President Trump’s decision to reduce the size of two national monuments in Utah—Bears Ears and Grand Staircase-Escalante—has been a political lightning rod. Outdoor gear company Patagonia replaced its homepage with the message “The President stole your land.” Environmentalists and tribes have protested and filed lawsuits. Others have praised the President, including Utah politicians, local residents, and local tribes. (Picture by Jack Fowler.)
The N.Y. Times recently unveiled documents obtained under the Freedom of Information Act suggesting that potential oil revenues were a factor in the Department of Interior’s recommendation to reduce these monuments.
Even before President Trump officially opened his high-profile review last spring of federal lands protected as national monuments, the Department of Interior was focused on the potential for oil and gas exploration at a protected Utah site, internal agency documents show.
This latest twist will undoubtedly fuel the continuing political fight over monuments. But, in the short term, it is unlikely to have any significant effect. It likely won’t, for instance, lead to the invalidation of the President’s decision. In the long term, this political conflict should lead to a broader reconsideration of the Antiquities Act—and, in particular, the unchecked discretion it gives Presidents over broad swaths of federal lands. That is a tremendous amount of power to give one person and a recipe for needless political conflict.
I’ve previously explained why I think the legal challenge to the President’s decision will fail. (See this Washington Post article, this law review article, and this paper for a recent presentation at Tulane.) That view is unshaken by the President’s possible consideration of oil revenues. In brief, unilateral executive actions, like regulations and monument designations, are inherently subject to presidential reconsideration. Permanent policy can only be established through Congress. Consistent with this principal, there is a long history of Presidents modifying national monument boundaries to suit their political interests.
For better or worse (mostly the latter in my view), national monument decisions are left to raw presidential politics. The Antiquities Act never requires a monument to be established in any circumstances and places no limit on what factors a President can consider when deciding whether to create a monument, forego creating one, or modifying or revoking one. For instance, it is beyond question that a President could refuse to establish a monument—no matter how clear the case for one—based on any political factors he wishes to consider, including oil revenues or local opposition. Likewise, the Antiquities Act places no limit on the political factors a President can consider in establishing a monument, whether they be securing a legacy, preventing a lawful but unpopular economic activity, or payback against political rivals. That same unchecked discretion applies to the decision to modify or revoke national monuments.
Because monument decisions are left to raw presidential politics, opponents of these decisions generally only have a political recourse. That should satisfy no one. As the President’s recent reduction decisions show, the unchecked power and lack of process that people accept when they approve of the President’s actions can easily be turned on them under a future President. In the long run, everyone would be better off if there were clearer guidance when a monument could be created and when it could be reduced or revoked.
The blame for that situation lies with Congress, which chose to give the President absolute discretion on the issue. Thus the solution can only come from Congress, by reforming the Antiquities Act to ensure that federal land decisions reflect reasonable compromises rather than yo-yoing based on presidential whim.