The Bush Administration's Sweetheart Settlement Policy: A Trojan Horse Strategy for Advancing Commodity Production on Public Lands

Abstract

A prime vehicle of the Bush Administration's implementing its public land policies: a series of sweetheart settlements with extractive industries. The pattern resembled a Trojan Horse: the government would invite litigation from the industry; then, once a case was filed in a forum picked by the industry, the government would agree to a settlement that would give the industry all that it could have hoped for in the litigation, undermining environmental protection in the process. All this was accomplished behind closed doors, without public review. Indeed, the government opposed environmental group participation (not always successfully). The sweetheart settlement policy was accompanied in one of the examples the paper studies by a closely related policy of virtually failing to defend Clinton Administration policies at all. In this manner, the Bush Administration revolutionized public land policy without having to seek legislation or public comment.

This paper evaluates four policy initiatives: 1) the unwillingness to defend the Clinton Administration's roadless rule and ensuing exemptions from it; 2) the elimination of wilderness study areas and the pursuit of measures to recognize roads that would disqualify areas from wilderness consideration; 3) the rollback of species protections at the heart of the Northwest Forest Plan, the nation's first large-scale experiment with ecosystem management; and 4) the well-publicized effort to overturn a Clinton Administration phase-out of snowmobiling in Yellowstone National Park, which produced apparently inconsistent results from two different federal district courts. All of the initiatives involved sweetheart settlements, although the principal means to undermine the roadless road involved a failure to litigate, followed by opposition to environmental groups which wanted to defend the rule.

The depth of the Bush Administration's dismantling of the Clinton Administration's public land policies is, as this study illustrates, fairly stunning - involving not only both abandonment of positions embraced by both Republican and Democratic Administrations and the pressing of novel interpretations never before advanced. The paper concludes by suggesting that what all the Bush Administration initiatives have in common is an unstated assumption that the public in public land policy is the local business constituency using public lands for commercial purposes. That may be the hallmark of the Bush Administration's public land policies.

Keywords: public lands law, environmental law

JEL Classification: K11, K32