Congress Declares Open Season on Public Lands

In a 50-49 vote on Thursday, the Senate approved opening a national forest just outside the Boundary Waters Canoe Wilderness Area in Minnesota to a copper-nickel mining operation, a move that environmentalists and conservationists say will pollute the downstream watershed and set a precedent for future rollbacks on protected public lands.

The upper chamber’s decision follows a near-party-line House vote in January and months of subsequent protests, op-eds, and pleas to senators to preserve the wilderness expanse and recreation area. The level of mobilization has been reminiscent of the early days of the second Trump administration, when public outrage erupted against the efficiency department’s gutting of the beloved National Park Service. This time, the focus was on House Joint Resolution 140, which had made its way onto a Senate calendar already crowded with debates over funding for the Department of Homeland Security and the limits of war powers.

The Boundary Waters is America’s most heavily visited wilderness area, supporting an estimated $16 billion recreation-based economy in the region. Minnesota’s Democratic Senator Tina Smith, who held the floor on Wednesday night in protest of revoking the protections, said that a poll by her office found that 70% of residents in the state believe preventing pollution from the mine should be a top priority for their elected officials.

Democratic presidents had managed to stave off the copper-nickel mining operation on the Boundary Waters’ doorstep for almost 20 years by way of a mineral withdrawal. Then, this winter, the House utilized the Congressional Review Act to reopen consideration of the withdrawal. With Thursday’s vote, Senate Republicans handed a victory to the Chilean mining company Antofagasta and its subsidiary, Twin Metals Minnesota, which has a plethora of connections to Trump administration officials. President Trump is expected to sign the bill. (Twin Metals did not respond to a request for comment.)

Because of the use of the CRA, though, it wasn’t just the fate of the Boundary Waters watershed that was decided swiftly — and perhaps permanently — on Thursday, just days before the 60-day clock would have expired. The vote is “the tip of the spear in terms of setting a precedent,” Ingrid Lyons, the executive director of Save the Boundary Waters, had told me prior to the Senate’s vote.

Justin Meuse, the government relations director at The Wilderness Society, was even more direct when I spoke to him last month. “I can’t stress enough how much it’s freaking us out,” he said.

The Congressional Review Act was originally a bipartisan bill passed in 1996 as a mechanism for the legislative branch to oversee agency rulemaking. The law requires that federal agencies submit final rules to Congress and, in doing so, triggers a 60-day window for the House and Senate to pass a joint resolution of disapproval of those rules via a simple majority. If the president signs the resolution, then the agency’s rule is void, and the agency is further barred from issuing a “substantially similar” rule in the future.

“It wasn’t used for a long time, and people thought it was dead,” Susan Dudley, the former director of the George Washington University Regulatory Studies Center, told me of the CRA. “Then people, including me, said, ‘Okay, the only time we’ll be seeing it used is during transitions, so an incoming president of a different party or with different policy preferences can undo last-minute regulations of the prior president” — so-called midnight regulations such as a Clinton-era Occupational Safety and Health Administration rule that would have established ergonomic protections for workers, and that Congress and President George W. Bush blocked in early 2001.

Opponents had taken to calling the CRA “secretive,” “archaic,” and “obscure.” Then, during the first Trump administration, Republicans passed 15 joint resolutions of disapproval to void late-term Obama rules that would have established fair pay, mandated recordkeeping on workplace injuries, and environmental protections, among other lefty goals. The Biden White House also used the mechanism against three Trump-issued rules — including one that loosened methane emission limits —and paced its own rulemaking with the ticking CRA clock in mind.

Under Trump 2.0, Republicans have stretched the CRA’s deregulatory powers. In defiance of the Senate Parliamentarian last year, conservative members of Congress used the CRA to overturn a waiver that allowed California to preempt the Clean Air Act by setting its own stricter-than-federal emissions standards for cars and trucks. Opponents were outraged. A “waiver” is a state- and site-specific authorization, they argued, distinct from agency “rules” as defined by the CRA.

Most alarming to conservationists, though, is the fact that Republicans are now using the CRA to attack public land protections in myriad ways. Congress has already used the act to target resource management plans, which are the Bureau of Land Management’s guidelines for allowable land use ranging from oil and gas leases to renewable energy rights-of-way. Last summer, the Government Accountability Office determined that an RMP banning coal leases across millions of acres of eastern Montana counted as a “rule,” a determination that Dudley told me was in keeping with the original intent of the CRA, which defined “rule” expansively. But it also created a loophole that allows Republicans to submit any RMPs enacted since the CRA became law in 1996 for consideration by the GAO. Each time they do so, it resets the 60-day clock to submit a resolution of disapproval, even if the resource management plan was established decades ago.

“We literally have hundreds of land use plans that have been finalized over the last 30 years,” John Ruple, a research professor of law at the University of Utah’s Wallace Stegner Center for Land Resources and the Environment, told me. “The fact that none of those were submitted to Congress — even though Congress had these GAO opinions in front of them that said, ‘Yeah, technically, these are probably rules,’ they never objected. I think that should tell us something: RMPs were meant to be treated differently.”

In the case of the Boundary Waters, the CRA voids a 20-year-old withdrawal of watershed lands from mineral leasing, which the BLM finalized in 2023 but only submitted to Congress earlier this year.

Though many of the conservationists I spoke to argued that a mineral withdrawal doesn’t qualify under the CRA to begin with because it’s not federal rulemaking, Todd F. Gaziano — who served as the chief counsel of the subcommittee on regulatory affairs during its passage in 1996, and was the primary staffer who drafted the final version of the legislation — disagreed. He told me that CRA was always intended to have a broad mandate in order to prevent circumvention by agencies — say, by issuing “guidance” rather than a formal “rule.” As Gaziano put it to me, “If people outside government care about it, and it’s an agency statement that’s going to have a future effect, that sounds like a rule covered by the Congressional Review Act.”

Ruple stressed to me that focusing on what is or is not a rule misses the greater point. Whether it’s legal or not, using the CRA to undo land management plans is a “really bad idea,” he said. “It’s really dangerous, it’s really destabilizing, and it injects tremendous uncertainty into the land management process.”

A major concern is that, because of the CRA’s provision barring a federal agency from issuing a “substantially similar” rule in the future, a resolution of disapproval effectively salts the earth behind it. “It’s a sledgehammer rather than a tool to tweak a regulation that Congress might think should be better,” is how Dudley, the former Regulatory Studies Center director, put it to me. That’s also Ruple’s point — there are many other avenues Congress can pursue if it disagrees with an agency, from sending letters to calling in staff to testify, before the nuclear option of the CRA.

Nevertheless, there are fears about what Republicans in Congress will target next — the party appears poised to test the CRA against a national monument. Republican Representative Celeste Malloy and Republican Senator Mike Lee, both of Utah, introduced a joint resolution to undo the Grand Staircase-Escalante National Monument Management Plan under the CRA after getting the GAO’s go-ahead this winter. “It’s a really big escalation to go from knocking off land‑management plans versus tackling a national monument,” Steve Bloch, the legal director of the Southern Utah Wilderness Alliance, told me earlier this year. “There are lots of monument management plans in the country that would be at risk if this one falls.”

There will likely be a regrouping in the aftermath of Thursday’s defeat on Boundary Waters to reconsider how to protect public lands. Jim Pattiz, a co-founder of the website and public lands newsletter More Than Just Parks, told me ahead of the vote that he expected a lawsuit to follow in short order if the vote didn’t go conservationists’ way. “Hopefully they can get an injunction, they can get a class action, and at least put a hold on this, and it can play out in courts,” he said.

But Ruple seemed to believe the crisis is even more existential — not just a case of micromanaging, but a sign of how far the legislative branch has drifted from its intended purpose in the name of party politics. “Congress can’t even pass a budget. Do we really expect them to delve into the minutiae of hundreds of land management plans?” he said.

Gaziano had a different take: “Congress may not want responsibility,” he argued, “but it’s got it.”

As the Boundary Waters vote makes clear, though, even tremendous outcry isn’t enough to sway this Congress from its attack on public lands. “I don’t want to speculate, but I’m not sure what type of action they’re going to go after next because it keeps getting more and more granular,” Meuse, of The Wilderness Society, said. “It really does seem like, as long as there is a willing majority in both chambers, there isn’t an end in sight.”