Environmental NGOs Gear Up to Defend Compensatory Mitigation

27 July 2018 | For decades, the US government has, under some circumstances, let mining companies and other land developers use compensatory mitigation to “offset” their damage to the habitat of endangered species by restoring an area of equal or greater environmental value. It’s a practice that balanced economy with ecology and supported a restoration economy that employs more people than the coal and steel sectors combined, but which Secretary of the Interior Ryan Zinke has called “extortion”.

This week, the Department of the Interior’s (DOI) Bureau of Land Management (BLM) issued a memo stating that “the BLM must not require compensatory mitigation from public land users,” sparking an immediate reaction from environmental NGOs that see compensatory mitigation as a tool born of compromise and wielded with generally good effect. The memo comes amid a flurry of other initiatives that critics say are designed to undermine the Endangered Species Act.

“These companies have been asked to pay for the damage they are doing to our public resources on our public lands, and now the Trump administration is saying you don’t need to pay that bill,” said Tracy Stone-Manning, an associate vice president at the National Wildlife Federation, according to Bloomberg. “In the end it looks like another give away for industry at the expense of the American public and wildlife.”

Erik Molvar, executive director of the Western Watersheds Project, said the memo “is part of a wave of deregulation that is aimed at removing requirements to care for the land and fast-tracking industrial and corporate exploitation of public lands and resources,” according to ThinkProgress.

Alex Daue, Assistant Director for Energy and Climate for the Wilderness Society, agrees. “By stating that the Bureau of Land Management is not allowed to require compensatory mitigation, this guidance runs contrary to bedrock environmental laws like the Federal Land Policy and Management Act and the National Environmental Policy Act, case-law, and decades of agency policies and practices,” he said in a statement. “These have all demonstrated the benefits of compensatory mitigation, the Bureau of Land Management’s obligation to consider it when reviewing proposed development, and their authority to require it where appropriate.”

Indeed, the DOI has already rescinded its Landscape-Scale Mitigation Policy, two BLM mitigation policies, and a Solicitor’s Opinion supporting the agency’s authority to require mitigation.

“The Nature Conservancy fully recognizes that BLM has a mandate to allow for the use of our public lands, but it also is directed by Congress to meet ‘the long-term needs of future generations’ for a wide variety of resources, including wildlife, scenic, scientific and historical values ,” said Lynn Scarlett, Co-Chief External Affairs Officer for The Nature Conservancy. “This action severely constrains the tools available to field staff to meet the agency’s conservation mission, and moves BLM away from its statutory mission of balancing conservation, economic, recreational and other land management goals.”

According to DOI figures, compensatory mitigation has generated $152 million in income for the department since 2008.