Colorado Senator Cory Gardner, the BLM is moving because “[it] will allow bureau officials to be closer to the lands that they manage and will allow state and government officials to have greater access to BLM decision makers.” An email sent by Pendley on October 8, 2019, indicates the contentious move could begin as early as March of 2020. Director Pendley has given BLM employees affected by the planned reorganization 30 days to decide if they want to move.

Pendley’s decision has left many scratching their heads. The effectiveness of the move in meeting Pendley’s goal seems unlikely considering the fact that most of the BLM’s employees work in the regions they oversee, which are primarily located in the eleven western-most states. Opponents of the BLM’s reorganization plan are not only up in arms about the seemingly arbitrary decision to move West, but they are also critical of Pendley himself.

William Pendley is a well-known conservative lawyer who has made a career out of litigating against environmental activists. Prior to coming to the BLM, Pendley was the president of Mountain States Legal Foundation where he represented Utah as defendant-intervenors in a lawsuit challenging President Clinton’s authority to create the Grand Staircase-Escalante National Monument. He has also been outspoken about his belief that the government should sell valuable public lands and that states should take primary responsibility for managing federal lands and natural resources within their borders. Critics argue that Pendley’s legal career and track record create a conflict of interest. This raises concerns about how the BLM will manage the 247.3 million acres of public lands under its jurisdiction, which is more than one eighth of the country’s landmass. The critics’ concerns have largely been ignored by Bernhardt, who recently signed a secretarial order which keeps Pendley in charge of the BLM at least until the beginning of next year, leading some to speculate that President Trump is going to nominate Pendley for the BLM Director position.

How the agency plans to pay for the move is another mystery.  Recently, the Senate Appropriations Committee finalized a budget that offers no funding for BLM’s relocation. The Committee rejected President Trump’s request for funding and recommended that no relocation of agency headquarters or any staff should take place.

The Senate appears to be cautious to grant funding for this move due in large part to the failures of the two U.S. Department of Agriculture (USDA) agency relocations that took place earlier in the year. In June, President Trump announced that the Economic Research Service and National Institute of Food and Agriculture, two USDA agencies responsible for research and research funding, would relocate to Kansas City, Missouri. That unexpected announcement also came with an aggressive timeline. The move was to take place within three months of the announcement, and agency employees had to decide to make the move or find work elsewhere. This led to hundreds of agency employees quitting or retiring early, effectively gutting the agencies’ workforces. The mass exodus of USDA employees has created what some are calling “brain drain” within the agencies. The sudden move has left the USDA scrambling to find qualified employees to fill the vacancies.

Members of the GOP have been outspoken in their support for the BLM move. In October 2019, two Republican Senators introduced a new bill, the Helping Infrastructure Restore the Economy Act (HIRE Act), which would require more agency relocations.  This bill would move 10 federal agencies out of Washington D.C., to rural areas in the southeast and intermountain west, along with 90 percent of their workforce. According to the bill, moving these agencies would build infrastructure in economically depressed regions of the country, and provide economic benefits to residents of the recipient communities, counties, and states.

Many believe that the reasoning behind the USDA’s failed move, the BLM’s move, and the recently proposed HIRE Act are actually political. Some believe that the Trump Administration is using agency relocation as a way to effectively get rid of the federal workforce that make up these agencies. These opponents are not convinced that the move is worth the potential negative consequences. Continuing to uproot these agencies and forcing employees to move on such short notice will likely have an overall negative effect. Moving these agencies will be generally disruptive to intra-agency coordination, but, more specifically, it will undermine statutory mandates that require interagency collaboration. Additionally, a lack of job security and low morale for these federal agency employees will have a negative effect on the agencies’ ability to recruit qualified candidates in the future.

There is no settled law as to whether the BLM has the authority to mandate such a move. In this legal void, courts defer to the agency’s discretion as long as they do not violate any statutory mandates or encroach upon the authority vested in another branch. However, agencies rely on congressional funding to carry out their statutory mandates and their discretionary policy choices, and thus far, Congress is not willing to appropriate monies to fund this move. Given the limited mechanisms by which Congress can “check” the actions of the executive branch in the areas of agency authority and policy, the appropriations process for the BLM will be something to watch closely in 2020. If Congress backs down, it could set a precedent for future agency heads to relocate to other regions of the country, effectively de-centralizing the Executive Branch.