If someone is hiking, mountain biking, skiing or offroading in Colorado, there’s a decent chance that they’re doing it on federal land. More than a third of the state’s land is owned by the federal government, with a particularly high concentration of that federal ownership west of the front range divide.
While recreation is a favored use for many residents and tourists of the state, federal lands are used by a wide variety of businesses and people. The land used for cattle grazing, wind turbines, hiking, skiing and oil and natural gas wells are all connected in Colorado by the state’s largest landowner and the leasing process required to use those lands.
The laws and regulations around those lands, and the leasing of them, have changed over the past couple decades, and more changes are on the way.
Federal Whiplash
Over the past two decades, federal priorities have seen significant shifts as the White House has traded hands from former President Barack Obama, then to President Donald Trump, then former President Joe Biden and back to Trump again. While the priorities have contrasted sharply between the two Democratic presidents and Trump, there were also differences between the Obama and Biden administrations.
Katie Schroder, a partner at Davis Graham and co-chair of the firm’s clean energy and sustainability group, said what she saw as a big focus of the Obama administration in the public lands space was taking away $2 and giving $1.
“We saw the Obama effort to narrow the areas where particularly conventional energy development could occur,” Schroder. “So physically narrow the areas. For example, with sage-grouse management plans. We saw big parts of the West that weren’t technically off-limits for development, but where development was discouraged.”
But she noted that there was a different tack, or at least a different perception, when it came to areas where development could occur under the Obama administration. That involved a perception of a streamlined permitting process in those areas. Schroder said that one phrase that was particularly in vogue between 2012 and 2016 was “compensatory mitigation.”
“We saw this idea that we were going to treat every resource like we treat national level wetlands, where if you have an impact you can offset that impact somewhere else,” Schroder said. Those programs were nixed by the Trump administration. Schroder said that while the Biden administration reinstated some of the policies, they didn’t promote these mechanisms like the Obama administration did.
The Obama administration also worked to publish a series of rules before it handed over the Oval Office to the Trump administration.
That included BLM’s Planning 2.0 Initiative, which aimed to give the public more input in federal land management decisions. Planning 2.0 was killed in March 2017 by the U.S. Senate. Schroder said there were also some revisions to technical oil and gas rules. “There was this kind of big dump of rules,” Schroder said. “A lot of the first Trump administration was really trying to reset the clock on those regulatory efforts.”
“It was a little bit of a mix of trying to rewrite the [National Environmental Policy Act] regulations to encourage streamlining in permitting efficiencies, some changes to the implementation of the Migratory Bird Treaty Act and everything else was trying to sort of reset what Obama had done,” Schroder explained.
She said that under the Biden administration, there were heavier lifts attempted in changing the philosophy of how federal lands are managed, brought on in part by the time crunch imposed by the fact that it could have been a one-term presidency.
Of particular note to Schroder is the Conservation and Landscape Health Rule, which elevated conservation as one of the principal uses of public lands under the Federal Land Policy and Management Act. That rule was published on May 9, 2024.
But there was also work done earlier in the Biden administration, including a moratorium on onshore oil and gas leasing. That didn’t last forever, in part due to a compromise with federal legislators.
Schroder explained that part of one of the administration’s landmark pieces of legislation, the Inflation Reduction Act, directly linked federal land leases for wind and solar energy to oil and gas development.
“The administration had to be leasing for oil and gas development in order to lease for wind and solar, which was a major priority of the administration,” Schroder said. In addition, there was also an increase in the minimum royalty for oil and gas leases of more than 4% and an end to non-competitive oil and gas leases through BLM.
“We did see changes in the IRA to oil and gas leasing and development on federal lands that were the most significant since 1987,” Schroder added.
More changes may be on the agenda. Trump has stated his intent to expand America’s fossil fuel production, and he spoke about federal lands directly in his March State of the Union.
“The previous administration cut the number of new oil and gas leases by 95%, slowed pipeline construction to a halt and closed more than 100 power plants,” Trump said. “We are opening up many of those power plants right now. And frankly, we have never seen anything like it. That’s why in my first day in office I declared a national energy emergency.”
“As you’ve heard me say many times we have more liquid gold under our feet than any nation on earth and by far,” Trump added. “And now I fully authorize the most talented team ever assembled to go and get it. It’s called, ‘Drill, baby, drill.’”
Impacts on Environmental Reviews
For decades, the Council on Environmental Quality oversaw the regulatory framework for environmental reviews under NEPA. But in November 2024, the D.C. Circuit Court of Appeals concluded that the council didn’t have the authority to issue regulations that bind how other agencies implement NEPA, Schroder said.
She noted that one of the first executive orders issued by the Trump administration agreed that the CEQ doesn’t have that authority and directed the CEQ to rescind its regulations. “NEPA is in this kind of state of upheaval because no one really knows what’s going to come out on the other side,” Schroder said.
“There’s been a lot of change as it relates to the rollback of the CEQ regulations,” Tina Van Bockern, a partner at Holland & Hart, said. “Those are now off the books. So what does that mean for future NEPA evaluations? But we’re still waiting to hear from the Supreme Court on the scope of NEPA effects analysis. How far upstream and downstream do the agencies need to be evaluating the impacts of the proposed actions?”
Van Bockern noted that for many operators, the delays brought by the NEPA process were a thought when choosing whether or not to be on federal lands.
“Whether it is oil or gas or a renewable project, wind, solar, transmission, anything that’s going to go along for energy, if you’re on federal lands or you’re requiring federal permits, NEPA is going to slow you down,” Van Bockern said.
Doug Benevento, a partner at Holland & Hart, said that the current administration is now breaking NEPA into its component parts and telling different agencies to come up with their own approach to it.
“NEPA is going to warrant a lot of looking at over the next couple of years as they put together what the different agencies are going to do and how they are going to manage NEPA within constraints that they are going to place on themselves in order to make it workable,” Benevento said.