The Ninth Circuit has reversed the exemption of Alaska from the Roadless Area Conservation Rule. The case highlights some limits on the role of politics in agency decision-making.
While the dissent correctly asserts that “elections have consequences,” so do facts. While Congress may choose to ignore them, the administrative and judicial branches may not. The Ninth Circuit en banc review found that the Forest Service failed to explain why it ignored factual findings it had made under the previous Administration.
“Thus, contrary to the contentions of both Alaska and dissenting colleagues, this is not a case in which the Department—or a new Executive—merely decided that it valued socioeconomic concerns more highly than environmental protection. Rather, the 2003 ROD rests on the express finding that the Tongass Forest Plan poses only “minor” risks to roadless values; this is a direct, and entirely unexplained, contradiction of the Department’s finding in the 2001 ROD that continued forest management under precisely the same plan was unacceptable because it posed a high risk to the “extraordinary ecological values of the Tongass.” 66 Fed. Reg. at 3254. The Tongass Exemption thus plainly “rests upon factual findings that contradict those which underlay its prior policy.” Fox, 556 U.S. at 515. The Department was required to provide a “reasoned explanation . . . for disregarding” the “facts and circumstances” that underlay its previous decision. Id. at 516; Perez, 135 S. Ct. at 1209. It did not.
“The 2003 ROD does not explain why an action that it found posed a prohibitive risk to the Tongass environment only two years before now poses merely a “minor” one. The absence of a reasoned explanation for disregarding previous factual findings violates the APA. “An agency cannot simply disregard contrary or inconvenient factual determinations that it made in the past, any more than it can ignore inconvenient facts when it writes on a blank slate.” Fox, 556 U.S. at 537 (Kennedy, J., concurring).”
An agency has some explaining to do when it changes its mind, and that is going to be problematic if the underlying facts haven’t changed. The Forest Service should think about that when it contemplates finding (under the new planning rule) that species it had classified as sensitive because of risks to their viability do not qualify as species of conservation concern because of lack of concern for their viability.