Jedediah Purdy –
The enormities keep coming. The Trump Administration is especially busy in environmental and natural resources law, where the executive branch can get a lot done without Congress. There’s the elimination of the Clean Power Plan, the revival of offshore drilling, withdrawal from the Paris Agreement on climate change, repeal of rules to protect streams from mountaintop removal and to protect people from mercury, an overall directive to open public lands to mineral extraction wherever possible, and a proposal (scotched by FERC) to finance a giant purchase of coal reserves with utility customers’ fees. The Administration has adopted the slogan “Energy Dominance” for its policies (sub-slogan: “When energy independence isn’t enough”).
Environmental policy pretty well crystallizes two of the Trump Administration’s distinguishing qualities: corruption and ethno-nationalism. On the corruption tip, there’s the positive eagerness to hand over the resources of the public domain to the fossil-fuel industry and give environmental cost breaks to mining companies and everyone else. It’s as likely as not that there will be some scandals in the bidding process and so forth before this is done; but the real thing here is what Zephyr Teachout calls “structural corruption”: This Administration identifies with the extractive industries and their interests, and will happily see the world through their eyes (which is say, in keeping with their bottom lines).
As for nationalism, this Administration’s trick is to turn anything—anything—into a version of right-wing identity politics. When EPA director Scott Pruitt announced the end of the Clean Power Plan, he did it in Hazard, Kentucky, flanked by coal miners, and announced, “The war on coal is over.” The “war on coal” is a story the coal industry has been telling mining communities for a decade now: that they’re under mortal attack by liberals who don’t respect hard work and want to wipe out their way of life. Trump’s has turned extractivism into an icon of his ethno-nationalism.
These themes also intersect in a major fight over western public lands. On December 4th, 2017, Trump announced he was stripping 1.15 million acres of land, about 85% of the total area, from the Bears Ears National Monument in southern Utah. Barack Obama had created the monument just a year earlier. The same day, Trump also announced a major reduction in Grand Staircase-Escalante National Monument, in the neighboring county, which Bill Clinton created in 1996. Coal, uranium, and some oil and gas exist throughout the region, and if the change goes through it will be another symbolic stroke for Energy Dominance against the War on Energy.
The decision also aligns the Trump administration with a very intense regional populism. Since the 1980s, white locals in Southern Utah have fomented an anti-federal grassroots politics that is genuinely radical. It links Ryan Bundy, the leader of the militants who occupied the Malheur National Wildlife Reservation in southeastern Oregon in 2016, with elected county commissioners in southern Utah. At least one commissioner has joined Bundy on a gun-toting, ATV-powered mass trespass onto closed federal lands, and over the last few decades other commissioners have arranged for public bulldozers to cut illegal roads onto protected land and have even threatened federal agents with violence. They are pushing a marginal but persistent theory that federal lands are unconstitutional and must be handed over to the states or privatized, and a politics of “local control” by “the people,” mineral extraction, and development for those lands as long as they remain public.
Like all localists, these Western activists are involved in a contentious politics about who “the people” are. San Juan County, where Bears Ears is located, is majority Native American (mostly Navajo), but for years gerrymandering has maintained a 2-1 Anglo majority on the county commission, while the commission has become a hotbed of anti-federal radicalism. In December, a federal court declared the county’s districting illegally discriminatory. Local Navajo governments and representatives of other Native American groups in the area have supported the Bears Ears monument and were to be formally involved in administering it – an arrangement that Trump booted out as he shrank the monument to a remnant. The whole body of anti-federal agitation and its biggest prize so far, the monument shrinkage, are openly and quite concretely effacing Native culture and sovereignty in the region by eliminating a hard-won tribal seat at the table. They have made the monument a prize in a symbolic struggle over who, exactly, is the “public” in public lands.
These observations just might matter in ongoing litigation over whether Trump has the power to shrink the monuments. Plaintiffs trying to save the monuments—American Indian tribes and environmental groups – have a clean textual argument that the 1906 law that authorizes presidential creation of national monuments, the Antiquities Act, is a one-way delegation: it says the President can create monuments, but doesn’t say anything about shrinking or eliminating them. The administration and its allies insist, though, that the power to perform an action implies the power to undo it, at least in this case. The administration has some support in the early history of national monuments, when several presidents issued orders shrinking one monument or another, in a few cases very substantially.
There are good counter-arguments. Previous orders shrinking monuments have never been tested in court. No President has substantially shrunk a monument since 1956, the 1976 Federal Land Policy and Management Act rewrote much of public-lands law and created a strong presumption of Congressional control over decisions to change the status of public lands; and the purpose of the Antiquities Act is to preserve irreparable places, not to throw them open to shifting priorities. The Act’s legislative history and a comparison to contemporaneous federal lands statutes confirm its preservationist purpose.
If a court finds the case close, though, it should also consider something long forgotten, which is newly relevant today. Public-land law has a very long tradition of concern about corrupt privatization by the executive branch. For decades in the late nineteenth and early twentieth centuries, directors of the General Land Office (predecessor to today’s Bureau of Land Management) lamented in annual reports that their agents and others were allowing vast acreage and rich timber and minerals to go to “speculators,” from ordinary grifters and nameless mining outfits to the memorably titled Marquess of Tweeddale, who controlled millions of acres of public grazing land through corrupt enclosures in the 1880s. Attorneys general from the Lincoln Administration to Franklin Roosevelt’s opined that the executive’s power to remove lands from protected status had to be limited to avoid corruption. The Supreme Court sounded the same concern when discussing “inherent” presidential power over public lands: the President, the Court said in United States v. Midwest Oil (1915) could act on his own to protect public lands from being harmed or wasted, but not to enlarge private claims.
In other words, there is a structural anti-corruption premise at the base of public-lands law: the Executive may not unilaterally take resources out of protection and make them available for private profit by favored industries – even when he can do the opposite, and act unilaterally to preserve those lands from extraction or privatization. This should lend confidence to a court that there is nothing arbitrary in reading the Antiquities Act’s silence about shrinking monuments as a prohibition. That prohibition is consistent with the whole field of law where the Act fits, as well as the text of the Act itself.
The Administration’s right-wing cultural politics may not have an equally clear doctrinal hook, but it is relevant to a rising sense among some judges that Trumpist injection of ethno-national symbolism into policymaking can be a reason for special wariness. This sense encourages courts’ skepticism of the Muslim-targeting travel ban, and judges’ willingness to look beyond the usual legal materials to note evidence of the larger discriminatory politics of the order. In the national monuments orders, too, an area of law with its own long-established contests and bounds is being yoked to an erratic form of cultural nationalism with exclusionary overtones. At the very least, it would be good for public-lands law to say no environmental Trumpism.
Jedediah Purdy is the Robinson O. Everett Professor of Law at Duke Law School.