No EISs for Forest Plans? At the time a revised planning rule was released in 2005, and then 2008, NEPA compliance was among the most criticized piece of those rules. The preamble to the 2008 rule explained the reasoning that this provision was included (p. 21473):
Throughout 28 years of land management planning, the Agency has learned that tiering to the cumulative effects analysis in a plan EIS did not provide nearly as much useful information at the project or activity level as the Agency had expected. The effects analyses in plan EISs were often too general to meet analytical needs for projects and activities. Meaningful cumulative effects analyses cannot be conducted until project design and location are known or at least reasonably foreseeable. Plan-level analysis would, however, evaluate existing conditions and broad trends at the geographic scale of the planning area. The Department believes these rules provide for the development and consideration of planning alternatives with much more robust public participation than previously afforded.
What’s the problem?
Tulane law professor Oliver Houck wrote an opinion piece last year in the Environmental Law Institute’s Environmental Law Reporter entitled “How’d We Get Divorced?: The Curious Case of NEPA and Planning.” 39 ELR 10645, July 2009
Houck explains that the framers of NEPA back in 1968 were concerned that the environmental crisis stemmed from poor planning, which NEPA was to address, and that the Forest Service (along with the Federal Highway Administration) was front and center as an agency most in need of the NEPA remedy. However, he explains that over time courts have allowed agencies to not only divorce NEPA from planning, but to relegate it to what he calls the latest, smallest, and most foreordained step in the process.
As early as 1991, Houck was advising CEQ to strengthen the link between broad planning and NEPA:
“NEPA is missing the point. It is producing lots of little statements on highway segments, timber sales, and other foregone conclusions; it isn’t even present, much less effective, when the major decisions on a national energy policy and a national transportation policy are made. On the most pivotal development questions of our time, NEPA comes in late in the fourth quarter, in time to help tidy up … As I see it, CEQ’s challenge is not, per your invitation, to make NEPA a “succinct review for a single project.” It is rather to make NEPA work for legislative proposals and for programs that all but conclusively determine what the subsequent projects will be.”
Houck explains that some agencies like the Park Service and DOE have applied NEPA conscientiously to planning decisions. He says the BLM has waxed and waned on the issue, applying NEPA to range management plans but trying to avoid NEPA altogether for oil and gas leasing.
Regarding the Forest Service, Houck rejects the agency’s traditional arguments about NEPA and forest planning. As far as flexibility, he says there is no reason that an EIS cannot be written on a flexible plan. As far as saving time during the planning process, he says that the Forest Service is actually saving more time in the long run with the availability of “tiering”.
He concludes that the real reason that agencies don’t want to do EISs are human reasons. On big decisions, NEPA puts other people’s noses in their business. Other people ask embarrassing questions, propose unwanted alternatives, go to the press, make things difficult, even change outcomes. For employees that have been educated to manage the forest in a certain way, they naturally wouldn’t want to let outsiders in to simply challenge what they are doing. He concludes:
“NEPA is so difficult because its few demands are so counterintuitive, so contrary to normal human behavior: think long term, reveal your defects, expose your risks, consider other ways of doing things than the one you have in mind, let others in on these considerations, which after all are your responsibility, not theirs, and about which you may (but less often than you think) know more than they do, and then actually agree that another way is better. These are a very hard ask. For all of these reasons, attaching NEPA to planning, the heart of all decisionmaking, remains as stiff a challenge today as it was in 1969. When this very idea gave rise to a process that is so magnificent in its ambition and so unfulfilled.”
Are these criticisms correct?