Climate tipping point for forests

www.e-education.psu.edu

Add to this diagram – “Respiration (when overheated).”

We’ve talked about how older forests may sequester less carbon and dead forests release carbon (for example, here).  New research indicates that forests also sequester less carbon and start to release carbon (while they are still alive) if the temperature gets too high.  As reported here:

‘We’re in Bigger Trouble Than We Thought’

The data show a clear temperature limit, above which trees start to exhale more CO2 than they can take in through photosynthesis, said co-author Christopher Schwalm, an ecologist and earth system modeler at the Woodwell Climate Research Center. The findings mark a tipping point, of sorts, at which “the land system will act to accelerate climate change rather than slow it down,” Schwalm said.

“Seeing such a strong temperature signal globally did not surprise me,” he said. “What I was surprised by is that it would happen so soon, maybe in 15 to 25 years, and not at the end of the century.”

Other researchers commented on management implications of drought-stressed dying trees:” 

It may come down to looking at options for saving valuable, individual stands of trees,  and protecting genetically distinct and more resilient species. It could also be important to conserve corridors and patches of woodland to reduce the distance seeds must travel to enable forests of the future to spread or reconnect under more favorable climate conditions, he explained.

“We think a lot of these areas are going to go down, so where can we save some of it?” he asked.

There are obviously implications here for national forest planning.  It seems like it should be the role of the national headquarters to review and interpret the implications of new research for forest management, and to advise national forests regarding its implications for their plans and whether they should consider making changes.

FOIA in the Supreme Court

The U. S. Supreme Court has issued its decision in United States Fish and Wildlife Service. v. Sierra Club (March 4, 2021), the Freedom of Information Act case we have discussed previously.  The EPA changed its proposal for cooling water intake structures at power plants after receiving a draft biological opinion from the consulting agencies that found the proposal would jeopardize listed species.  In a 7-2 decision, the Court reversed the lower court decisions and held that a draft biological opinion on the effects of the original proposal, which was shared informally between the EPA and the consulting agencies, was exempt from disclosure under FOIA as a predecisional and deliberative document.  Specifically, “the determinative fact is not their level of polish—it is that the decisionmakers at the Services neither approved the drafts nor sent them to the EPA.”  This shows that the consulting agencies did not “treat them as final,” which is consistent with the context of the consultation regulations.

The ESA consultation process makes this case more confusing than it needs to be.  Normally, drafts circulated among members of a government team would qualify as deliberative, but here the team is comprised of multiple agencies following prescribed interagency consultation procedures.  A “draft” biological opinion is specifically identified by consultation regulations, and it must be provided by the consulting agencies if requested by the action agency.  In this case, the draft was provided by consulting agency staff without official signatures.  Without those signatures, it was not the final position of the consulting agencies, even though it had the effect of EPA changing its proposal.  With those signatures, apparently a draft biological opinion would have been “final” for the purpose of FOIA, and should have been disclosed.  (This may or may not have been the result of good lawyering, but it would be good lawyering to so advise in the future.)

The Court doesn’t dig into the other aspects of this FOIA exemption, one of which is that factual material is not deliberative and must be released, or therefore the question I raised about the need to disclose the science on which the deliberations were based. Apparently, that would happen here on a remand to determine what is “segregable” non-exempt material.  I wonder whether the scientific conclusions about the effects of the original EPA proposal are also considered deliberative because they were not yet “officially approved.”

A more typical case, which does address this question, is this new one from the D. C. District Court involving Florida Key deer and its Species Status Assessment (Sierra Club v. United States Fish and Wildlife Service, Feb. 26. 2021).

On its face, a factual scientific report, produced “independently from any” regulatory or policy decisions, see FWS Letter Describing SSA, does not qualify as deliberative…  Nothing in this description indicates that the report contains “advisory opinions, recommendations[, or] deliberations” regarding the agency process at issue.

Yet, while the privilege does not generally extend to mere factual recitations, (citation omitted) “the D.C. Circuit has cautioned against overuse of the factual/deliberative distinction.”  Such hesitation stems from the recognition that the drafter’s selection of facts can itself reveal the decisionmaking process.

This case also addresses the need for agencies to demonstrate harm to their deliberative process that would result from disclosing these records, which the Supreme Court does not address in the EPA case.  Public response to the case, including suggestions for congressional action, is discussed here.  (This article includes a picture of the the power plant at issue.)

Woodman spare that forest (the climate needs it)

Source: Biodiversity Sri Lanka

I’ve been wondering if there is a straightforward answer to the question of how to best manage forest lands to sequester carbon for the foreseeable future to reduce potential climate change impacts.  We’ve beaten around that bush a few times, such as here.

I thought such an answer might be found in the kind of forest management activities carbon offset programs are willing to pay for.  I recently ran across this example, which describes two new programs for small forest landowners.

“Forest carbon projects have historically faced skepticism around their additionality and potential for leakage — that is, the shifting of tree removals to nearby acreage. The concern is that despite paying a landowner to keep trees on one parcel, the same number will simply be removed elsewhere, resulting in a null offset with no net change in carbon storage. Yet SilviaTerra believes this problem can be addressed by creating a market in which all landowners are eligible to receive carbon payments as an alternative to timber revenues…  Payments are scaled to target the timeframe when forests have matured to a point of likely timber harvest… SilviaTerra believes that timber harvest deferrals hold the potential for removing over a billion tons of atmospheric carbon within the United States in the coming decade, or 4.3 billion tons globally.”

SilviaTerra is paying landowners to not harvest mature trees now, and presumably they would continue to do that indefinitely for a parcel because, (according to this article on the carbon value of old forests), “We now know that the concept of overmature forest stands, used by the timber industry in reference to forest products, does not apply to carbon.”   The Family Forest Carbon Program pays for “improved forest management practices,” “such as removal of invasive species or limiting thinning.”  Both seem to treat the answer to my question as obvious – the best management for carbon is “don’t cut down trees.”

Here is what the Forest Service has had to say about the best available science.  This 2017 General Technical Report covers a lot of the pros and cons and questions and considerations and reservations that we have previously discussed, such as wood products, wood energy and fire risk, but if the goal is to “maintain and increase carbon stocks,” the best answer appears to be “decrease carbon loss:”

“Decreasing the intensity of forest harvest is one way to decrease carbon losses to the atmosphere (McKinley et al. 2011, Ryan et al. 2010). Across diverse forest systems, the “no harvest” option commonly produces the highest forest carbon stocks (Creutzburg et al. 2015, Nunery and Keeton 2010, Perez-Garcia et al. 2007).”

The Report was written for a broad audience of landowners and managers, so it also discusses options for managed stands:

“Managed stands typically have lower levels of forest biomass than unmanaged stands, even though the annual rate of sequestration may be higher in a younger forest. In managed forests, reducing harvest intensity, lengthening harvest rotations, and increasing stocking or retention levels will generally increase the amount of carbon stored within forest ecosystem carbon pools in the absence of severe disturbance (D’Amato et al. 2011, Harmon 2001, Harmon and Marks 2002, McKinley et al. 2011, Taylor et al. 2008b).”

However, they also provide caveats and qualifiers associated with obtaining overall carbon benefits from any strategy that removes trees, which make it clear this would likely be a second-best strategy for carbon sequestration.

With regard to national forests, the Report recognizes the role of NFMA and forest plan revisions:

“Assuming carbon is one of these key ecosystem services, the plan should describe the desired conditions for carbon in the plan area that may vary by management or geographic area. In developing plan objectives, the interdisciplinary team should consider the linkage between carbon and how plan objectives would contribute to carbon storage or sequestration. Standards and guidelines may also be needed to achieve desired outcomes for carbon.”

We shouldn’t have to just assume the importance of carbon sequestration, since that is a decision a forest plan could make.  With an incoming administration that has said it would integrate climate change into everything it does, a good question to ask them would be why should the Forest Service not establish in its forest plans the desired outcome to “maintain and increase carbon stocks.”  This should create a presumption or default that trees should not be removed unless the Forest Service can demonstrate scientifically that it would improve carbon sequestration (apparently difficult to do), or if it would meet some other goal that the planning process has determined is a higher priority than climate change (such as public safety).  Climate change mitigation has typically been diverted to a side-channel during forest planning, but there doesn’t seem to be any excuse now for why at least managing for carbon sequestration isn’t mainstream.

Rim Fire, logging and spotted owls

Here is some timely recent research on what happens to spotted owls after a fire, in particular the Rim Fire which comes up often on this blog (thank you, Larry).  That discussion has often dealt with the effects of post-fire salvage logging, such as the discussion here.  This research discusses the effect of the condition of the forest before the fire on its value to owls after the fire.

This is important because of the argument by some that fires are bigger threat to the owls than cutting down trees to reduce fire risk.  I’ve only looked at this overview and the linked abstract, but it seemed like enough to generate some discussion.  In particular, it contrasts the pre-fire management of Yosemite National Park and the adjacent Stanislaus National Forest.

From the abstract:

Spotted owls persisted and nested within the fire perimeter throughout the four post-fire years of our study at rates similar to what we observed in areas of Yosemite that were unaffected by the fire…  Prior to the fire, spotted owls selected for areas of high canopy cover relative to the rest of the landscape; after the fire, even though territory centers shifted substantially from pre-fire locations, pre-fire canopy cover remained a stronger predictor of spotted owl presence than post-fire canopy cover, or any other pre- or post-fire habitat variables we assessed.

So removing canopy cover, which seems to be one of the goals of fuel reduction, would not benefit the owls even if it reduces fire risk, and it would adversely affect them whether there is a fire or not.

From the lead author:

California Spotted Owls can tolerate forest fire, but Schofield cautions that not all fires are created equal. Yosemite’s forests have not been commercially logged since the early 1900s and fire suppression efforts since the 1970s have been kept to a minimum. This results in a forest structure and fire regime that is distinct from what is found outside of the park.

“In Yosemite there is a diversity of forest habitat” explains Schofield, “This means the Rim Fire burned with a diversity of severities creating a range of post-fire habitat for owls to choose from.” The study notes that in portions of the adjacent Stanislaus National Forest that were also burned by the Rim Fire, burn severity was more homogenous likely due to the contrasting logging and fire management regime on the National Forest.

 

 

Stanislaus spotted owl plan amendment

Photo of female and juvenile California spotted owl courtesy of University of California Cooperative Extension (http://ucanr.org/sites/spottedowl/).

We recently looked at the Biological Assessment of Northwest Forests, and the options for proceeding with revising forest plans currently governed by the Northwest Forest Plan. Some of those options involved amendments to existing plans prior to plan revision. I voiced support for amendments that would provide the ecological conditions needed for at-risk species. I thought this might be an example to look at for how that might go.

The Stanislaus National Forest is not in the area covered by this assessment. Its forest plan was originally completed in 1991, but it was amended by the Sierra Nevada Forest Plan Amendment (or Framework) in 2004, which is roughly analogous to the Northwest Forest Plan in that it had its origins in the work done to protect the California spotted owl (it has its own complicated political and legal history). Now the Stanislaus is proposing an amendment for a part of the Forest in conjunction with what it calls the Social and Ecological Resilience Across the Landscape (SERAL) project.

The Forest has identified a need to change the forest plan based on new information about the California spotted owl, as published in 2019 by the Forest Service in the “Conservation Strategy for the California Spotted Owl in the Sierra Nevada.”

In order to fully adopt and implement the management direction described in the Conservation Strategy and increase landscape resiliency as guided by NRV the Stanislaus National Forest’s forest LRMP must be amended. The proposed forest plan amendments would allow the SERAL project’s proposed landscape restoration treatments to best meet the purpose and need of the project and implement the guiding principles of the 2019 California Spotted Owl Conservation Strategy. The proposed amendments include standards and guidelines which will provide some immediate stability for individual owls while allowing forest management the ability to conduct treatments designed to help develop resilient habitat conditions that provide CSO conservation in the long term.

Unfortunately, the CSO Conservation Strategy was apparently written for a narrower purpose than its name implies:

The California spotted owl (Strix occidentalis occidentalis) Conservation Strategy is a strategic framework for active conservation of the California spotted owl on National Forest System lands in the Sierra Nevada.

It appears to be something less than a scientific strategy. By limiting the focus to “active conservation” it has failed to address the central debate about managing spotted owl habitat regarding when active management should even be used. Passive management is one obvious alternative to this amendment that the Forest is going to have to address in its amendment process. But I looked at some of the proposed changes in the forest plan.

The current plan designates spotted owl Protected Activity Centers (PACs) as management areas in the forest plan (which could be changed only by amending the forest plan). This proposed amendment would replace current management areas with guidelines to designate PACs later “in advance of any management activities that would reduce CSO nesting and roosting habitat quality.” The guidelines include criteria for delineating and changing PAC boundaries.

My opinion: This is not a coarse filter management strategy based on vegetation because it depends on actual owl presence based on surveys, or one might call it “condition-based.”  If owl presence is the kind of thing that changes frequently, this may be a reason to not designate permanent management areas at the plan level.  However, this creates the risk of cutting the public out of the part of the process that actually determines the locations for management.  The plan is no longer saying, “here is where we’ll manage for owls,” but instead, “we’ll manage for owls where we think we need to manage for owls, trust us.”  The criteria must be explicit and objective enough to fully evaluate at the plan level, and the decisions about whether and how to apply them at the project level must include the public. Given the importance that surveying would take on, there is no excuse for these being guidelines rather than standards. It seems to me that the certainty of owl protection, and therefore the viability of the species, is going to be reduced.

There are a lot of new plan components in the amendment, and the CSO Conservation Strategy is page-referenced for most of them. That’s how any conservation strategy should be used, so maybe this is a good example of that. Except that it strikes me that this “conservation strategy” may have actually been written as a “drop-in” amendment to be used this way (which makes that kind of cross-referencing a lot easier). This is similar to what would happen if plan amendments were developed that could be later “dropped in” to forest plan revisions. The problem is that if the “conservation strategy” is already a management-influenced document and not a science document, there would still need to be a reference to the actual scientific basis for these conservation recommendations that are being adopted.

Anyway, this project/amendment will be worth watching as it applies the 2012 Planning Rule diversity requirements to California spotted owls. And it may be setting some precedents for what could happen regarding how to plan for management of spotted owl habitat on other national forests.

Range of variation webinar (and more)

This is a topic that at least Sharon and I like to debate (though for some reason she didn’t weigh in here).  The Western Environmental Law Center is offering this hour and half webinar on July 17.  As far as I know, it’s open to the public.

PNW Forest Collaboratives Workshop Series Part 3: Historical Range of Variability (HRV): Uses and Various Approaches
 
Range of Variability (ROV) concepts – including Natural (NRV), Historic (HRV), Current (CRV), and Future (FRV) – are frequently used by the US Forest Service to help define land management goals. Nathan Poage, Forest Service Ecologist, joins us to provide an introduction to ROV terminology and examples of how the Malheur, Umatilla, and Wallowa-Whitman National Forests in the Blue Mountains have applied ROV concepts during project planning when addressing key requirements of the Eastside Screens. The discussion will include overviews of tools commonly used to conduct ROV analyses. Q&A will follow the presentation.
This webinar will be on Friday, July 17 from 10-11:30am Pacific Time.
Registration is required for this event. Register today by clicking this link.
Note that it also involves the Eastside Screens.  I don’t think I can make it, but I’d be interested in hearing about it.  I also wanted to point out that this is about how to apply these concepts to projects developed under antiquated forest plans that don’t include the concepts.  It was this kind of thinking that drove development of the requirement to do this instead as part of revising forest plans under the 2012 Planning Rule.  Natural Range of Variation (NRV) embraced by the Planning Rule is a required desired condition for ecosystems, which should not change over time, and therefore should not be redecided for each project.  I’d be interested in knowing how, once ROV is determined for a particular project here, it is then documented and used for future projects in the same ecosystem.
But maybe there would be more interest in this one:
PNW Forest Collaboratives Workshop Series Part 2: Collaborative Administrative and Judicial Review Opportunities
In this follow-up webinar to NEPA 101, WELC attorney Susan Jane Brown will give a presentation on and answer your questions about collaborative administrative and judicial review opportunities, and dig deeper into the administrative review process for the Forest Service, judicial review of agency decisions, and how collaborative groups can engage in these processes.
This webinar will be on Thursday, July 9 from 10-11:30am Pacific Time.
Registration is required for this event. Register today by clicking this link.

The latest on forest plan revisions (and wildlife)

In the past couple of months the Forest Service has increased its family of forest plans revised under the 2012 Planning Rule to six.  The Chugach and Rio Grande national forests have joined the Francis Marion, Flathead, El Yunque, and Inyo.  The Forest Service revision schedule is over six months old, but the Helena-Lewis and Clark National Forest may be next.

Here’s what looks like a news release from the Rio Grande.

The plan prioritizes the use of active management to foster sustainable and productive use of the forest. Compared to the 1996 plan, this new plan is less prescriptive and emphasizes flexibility and commitments to working with the public. Management direction has been updated for all plant and wildlife species.

This seems to capture the mood of the Forest Service these days.  The only commitments it has ever liked are those they have to do any way, especially if they are check-the-box kinds of procedural commitments like “working with the public.”  In their “update” for wildlife, rather than commit to protecting wildlife as required by NFMA and the Planning Rule, they infuse the plan with discretion.  Here’s some examples of what the Rio Grande seems to feel (based on the best available scientific information) would “provide the ecological conditions necessary to: contribute to the recovery of federally listed threatened and endangered species, conserve proposed and candidate species, and maintain a viable population of each species of conservation concern within the plan area” – which plan components “must” do (36 CFR §219.9(b)).

DC-SCC-2: Structure, composition, and function of coniferous forests, including late seral forests, meet the needs of associated species, including species of conservation concern. (Forestwide)

There is a series of these desired conditions for different ecosystems that all say the same thing, which is “we’ll figure out what these species need later.”  The Planning Rule requirement is for “plan components” to meet the forest plan requirement, not for project-by-project decisions about how to protect at-risk species.  Let’s see if the standards and guidelines add anything …

G-SCC-3: To maintain viability of species of conservation concern, reduce habitat fragmentation and maintain structural conditions of sagebrush ecosystems through design of management activities. Patch sizes should not be less than 5 acres. (Forestwide)

TEPC-G-1: To avoid or minimize adverse effects to listed species and their habitat, management actions should be designed with attention to threatened, endangered, proposed, or candidate species and their habitats. (Forestwide)

Wow.  Apparently any “structural conditions” will do, but they at least appear to concede that there is a minimum patch size needed for some species in sagebrush ecosystems (this is actually the kind of “specific” desired condition the Planning Rule envisioned), but conversely there is not enough science to tell them what is needed for anywhere else.  If the courts say this is good enough, then the Forest Service has essentially excised the diversity requirement for forest plans from NFMA.  (Never mind the question of “how much did the Forest Service spend on forest planning to get THIS?”)  (This is a continuation of a pattern discussed here, and may lead to some of the same kinds of problems under ESA.)

Mt. Hood (lack of) science loses in 9th Circuit

The way courts approach scientific controversy is a common thread on this blog.  We happen to have a perfect example from the Ninth Circuit Court of Appeals (link to the opinion included) last week.  And it happens to involve the science of “variable density thinning” to reduce wildfire threats, another popular topic here.

The Project is the Crystal Clear Restoration Project on the Mt.  Hood National Forest.  The stated primary purpose of the Project is to reduce the risk of wildfires and promote safe fire-suppression activities.  It would use “variable density thinning” to address wildfire concerns, where selected trees of all sizes would be removed.  According to the plaintiffs, it  would encompass nearly 12,000 acres and include almost 3000 acres of logging of mature and old-growth forests along with plans to build or re-open 36 miles of roads.  The court held that an EIS was required because of scientific controversy about the effects of variable density thinning on what plaintiffs characterized as “mature, moist forest.”  The court also found that the Forest failed to show that cumulative effects would not be significant.

In both cases, the court found that the Forest “did not engage” with the information provided by the plaintiffs after, “The plaintiffs, especially Bark, got people out into the landscape and spent thousands of hours collecting information about what was going on in the land and gave that information to the Forest Service,” said attorney Brenna Bell, who spent four years on the case.  Failing to engage is a common reason for the Forest Service failing to win in court, especially when under pressure to meet “timber volume targets imposed by President Donald Trump’s administration.”

The EA stated that the Project would assertedly make the treated areas “more resilient to perturbations such as . . . largescale high-intensity fire occurrence because of the reductions in total stand density.”  Plaintiffs had provided “substantial expert opinion” that disputed that outcome.  As plaintiffs point out in their victory notice, here is how the court viewed it:

“Oregon Wild pointed out in its EA comments that “[f]uel treatments have a modest effect on fire behavior, and could even make fire worse instead of better.” It averred that removing mature trees is especially likely to have a net negative effect on fire suppression. Importantly, the organization pointed to expert studies and research reviews that support this assertion

Oregon Wild also pointed out in its EA comments that fuel reduction does not necessarily suppress fire. Indeed, it asserted that “[s]ome fuel can actually help reduce fire, such as deciduous hardwoods that act as heat sinks (under some conditions), and dense canopy fuels that keep the forest cool and moist and help suppress the growth of surface and ladder fuels . . . .” Oregon Wild cited more than ten expert sources supporting this view.”

Even the fuels report by the Forest Service acknowledged the possibility of increased fire severity. The court held (emphasis added):

“In its responses to these comments and in its finding of no significant impact, the USFS reiterated its conclusions about vegetation management but did not engage with the substantial body of research cited by Appellants. Failing to meaningfully consider contrary sources in the EA weighs against a finding that the agency met NEPA’s “hard look” requirement as to the decision not to prepare an EIS. This dispute is of substantial consequence because variable density thinning is planned in the entire Project area, and fire management is a crucial issue that has wide-ranging ecological impacts and affects human life.”

The opinion is short and worth reading as a good example of how not to approach NEPA effects analysis (i.e. “let’s make this fit into an EA instead of an EIS”).  The court cited 9th Circuit precedent for this requirement: “To demonstrate a substantial dispute, appellants must show that “evidence from numerous experts” undermines the agency’s conclusions.” The court is not choosing the science; only faulting the Forest Service for ignoring conflicting views that it found rose to a level of scientific controversy.  Under NEPA, evidence of scientific controversy requires an EIS to fully explore how the use of that science may be important to determining environmental impacts.

More research on less tree growth after fire

(RJ Sangosti, The Denver Post)

 

 

This article summarizes some recent research on the topic:

Among Stevens-Rumann,’s work was a 2017 study of nearly 1,500 sites charred by 52 wildfires in the U.S. Rocky Mountains. Her research found that lower elevation trees had a tough time naturally regenerating in areas that burned between 2000 and 2015 compared with sites affected between 1985 and 1999, largely due to drier weather conditions.

More recently, a 2019 study written by her colleague Kerry Kemp found that both Douglas fir and Ponderosa pine seedlings in the Idaho’s Rocky Mountains — just south of B.C. — were also struggling in low-lying burned areas due to warmer temperatures, leading to lower tree densities.

Both studies attribute climate change to be the lead cause of why the trees are struggling to grow back in certain fire-scarred areas.

As a result, some ecosystems will no longer be able to support tree species. Instead they may convert to grasslands, she said.

We’ve talked about this before (for example, here).  But I would like to know how this kind of information is being incorporated into long-term planning for timber harvest levels. In accordance with the requirement for sustainability on national forests, we should be assuming forest growth consistent with the natural range of variation, which should reflect the effects of climate change on future forests.  What I would expect to be seeing based on this kind of research is reduced area suitable for timber production because it would become too dry, and reduced volume resulting from reduced density, slower growth rates and more frequent fires.  “Sustained yield” means that projections of lower future timber yields may lead to reduced near-term volume. I’ve looked at the timber volume documentation for a few forest plan revisions, and I haven’t found anything there about climate change (there’s usually an unconnected section on the effects of climate change somewhere).  (Projected timber harvest volumes are not tending to go down in revised forest plans.)  Maybe that just requires digging deeper than the public-facing documents or maybe it’s not happening.   Does anyone know more about this?

Supreme Court to look at science and politics

In my experience, there have been lots of controversies where the issue is about what scientific information was considered by an agency but was suppressed or ignored by an administrator, often for allegedly political reasons.  It’s not unusual for the results of litigation to turn on documents that show an agency decision being arbitrary and capricious (violating the Administrative Procedure Act) because it is not supported by the record.  But do those kinds of documents have to be available to the public, and what if they weren’t?  The Supreme Court will be addressing such questions in U. S. Fish and Wildlife Service v. Sierra Club.  The case involves the Freedom of Information Act, and its requirement to make government records available subject to exceptions that may cause harm, in particular protection of an agency’s “deliberative process.”  (This exception generally lines up with requirements for what must be in an agency’s administrative record for a decision.)

The dispute stems from the Environmental Protection Agency’s 2011 proposal to change how it regulates power plants’ cooling water intake structures, which can crush or boil fish and other aquatic creatures.

The U.S. Fish and Wildlife Service and the National Marine Fisheries Service advised the agency on how the plan would affect threatened and endangered species. The services crafted draft opinions that said the EPA’s proposal was likely to harm protected species, but they later changed their conclusion and issued a “no jeopardy” finding.

When the Sierra Club used FOIA to get records related to the consultation process, the agencies withheld the draft opinions. After years of litigation, the U.S. Court of Appeals for the Ninth Circuit in 2018 ordered the government to turn over the records.

The Trump administration in October asked the Supreme Court to step in, arguing that the circuit court ignored FOIA Exemption 5, which protects records from an agency’s “deliberative process.” The Sierra Club countered that the documents were labeled drafts but functioned as final opinions.

While this article doesn’t talk about it, the major federal environmental statutes have requirements to use the “best science,” including the Endangered Species Act involved in this case, but also NEPA and the Forest Service Planning Regulations.  Agencies must prove they have done this by “showing their work.”  This includes disclosing contrary science, and providing the rationale for not relying on it.  It seems to me that any changes in the use of science or how it is viewed would be relevant to this requirement and must be explained to the public.  This is probably why there are comments like these on this case:

Margaret Townsend, a Center for Biological Diversity attorney who focuses on government transparency, said her group will be watching the case closely, as the Supreme Court “has a crucial opportunity to tell agencies they can’t hide science at the expense of our endangered animals and plants.”

Brett Hartl, government affairs director for the center, noted that expanded use of FOIA’s “deliberative process” exemption could allow the EPA and others to block disclosure of critical documents that explain agency decisions.

Lewis and Clark Law School professor Daniel Rohlf said a win for the government at the Supreme Court could help agency leaders overrule their own scientists and other experts.

Here’s what the government would like us to believe (according to the apparently pro-government-secrecy advocates the Pacific Legal Foundation):

“And here the agencies decided that the draft should not be finalized because further consultation was necessary, and then actually engaged in more consultation before issuing a final opinion.”

Consultation with whom, I wonder.  Since the Supreme Court agreed to review the case, the assumption is they would like to reverse in favor of the government.  The Sierra Club may decide to fold, also because FOIA has been amended since this case was filed to restrict the use of this FOIA exemption and promote greater disclosure.