2022 TOP 10 BLOG
Biden’s 30×30 Executive Order: Challenges and Prospects for Natural Resource Conservation
VJEL Staff Editor: Daniel Lee
Faculty Member: Hillary Hoffman
On January 27, 2021, President Biden announced an ambitious but somewhat ill-defined plan to conserve one-third of the nation’s land and waters by 2030. The conservation plan is found in section 216 of the “Executive Order on Tackling the Climate Crisis at Home and Abroad.” As the world begins to experience the dire consequences of climate change and the denigration of natural resources, conservation of natural lands and waters will help remove carbon from the atmosphere and preserve biodiversity for future generations. The plan’s primary goal has received overwhelming support from various legislators, local leaders, and conservation groups, as well as the expected backlash from conservative state governors and the oil, gas, and mining industries. The “30×30,” as this plan has become known, is undoubtedly an essential element of the Biden-Harris Administration’s “whole-of-government” approach to combatting climate change. However, it almost raises more legal questions than it answers so far. Even though the United States may have a greater percentage of conserved land than most nations through national parks, state parks, national monuments, wilderness areas, and municipal parks, they are not enough to get us to the 30% mark targeted by this plan. In short, it will require a more significant conservation effort than current U.S. laws require, and even allow, in some cases.
The primary challenge becomes finding additional land and waters to include. That requires defining what constitutes “conserved” land and waters. Currently, all that the January 27 Executive Order accomplishes is tasking Executive Agencies with gathering information for which lands and waters could be applicable and collecting input from stakeholders on how to achieve the 30×30 goal. A preliminary follow-up report issued by the Departments of Commerce, Interior, Agriculture, and the President’s Council on Environmental Quality, Conserving and Restoring America the Beautiful, further muddles the definition of conservation. The preliminary report suggests that voluntary efforts to conserve land and water, both public and private, would still allow farming, hunting, fishing, and other recreational activities with the potential to degrade natural resources on these conserved lands and waters. One might deduce from this context that conservation means merely preventing oil and gas drilling, coal-fired power plants, and shopping malls from being constructed on designated lands or in designated waters. However, the limited rollout of the plan so far suggests that lands burdened by fairly extractive—and high carbon-emitting activities like livestock grazing on public lands—will be included. The wide range of permissive activities on conserved lands and in conserved waters may incentivize more stakeholders to participate voluntarily. Still, such egregious allowances seem to miss the mark of proper conservation.
Another unexplained but obvious legal challenge to implementing 30×30 is the series of existing laws that allow (and sometimes incentivize) carbon-heavy extractive activities, in addition to laws and policies that allow (or even encourage) green development such as wind farms. On public lands, various statutes allow private entities to extract minerals like oil and gas, uranium, coal, and rare-earth minerals, and for some minerals, legally safeguard those acquired rights. These extraction activities would immediately render those lands ineligible for inclusion in the 30×30 plan unless the Secretaries of Interior or Agriculture withdrew them in advance of the designation. These statutes protect timber harvesting and mineral development of national forest lands and public domain lands are protected. In some cases, even highly protected public lands — which would likely be included as “conserved” — may contain private inholdings of mineral-rich lands. Such lands would have to be carefully surveyed, withdrawn, and monitored to ensure that they remain conserved within the plan’s definition.
There are also conflicts of authority that remain obvious and open questions after reviewing the preliminary 30×30 plan. There is no one-size-fits-all approach to categorizing tribal lands. Many tribes depend on revenue from oil and gas leasing and other mineral development to fund critical education programs, health care, and provide social services for their members. While the assumption might be that tribal lands will be a natural fit for inclusion in 30×30, this is not a safe assumption to make across all tribal lands. The Conservation Plan also calls for limits on fishing and endorses the construction of off-shore wind farms. The United States must reconcile these goals with tribal treaty rights and other treaty obligations it has made regarding access to and use of off-shore waters.
Looking Forward
In the coming months, it will be critical for the Biden-Harris Administration to explain the role of the various federal agencies in reaching the 30×30 goals and any incentives that may be used to encourage states and private landowners to contribute. There are some less voluntary, existing mechanisms for the federal government to increase its land base, like eminent domain, if necessary to meet the goals of 30×30. There will be a financial and even political cost of going that route, however. The plan would also benefit from greater clarity on quantifying the lands and waters it seeks to conserve. Will the conserved areas be fluid or incremental? Meaning that once a land or water is declared to be conserved, will it stay that way? Or is there potential to swap out conserved areas for others should it be necessary for an already conserved area to come out of conservation? Further, the plan should iterate how currently conserved lands and waters factor into the measurement to guide how these lands can and cannot be used or developed.
The 30×30 Plan has great potential in the fight against climate change and conserving of biodiversity in the United States. It will be vital for the Biden-Harris Administration to complete the initial lands and waters survey quickly and move forward with concrete steps to achieve these laudable goals. This is primarily because of the legal reforms, bureaucracy, and politics that may be necessary to reach the 30% mark. Not to mention the political climate leading up to the 2022 congressional midterm elections, when the President may lose some support in one or both houses of Congress. The clock is ticking.