NEPA

Senator Tester Spreads Misinformation About Forest Service Categorical Exclusions at Senate Hearing

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“using a categorical exclusion that was meant for cutting trees not for recreational purposes” Sen. Tester

I was intrigued by the Senate hearing where Senator Tester of Montana grills Chief Randy Moore here. Yay! someone talking about FS categorical exclusions! On Youtube!.

We already have discussed the Holland Lake Project (which Senator Tester didn’t mention by name) here and here.

Senator Tester seemed to think that the fuels CE he had voted on had been used for recreation. Around 1 minute.

Hopefully his staff knew more but.. why would they allow him to say something that’s obviously out to lunch?

Tester states that a corporation will come in (to this recreation site) with “potentially devastating impacts”, and “no public input.”

As Randy answers, CEs in the FS don’t mean “no public input”- there is required scoping. Yay, Randy! Scoping is public input.

As to “no public comment” here’s the scoping letter:

The full public scoping package can be found on the Holland Lake Lodge Expansion project webpage at: https://www.fs.usda.gov/project/?project=61746.
The Flathead National Forest will be hosting a public meeting about the Holland Lake Lodge Facility Expansion Project on Thursday September 8th, 2022, from 5:00-7:00 pm MST on the Holland Lake Lodge grounds at 1947 Holland Lake Lodge Rd, Condon, MT 59826. The purpose for this public meeting is to engage in information sharing with the public on project activities and to answer questions.
Comments received in response to this solicitation, including names and addresses of those who comment, will be considered part of the public record and will be available for public review. Electronic comments must be submit- ted through the project webpage at https://www.fs.usda.gov/project/?project=61746. On the right side of the project webpage there is a box “Get Connected” click on the ‘Comment/Object on Project’ link to submit your comment. The sender should receive an automated electronic acknowledgment from the agency as confirmation of receipt. If the sender does not receive an automated acknowledgment for receipt of comments, it is the sender’s responsibility to ensure timely receipt by other means. Acceptable formats for electronic submission are text or
html email, Adobe portable document format (PDF), and formats viewable in Microsoft Office applications (e.g., Word). Please address your written comments to Project Leader Shelli Mavor, Swan Lake Ranger District, 200 Ranger Station Road, MT 59911. The office business hours for those submitting hand-delivered comments are 8:00 a.m. to 4:30 p.m., Monday through Friday, excluding holidays.

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“The CE was meant for cutting trees, not for recreational purposes.” That’s not the CE that was used, so, well, that’s a false statement.

For the curious, it wasn’t a legislated CE. According to this article:

Recreation Site and Administrative Site CEs, 36 CFR §§ 220.6(e)(21) and (22)

These two new CEs allow for construction, reconstruction, decommissioning, relocation, or disposal of buildings, infrastructure, or other improvements at recreation or administrative sites. The Forest Service foresees using these CEs to help restore its aging infrastructure at various administrative and recreational facilities, as well as allowing it to establish agency procedures for facility master planning.

For me, as we’ve discussed before, if a category fits, use it unless there are extraordinary circumstances as defined in the regs. And Jon well represented another point of view.

Here is what the Flathead folks said in their scoping letter:

Based on a preliminary assessment, intentions are to categorically exclude the proposed project from documentation in an environmental impact statement or an environmental assessment under 36 CFR 220.6(e)(22): Construction, reconstruction, decommissioning, or disposal of buildings, infrastructure, or improvements at an existing recreation site, including infrastructure or improvements that are adjacent or connected to an existing recreation site and provide access or utilities for that site.

I’ll restate.. “based on a preliminary assessment, intentions are..”. In my experience in other Regions, this would have been met with “don’t use a CE” and “we think it’s overbuilding”,  not the level of outrage that this forest seems to have received.

Tester framed it as making corporations rich.. but on the other hand, no one is required to stay or eat there, so they must be providing a useful service to individuals and families. In fact, Tester started out in his statement with how important the recreation economy is to the State of Montana. Hopefully none of those folks are growing rich :).

The actions of the career feds.. er.. “Gives government a bad name,” according to Senator Tester. Actually, having watched some recent Congressional hearings, I would give Congress an 90/100 for “giving government a bad name”, and the Flathead a 0/100.
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Most irritating to me, Senator Tester even implied that the reason for the use of the CE was to sneak by and cut a deal with corporations.

It’s not really clear what kind of benefits would accrue to the employees of the Forest by “cutting a deal”. In my experience, when deals are cut, it’s at a much higher level than the Forest, even than the Chief.

I did get a laugh out of his next statement -“the government should never be cutting a deal”.

Indeed, folks in the Executive Branch cuts deals for corporations all the time- and indeed “make corporations rich off our public lands.” Here’s an example:

The Biden administration said on Wednesday it would cut in half the amount it charges companies to build wind and solar projects on federal lands, a move designed to encourage development of renewable energy.

The new policy comes after years of lobbying from clean power developers who argued that lease rates and fees for facilities on federal lands were too high to draw investment

It’s not clear from the newspaper articles if there was public comment on this change.
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Anyway, I can hear it now, why pick on this guy? They all bloviate- it’s in the job description. Yes, I agree, but I’d like them all to be less casual with facts. And not punch down. Yes, it’s too much to ask, but I can still ask. Accountability- not just for agencies anymore.

DxP

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Indianapolis Indiana Dead Tree Removal 317-783-2518

One of the threads of this discussion went off on a topic of how much discretion loggers should have in deciding what trees to cut down.  “Tricky Dick” offered that, “The USFS in its office attired lazyness doesn’t want to have to cruise the forest landscape piece by piece and thru honest Forestry discretion , uninhibited by profit motives, mark the bigger trees as ” leave or cut…”  Larry replied with regard to marked trees, but what if they are not marked?  I think there’s a name for that – “designation by prescription,” or DxP.  Here is how the Colville National Forest explains it (2020):

The Colville National Forest in Washington began using Designation by Prescription (DxP) in 2009 in order to become more efficient in timber sale preparation. Marking individual trees with paint in a sale area can be a time-consuming and costly process. DxP saves time preparing a timber sale and money spent on paint by allowing the logger to select which trees to harvest based on a timber stand prescription, which defines the desired condition after harvest.

With DxP, the operator may need to know tree species, how to measure tree diameters, forest health indicators, or how to achieve desired stocking level. This has the potential to initially slow operations. However, the flexibility that DxP provides (the contractor needs only to meet the prescription and that outcome can be accomplished in different ways) can create efficiencies for both the USDA Forest Service and the contractor

Is Tricky right?  But wouldn’t “allowing a logger to select which trees to harvest” allow them to do whatever they want within the broad confines of a “desired condition” in the “timber stand prescription?”  I have lots of questions about this.  How common is this?  Is the “timber stand prescription” part of the NEPA disclosure process in a way that all possible effects of the loggers’ decisions are accounted for?  If they only have to achieve the desired condition, could they do that in a way that is inconsistent with standards or guidelines in a forest plan?  Those aren’t included in the Colville’s “need to know” list above.

Asking for a friend.  Thanks.

Let’s Share CEQ Stories: and Why EPA May Not Give Retardant Regs the Attention They Deserve

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Thanks to the many folks who have contacted me with their own concerns and observations about how the CEQ-Agency decision process is working. I had no idea that the concern was as widespread- and in areas I didn’t expect. So thank you all for reaching out!

My own CEQ Stories: Please Add Yours..

For me, I had expectations for the role of CEQ based on my own experiences. Absolutely each Admin can run things the way they want. Still, as it turns out, there is a vast body of people who work in and with government- what we might call Faithful Denizens of the Swamp- with many familial, friend and other connections who communicate with each other across party and other lines. I too was a Swamp Denizen and proud of the work I did as a career civil servant- trying to keep politicals from doing questionable things- and finding good ideas and floating them when different parties come into power. I I put the word faithful because most of us are faithful to values beyond a political party.. like good government, whatever that it. IMHO good government must be measured by trust, accountability, and the real-world effects on citizens (not hot air). As we used to say, the occupational disorder of DC is believing your own hype.

I have had three experiences of working directly with CEQ.
One was when I worked with Dan Magraw of EPA (assigned to CEQ) on regulation of genetically engineered organisms during the Clinton Administration. I was working at the Office of Science and Technology and the project was joint with CEQ. Dan and I were co-leads.
The second was working on the Limited Timber Harvest Categorical Exclusion during the Bush Administration (as the FS NEPA person). The third was as the FS NEPA person on the interagency NEPA group, but I’ve told that story before.

I was chuckling thinking that when I worked at OSTP (the White House Office of Science and Technology Policy, like CEQ, part of the White House, but not what you think of exactly as “the White House”) the 2001 Planning Rule came through to be cleared. I raised the issue with OMB as part of the clearance process that the costs might be.. well.. underestimated. I got one of the OMB staffers interested in that, until that was shut down by our then-undersecretary (if he needed additional clout to do this, I have no idea). The story goes the Undersec complained to my FS boss at the time (Bill Sommers) who told him “what did you expect when you sent her over there?”

When we finished our interagency report on GE organism regulation, our bosses presented it to George Frampton, the CEQ Chair, with us in the room. He said basically.. no. So I think the higher ups and others had a discussion with him prior to the meeting, and that was definitely a joint Administration decision. Somehow biotech companies had the ear of the powers that were.

When I worked on Limited Timber Harvest, CEQ folks raised lots of questions. Patiently Pam Gardiner and I would answer questions,  and this back and forth went on for months. At one point Pam and I went to a meeting with Mark Rey, our Undersecretary at the time, and as I recall, Jim Connaughton, the CEQ chair dropped in to say to the CEQ staff person “enough is enough” and that was that. Again, I don’t know if Mark, the Sec, Jim, and others had had some prior convo.

I know other readers have had their own experiences. Again, any Admin can organize the way it wants to. However, if one chooses to operate differently, it will raise eyebrows among those who are used to working within the system. And my experiences are old now, but my still-friends in the Faithful Denizens of the Swamp who have emailed and called me are concerned about this new role. At the same time, a big change since the old days  is where exactly climate concerns are interspersed in all this -who hold what “climate” cards, where and how is the climate game played exactly?

Why Not Give More Work to EPA?

Yes, let’s give those poor feds another task.. rulemaking for fire retardant to the EPA! Why not? This is not negative about EPA, but they seem to already have too much to do.

First,  they’re 20K people down and say that they can’t do what’s in the IRA and BIL … see Grist story here..

Today, the workforce is around the size that it was under President Ronald Reagan in the 1980s. The AFGE has said that the agency will need 20,000 full-time staff, a 40 percent increase, to carry out the programs it has been tasked with.

Nicole Cantello, who practiced as an EPA attorney for three decades before joining AFGE Council 238 full time in 2020, told Grist that the issue is not only with hiring, but also with retention. A dearth of promotional opportunities and limited work-from-home options have caused retirement-age employees to depart early. Roughly 20 percent of the EPA’s staff have been at the agency for 30 years or more and could elect to retire soon.

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For members of AFGE, the staffing shortages are both personal and existential. A failure to address them could have repercussions for generations to come.

“Our mission has grown enormously, and climate challenges continue to escalate, but EPA’s inability to hire and retain staff has created a crisis,” said AFGE Council 238 President Marie Powell Owens in a statement. “We need to raise pay and restore career ladders now. The future of the EPA and our planet are at stake.”

The 2023 TSW Hyperbole Award may well go to Ms. Owens.

It’s also just too… hard… to keep track of all that money. Check out this non-paywalled story from Bloomberg Law. Et tu, Congresswoman DeGette?

The EPA’s inspector general raised concerns to House lawmakers Wednesday that his office can’t adequately track the tens of billions of dollars flowing into the agency from the infrastructure and climate laws under its current funding.

The comments from Sean O’Donnell and two other agency inspectors general come as some congressional Republicans’ concerns that the Biden administration is frittering away taxpayer dollars and increasing the national debt.

“Over the past two years, your federal government has been spending taxpayers’ dollars like it was Monopoly money,” said Rep. Morgan Griffith (R-Va.), chair of the House Energy and Commerce Oversight and Investigations Subcommittee.

But Rep. Kathy Castor (D-Fla.), the panel’s top Democrat, countered that funding from the infrastructure and climate bills is crucial to protect the environment and grow the economy. Rep. Diana DeGette (D-Colo.) said that, despite the financial risks of pushing billions of dollars out the door quickly, the risk of doing nothing is unacceptable.

Broadly, O’Donnell and the other inspectors general pointed to shortcomings in their offices’ ability to oversee government spending. O’Donnell said he wasn’t asking Congress for new money, but “to actually use the money that’s already been given to pay for that independent audit.”

It’s kind of sad to me, as a former Faithful Swamp Denizen,when oversight is seen (by some partisans) to be a partisan issue. Is the future of the planet at stake if billions don’t go out the door fast enough? I can sympathize with those who might wonder (given the non-ground-truthed maps) whether there might be some kind of well- directed- funding in all this? My view.. if people are not trusting, don’t call them names (tinfoil hatted and all that).. become more trustworthy.

EPA EJ Office has cash, staff but not boss.. (E&E News, 3/27/23)

And finally, GAO points out that EPA has not been playing well with land management agencies as reported here earlier.

What could possibly go wrong assigning a new retardant rule to EPA?

Is Permitting Reform Paternalistic? And- Let’s Discuss: Manchin’s Permitting Reform Bill Specifically

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This proposed bill language of the current bill would affect the FS and BLM with regard to certain projects (not of the veg management persuasion). The link takes you to the full bill, the the section by section, and a summary of the changes.

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Sidenote: The permitting reform discourse, as opposed to the permitting reform bill.  As Marcela Mulholland of Data for Progress pointed out at the Breakthrough Institute conference that I posted about here,  the (at least “progressive”) discourse around permitting reform is not very productive.  It’s like the concept itself is wrong (everything is currently perfect), which seems kind of irrational.  What human, let alone government, activity, can’t be improved?   Why is the concept, as opposed to the reality, such a flashpoint? A person, apparently on the New York State Climate Action Council, and I had a discussion on Twitter that reflects this.. I actually thought it was kind of funny.

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Oh, and I thought this op-ed on the Hill by Catherine Wolfram “Progressives should have supported Manchin’s permitting reforms: Here’s why” had some good points.

Indeed, the arguments that the progressives make against carbon pricing are exactly why they should have supported Manchin’s permitting reforms. Blocking fossil fuel projects makes it more costly to deliver energy with existing fossil fuels. In effect, it creates a kind of carbon price, just one that’s haphazardly applied, usually extremely high, and where the revenues accrue to fossil fuel producers instead of the government. At the end of the day, low-income households’ energy bills go up.

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But let’s move on to what’s specifically in the bill.

Projects are defined as “those projects for the construction of infrastructure to develop, produce, generate, store, transport, or distribute energy; to capture, remove, transport, or store carbon dioxide; or to mine, extract, beneficiate, or
process minerals which also require the preparation of an environmental document under the NEPA and an agency authorization, such as a permit, license or other approval.

It seems to me as if it’s mostly speeding up things (documents and disagreements and litigation) that can otherwise languish (and don’t we know it…). That’s what it says in the summary.

WHAT THE BILL DOES: Accelerate, not bypass. The bill will accelerate permitting of all types of American energy and mineral infrastructure needed to achieve energy security and climate objectives, without bypassing environmental laws or community input.

Here was the one I thought will be interesting to observe (if this passes):

Sec. xx15. Litigation Transparency
Topline Summary:
• Requires public reporting and a public comment opportunity on consent decrees and settlement agreements seeking to compel agency action affecting energy and natural resources projects.

Detailed Summary:
• Subsection (a) defines civil actions, consent decrees, and settlement agreements covered under this section.
• Subsection (b) requires that agencies publish online the notice of intent to sue and the complaint in a covered civil action not later than 15 days after receiving service. The subsection also requires agencies seeking to enter into a covered consent decree or settlement to publish online the proposed consent decree or settlement and provide an opportunity for public comment not later than 30 days before filing the consent decree or settlement with a court.
• Subsection (c) requires an agency to consider public comments received on a proposed consent decree or settlement agreement under subsection (b) and authorizes agencies to withdraw or withhold consent if the comments disclose facts or considerations that indicate that the agency’s consent is inappropriate, improper, inadequate, or inconsistent with any provision of law.

What do you all think about this, and about other parts of the bill?

Brian Potter’s “How NEPA Works”: A View of NEPA From a Very Studious Newbie

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It’s kind of fun to read when new folks try to describe NEPA world. I really like how Noah Smith rounded up different folks’ thoughts. 

To my mind, Smith did some pretty amazing round up and interpretation work. For this discussion, though, I’d like to start on the first article, by Brian Potter on Substack called “How NEPA Works.” Brian Potter seems to be a policy wonk type at a think tank who has taken an interest in this topic.

So many interesting things about this article. Lots of references to the work of NEPA for the 21st Century and various Mortimer and Stern papers including their “exploring across agencies” paper from 2009.

The paper has lots of comparisons across agencies. Some unfortunately do not separate the FS out from USDA (nor BLM from DOI) so we can’t really compare them.

So many possible discussion topics, but this one could be particularly of interest- it’s a section called NEPA, the Courts and Uncertainty, and I think Potter does a better job than I ever have of explaining why NEPA litigation can be seen as a problem to those working on analyses.

An example of this is the threat of lawsuits incentivizing the inclusion of more and more research in environmental analyses, regardless of its merits:

An excellent illustration of excessive analysis due to management uncertainty is the Beschta Report. Commissioned by the Pacific Rivers Council in 1995, eight scientists drafted a paper, “Wildfire and Salvage Logging,” commonly known as the Beschta Report.

The paper has never been published in any scientific or professional journal, nor has it ever been subject to any formal peer review. In 1995, Forest Service scientists and managers expressed strong reservations about the report, which contains many unsubstantiated statements and assumptions. Nevertheless, the courts have sometimes shown support.

Groups have challenged postfire recovery projects on the grounds that the Forest Service has failed to consider the Beschta Report. In four cases, the courts have ruled that Forest Service decisions violated NEPA because the associated records did not adequately document the agency’s consideration of the Beschta Report. In two other cases, courts have ruled in favor of the Forest Service on this issue.

In view of the court record, forest planners might feel compelled to thoroughly document their consideration of the Beschta Report’s principles and recommendations, even though the underlying land management issues are already addressed in the record. That includes documenting why some elements of the Beschta Report are not relevant to the specific proposed project.

The court record has inspired some groups to demand that the Forest Service consider other papers and articles supposedly relevant to proposed actions. Sometimes the proffered list of references exceeds 100 entries. To minimize the risk of adverse judicial opinions, land managers might feel constrained to fully document within the body of the NEPA document their detailed consideration of each and every paper or article.

Potter considers that even changing NEPA regulations can increase risk and uncertainty.

This mechanism seems to be behind the length of NEPA documents. The 1978 CEQ regulations state that an EA should generally be less than 75 pages, and an EIS should generally be less than 150 pages. But the uncertainty of what’s needed to comply with NEPA, and the natural risk aversion of government agencies, pushes these documents to be longer and longer.

In practice, figuring out what “bulletproof” entails is difficult. Stern 2014 gives an example of the Forest Service trying to figure out what sort of watershed analysis model is most likely to hold up in court:

…In one case, for example, an IDTL asked the Regional Office whether they could use a particular watershed model that had been used elsewhere. Personnel in the Regional Office instructed the team not to use the model because it would represent a departure from the traditional approach used on the specific forest and could expose the process to additional external scrutiny by setting a new precedent. The IDTL described the response from the Regional Office after the ID team submitted their preliminary report, which did not include the model.

“It was like [from the Region], ‘Hey, you need to run some models because there was this court decision, and it was up-held because they had model information, so you got to run the model for this.’ [laughing] It was kind of like, ‘okay that’s a 180 from what you told us initially.’ And then after the model was run, and we sent the document out, [the Region came back and said], ‘Oh jeez, maybe you shouldn’t have run the model because… the court case was reversed.’ [laughing]”

The uncertainty that the NEPA process creates – how thorough of an analysis will be required, how long it will take to perform, what sorts of mitigations will be required, what sorts of follow-up analysis will be required, will the analysis get litigated – makes it difficult to plan projects with substantial NEPA requirements. A mining executive noted that the NEPA process has resulted in the US having unusually burdensome permitting requirements by world standards:

In considering a new project the first thing I am asked is how long will it take and what will it cost to get it permitted. I can answer this question with a high degree of confidence in most jurisdictions around the world, with the exception of the United States. When I first began working with NEPA in the mid 1980s the time and cost to prepare an EIS for a mining project took about 18 months and cost about $250,000-$300,000. Today [2005] an EIS for a mining project may take 5-8 years and cost $7-8 million or more, before factoring in expected appeals and litigation of the ultimate decision. Thus, it is very difficult to make business decisions in the US under the current permitting environment on federal lands.

Reitze 2012 notes that NEPA is used to increase the costs and unpredictability of fossil fuel development, in an attempt to make renewable energy more attractive by comparison. And Glen 2022 notes that uncertainty around NEPA litigation also makes planning renewable energy projects (in this case, wind power) more difficult and risky. A transmission line executive noted in 2009 that the uncertainty and unclear case law around considering climate change impacts had created a “nightmare” for him.

This uncertainty also makes changing NEPA somewhat risky. Experts have noted, for instance, that rules to accelerate NEPA processes or impose maximum timelines might result in more of them being challenged in court (by failing to take the proper “hard look”). One consultant for energy projects suggested that the Trump-era NEPA changes (which have since been rolled back) were likely to increase project uncertainty and delay of energy projects in the short term, as the changes would result in increased litigation.

Potter goes on to talk about that it’s not entirely NEPA and NEPA is an umbrella.. and a variety of other topics we are familiar with. Are you surprised by any of his paper?

A Spin Too Far: Garrity’s Op-ed on BLM’s Clark Fork Face Project

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Gosh, for whatever reason it seems to be BLM week here at The Smokey Wire! Thanks to Nick Smith for this.

Matt Garrity had an op-ed in the Montana Standard about the project.

It’s incredibly disappointing, but the Bureau of Land Management is no better under Tracy Stone-Manning’s leadership than under Trump. While the examples pile up nationally, here in Stone-Manning’s home state the agency is attempting to dodge required public review and comment for a massive 16,066-acre clearcutting and burning project that will bulldoze 22 miles of new roads in the Garnet Mountains in grizzly, bull trout, and lynx critical habitat.

What is it about BLM that seems to invoke hyperbole? “No better than under Trump” today, or yesterday “the President’s clean energy agenda can’t happen unless one person is confirmed”?

Somehow I doubt whether Director Stone-Manning has been involved in this project. Perhaps there’s a Montana subtext I don’t understand, but saying bad things about people publicly on one hand, while you ask them to do something, on the other hand, has never worked for me.

But let’s look at Garrity’s specific claims about this project. TSW readers have seen more than our share of fuel treatment and other projects.  Certainly  people can, and do, disagree about what to do where and sometimes why.  But it might be good to 1) agree on what’s in the EA and 2) assume that the BLM employees have good intentions.

Is it a 16,006 acre “clearcutting and burning project”? Here’s what the draft EA says..

Is there burning? Yes.  Is there thinning? Yes. Are there clearcuts?  Well, no, depending on your definition, of course.  Like the Pisgah-Nantahala, for structural and species diversity reasons (also climate resilience) to get new trees established, some openings are necessary. Is that a “clearcut”? There’s actually a photo in the EA of one of these..(there are many great photos in the EA, at the end, of all kinds of proposed treatments and conditions).  It seems to me that defining a clearcut might be handy.. to me there are size of opening and number of living trees left are both important.

Will it “bulldoze” 22 miles of new roads?

Yes, 16 miles of new permanent roads (not open to the public) and 6 miles of temporary roads to be obliterated within three years of treatment.

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The context for this project is unusual (at least to non-Montanans).  The BLM is part of a larger landscape that is mostly non-fed. They only have 10% of the project area.

 

Also, of the 23,666 acres of BLM in the planning area, 19% (4,519 acres) have no treatment proposed. Those lands are largely unroaded and were excluded from proposed treatment due to their value as secure habitat.

Apparently, industrial forest ownership was sold to future homeowners effectively making “new WUI”.  There are  > 2600 structures in the planning area, according to Montana State Library GIS data from 2020.

What was once a large industrial forest ownership, is now overwhelmingly (48% of the planning area) small, nonindustrial private landowners who are constructing homes and buildings in the forest (see table 1). This subdivision and rural development have effectively transitioned the entire planning area to Wildland–Urban Interface (WUI) when measured as a proximity to structures (See Appendix D, map 9.7). Because of this shift in ownership and use of the private land, the BLM’s forested parcels represent an increased risk from wildfire to the private structures and improvements and also to the safety of the residents and firefighters. It is these twin realities: the deviation from NRV and the expansion of the WUI that necessitate this project.


This gives you some idea of how these varying ownerships look from the air. You can click on this photo to enlarge.
Here’s the purpose and need:

Specifically, treatments are needed to:
1. Protect life, property and firefighter safety in and near the wildland–urban interface and promote resilience to wildfire by reducing forest fuel loading and breaking up homogeneous stand conditions.
2. Restore healthy ecological conditions by increasing the acreage of forest communities that are moving towards the midpoint of NRV.
3. Maintain and enhance native and sensitive plant communities; this includes maintaining and enhancing limber pine (Pinus flexilis) populations where present.
4. Improve ecological health by increasing resistance and resilience to forest insect and disease outbreaks.
5. Provide local and regional economic benefits through harvest of forest products and capturing the value of dead and dying timber while it remains salvageable

As I’ve said, dead trees store- but do not sequester- carbon, so insect and disease problems have carbon implications, as well as potential fuel hazards..

And this area has been designated high priority by the State (all lands, all hands and all that):

There are 142 pages in this draft EA and lots of information.

According to Garrity:

Carey should have ordered a full Environmental Impact Statement instead of trying to sneak the project past the public with no scoping, the lower-level analysis of an Environmental Assessment, and an illegally-shortened public review and comment period.

But there was scoping and public involvement, as detailed in this document. I suppose we could disagree on the definition of scoping as well, but it sure looks scoped to me. See for yourself. According to the folks involved:

Since we had already had two public meetings and scoping which did not indicate a overwhelming amount of public interest, a two week public comment period was identified. Once it became clear folks wanted a longer comment period, we made that change. This change was initiated prior to the opinion piece in the Standard.

The fact is that there was scoping, and the comment period is now 45 days.

Despite the legal requirement that the agency carefully consider public comments, the whistleblower also said there is no intention of taking input from the public or modifying the project prior to issuing a final decision.

Truth is the friend of time and all that. We’ll circle back and look at the response to comments in the final EA.

The way I see it is that the BLM, like the FS, is in a “darned if you do, darned if you don’t” position here. They would like to do WUI fuel treatment projects as residents, fire departments and others are legitimately concerned. They will be blamed if they don’t get them done. They received all kinds of $ from Congress to do them. But if they don’t do an EIS, then they will be criticized by folks like Garrity for not involving the public enough or writing a 120 page document instead of five alternatives and a 600 page document, or whatever. At the end of the day, it seems to me that it’s about finding zones of agreement among people – not more pages of analysis.

And according to Monday’s table, Montana BLM staffing is down by 23% to do all this.  So disagree about the project all you want, but give these gals and guys a break!

Shout Out to BLM NEPA Folks!

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I’d like to give a special shout-out to some BLM employees today, who traditionally have labored in relative obscurity.

There have been quite a few news stories saying they “did not look at” this or that, based on plaintiffs’ assertions.  Then because it’s in litigation, we never get to hear the BLM side.. unless we dig into some relatively obscure “response to comments” document.  So this post will be successful if the next time you read a news story that says “BLM’s NEPA did not…”, you consider the fact that well.. maybe.. they actually did.

What reminded me of this was today’s story about the results of some (in this case, sue-and-settle) litigation against oil and gas leasing in California. As per this Reuters story..

The 2019 lawsuit was filed in California federal court by the Center for Biological Diversity and the Sierra Club, who were later joined by Monterey and Santa Cruz counties. It claimed the federal plan to move forward with development ignored the potential harm from oil and gas extraction on groundwater, the climate and seismic activity.

And the solution…

A federal plan to lease over 725,000 acres of Central California land for fracking and oil drilling has been blocked after a federal judge approved a settlement brokered between the Biden administration and environmental groups that sued over the plan The U.S. Department of the Interior’s Bureau of Land Management agreed in the deal approved Tuesday to take a fresh look at the environmental impacts of the leasing plan, which was approved by the Trump administration in 2019.

is…more analysis.  From the settlement, it looks like they need to do an SEIS with more alternatives (?).  Which isn’t exactly saying their analysis of the alternatives was inadequate.  But maybe legal folks will understand what this settlement says.

Now if you’ve been following these stories (there are many across the west, and they all say the same thing,  “BLM did not consider…” ), you might wonder “what about those BLM folks.. why can’t they do it right? After all, NEPA is a procedural statute, so conceivably even if the BLM  said “this project will extinguish life on earth as we know it” the project could go ahead.  Well maybe that’s a bit of an overstatement, but you see my point.

My own experience with BLM NEPA folks and solicitors was that they did good work. Take a look at the Central Coast RMP Amendment’s pretty overwhelmingly complete documentation here.

There are 18,229 active oil and gas wells in the 11 counties within the boundaries of the BLM Central Coast Field Office: 110 or roughly 0.6 percent are located on Federal mineral estate. Completion of this proposed RMPA/Final EIS will allow the BLM to resume oil and gas leasing within the planning area, which could result in development of up to 37 new oil and gas wells during the next 20 years, as described in the Reasonably Foreseeable Development scenario.

It also sounds from the news story (plaintiffs’ claims quoted) as if the problem were analyzing impacts.   Without looking at the document, did the BLM actually “ignore” the impacts on groundwater, the climate, and seismic activity?  Even back in my day, the BLM did analyze climate impacts, so I looked into this.

It was easy to find the response to comments for the Sierra Club and CBD on page I410:

Sections 3.6 and 4.6 (Climate Change/Greenhouse Gas Emissions) of the RMPA/EIS provide the regulatory framework, baseline conditions, and provides an assessment of impacts to GHG emissions (a proxy for impacts to climate change) from activities allowed under the RMPA alternatives. The primary GHG impacts that can be reasonably expected to occur are emissions from the combustion of fossil fuels and from releases of CO2 and methane due to oil and gas development and production. Discussions of impacts to other resources affected by climate change appear in the respective sections in Chapter 4 of the Draft RMPA/EIS. As discussed in the assumptions presented in Section 4.6, all activities must comply with applicable laws and regulations and may be subject to review for certain types of GHG emissions by the local air permitting authority. Therefore, utilizing this as a foundation for the analysis presented in Section 4.6, the RMPA/EIS considers current information regarding climate change.

Section 1.2.2 (Planning Approach) of the RMPA/EIS explains that oil and gas leasing and development on Federal mineral estate requires multiple stages of BLM Central Coast Oil and Gas Leasing and Development Appendix I. Comments and Responses to Comments May 2019 I-411 Proposed RMPA/Final EIS environmental analysis and authorization. Environmental review under NEPA is required at each phase. Therefore, future projects would also conduct specific project-level assessments of potential impacts to air, water, induced seismicity and human health; and may conduct Health Impact Assessments. Sections 4.4 (Hazardous Materials and Public Safety), 4.3 (Geology), 4.5 (Air Quality and Atmospheric Conditions), 4.7 (Groundwater Resources), and 4.8 (Surface Water Resources) of the RMPA/EIS provide a detailed analysis of the potential impacts to these resources under the RMPA alternatives.

Regardless of what they analyzed and how,  it sounds as if the BLM folks need to produce more alternatives and reanalyze.  Which can be somewhat demoralizing when you do good work; I’ve been there.   And then you reanalyze, and the court finds something else not quite right in the new analysis.

I’m not sure that that’s the case here, but if you note in the photo, if looks like this EIS is in response to a court order to give more detail on well stimulation techniques, which they did.  And so it goes.

Anyway, here’s a great big shout-out to the BLM folks who do NEPA and analysis work; all of you across the country!  Your work is appreciated..

Let’s Look At: The Environmental Justice for All Act

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Sorry for this long post, but it is a long and  complex bill and I only hit part of it.

There was an interesting article in E&E News about permitting reform.

“I understand, and I’ve tried to give to senators the reassurance that the transmission and grid issues — the promotion of renewable and alternative energies — have to be dealt with, but not like this,” he continued. “Taking a hatchet to [the National Environmental Policy Act] is not the way to go.”

It seems like to Grijalva, any changes to NEPA are off the table.  Which doesn’t seem rational to me (is there a human institution that couldn’t be improved in some way?).. but that’s politics.

The chair feared, he said, a scenario where leadership would offer a “trade” in which advocates would get a vote on the environmental justice bill while also having to swallow the permitting overhaul in the NDAA.

Representatives from several environmental justice groups met with staff for House Speaker Nancy Pelosi (D-Calif.) last week, and many left Capitol Hill with that same sense of foreboding, said one attendee of the meeting granted anonymity to speak candidly.

Grijalva said he has already told leadership the “EJ for All Act” should be brought to the floor under three specific parameters.

One is that only approved changes could be made to the “cumulative impacts” portion of the bill.

That title of the legislation, perhaps the most polarizing even among Democrats, would require permitting decisions under the Clean Water Act and Clean Air Act to account for the cumulative effects of harmful emissions.

So what’s in the EJ for All Act? It seems to me that it was perhaps written to deal with urban kinds of problems. The intentions are great (everyone should have equal access to healthy communities and to decision-making)I, but difficulties may well reside in the details.  I tried to interpret this through a lens of “poor and Tribal communities who do not want renewable energy development” and “poor and Tribal communities who want fuel treatment projects” and couldn’t see if those relate to this.  In the fact sheet, it says about NEPA:

National Environmental Policy Act (NEPA) – Requires federal agencies to provide early and meaningful community involvement opportunities under NEPA when proposing an action affecting an environmental justice community. Ensures robust Tribal representation throughout the NEPA process for an activity that could impact an Indian Tribe, including activities impacting off-reservation lands and sacred sites.

and

Requires consideration of cumulative impacts in permitting decisions under the Clean Water Act and the Clean Air Act and ensures that permits will not be issued if the project cannot demonstrate a reasonable certainty of no harm to human health.

This seems fairly stringent to me.. “no harm” but perhaps things like CWA and CAA do not regulate transmission lines, solar and wind facilities, and nuclear? Seems unlikely, but… Also in our area, renewable energy occurs on private lands so isn’t subject to NEPA.

A fair and just transition to a pollution4 free economy is necessary to ensure that workers 5 and communities in deindustrialized areas have ac6 cess to the resources and benefits of a sustainable
7 future. That transition must also address the eco8 nomic disparities experienced by residents living in 9 areas contaminated by pollution or environmental 10 degradation, including access to jobs, and members
11 of those communities must be fully and meaningfully 12 involved in transition planning processes.
13 (11) It is the responsibility of the Federal Gov14 ernment to seek to achieve environmental justice, 15 health equity, and climate justice for all commu 16 nities.

There’s a definition for low-income communities..

LOW-INCOME COMMUNITY.—The term 13 ‘‘low-income community’’ means any census block 14 group in which 30 percent or more of the population 15 are individuals with an annual household income 16 equal to, or less than, the greater of— 17 (A) an amount equal to 80 percent of the 18 median income of the area in which the house19 hold is located, as reported by the Department 20 of Housing and Urban Development; and
21 (B) 200 percent of the Federal poverty 22 line.

It would be interesting to see a map of these areas, and where they are close to federal lands.

Here’s a policy statement:

Potential environmental and climate threats to environmental justice communities merit a higher level of engagement, review, and consent to ensure that communities are not forced to bear disproportionate environmental and health impacts.

It seems to me that this bill is about “keeping bad things that people do from happening.” Whereas disproportionate climate impacts can be due to lack of infrastructure and resilience in EJ communities.. so pointing those kinds of projects to EJ communities might be equally important.  Certainly Congress could require this from agencies, or maybe it already does?

If some areas are to be deindustrialized, then other areas must become industrialized (where rich white people live?), or perhaps we can just get rid of industry? Most countries have an industrial policy, perhaps ours needs a deindustrial policy? What about keeping the industry production and jobs, and reducing the pollution?

What if an EJ  community supports a project, but it doesn’t pass the new legal bar of “reasonable certainty of no harm to human health?” and the project is litigated on that basis?  What does it mean to have community support? Is that evidenced via elected officials or opinion leaders or ???

In the bill, there’s a mandatory training requirement for every employee of DOE EPA DOI and NOAA, as far as I can tell not USDA. So conceivably DOI firefighters for example, but not USDA?

I’ll defer to the legal experts at TSW, but it seems to me that there are a variety of legal hooks in this bill that are likely to be used by people opposed to all kinds of projects.  And many opportunities for arguing that something is disproportionate.

Here’s what the bill says about NEPA .  It seems like agencies might do the outreach anyway, but it sounds like analysis would be added that focuses on the “ej community”?

(f) National Environmental Policy Act Requirements For Environmental Justice Communities.—When carrying out the requirements of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) for a proposed Federal action that may affect an environmental justice community, a Federal agency shall—

(1) consider all potential direct, indirect, and cumulative impacts caused by the action, alternatives to such action, and mitigation measures on the environmental justice community required by that Act;

(2) require any public comment period carried out during the scoping phase of the environmental review process to be not less than 90 days;

(3) provide early and meaningful community involvement opportunities by—

(A) holding multiple hearings in such community regarding the proposed Federal action in each prominent language within the environmental justice community; and

(B) providing notice of any step or action in the process under that Act that involves public participation to any representative entities or organizations present in the environmental justice community, including—

(i) local religious organizations;

(ii) civic associations and organizations;

(iii) business associations of people of color;

(iv) environmental and environmental justice organizations, including community-based grassroots organizations led by people of color;

(v) homeowners’, tenants’, and neighborhood watch groups;

(vi) local governments and Tribal Governments;

(vii) rural cooperatives;

(viii) business and trade organizations;

(ix) community and social service organizations;

(x) universities, colleges, and vocational schools;

(xi) labor and other worker organizations;

(xii) civil rights organizations;

(xiii) senior citizens’ groups; and

(xiv) public health agencies and clinics; and

(4) provide translations of publicly available documents made available pursuant to that Act in any language spoken by more than 5 percent of the population residing within the environmental justice community.

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Community input on the bill did not seem to involve disadvantaged rural people of whatever color (my bold).

2022 Community Input Tour

The unique community-led process for drafting the Environmental Justice for All Act was founded on the belief that policymaking should be led by the people most affected by the issue.

In early 2022, Chair Grijalva kicked off a nationwide Community Input Tour in environmental justice communities to talk about the bill and gather input about how it can be improved. For more information on each of the stops for the 2022 Community Input Tour, see the links below:

Community Input Tour: New York, March 11-12

Community Input Tour: Detroit, May 6-7

Community Input Tour: New Orleans, June 17-19

Community Input Tour: Southern California, July 8-10 

Community Input Tour: Richmond, Virginia, July 16 

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Also it says you can provide feedback here on the bill, which I think is a great idea.. but I couldn’t figure out how.

Wouldn’t it be nice if bill language had a public comment period where you could go look up what people and groups have to say about it, and then send your own views to your elected Representative? It’s  kind of ironic to me that we probably have more public (open) discussion of 300 acre fuel treatment project than a possibly extremely expensive bill that potentially ties up decarbonization efforts in ways the authors never intended.

 

Permitting Reform and Insights into (Some) Progressive Views

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From Marcela Mulholland’s presentation at the Ecomodernism 2022 conference

Last month, I attended a Breakthrough Institute conference in Middleburg, Virginia. You may have heard of BTI, they promote “ecomodernism.” More on some of their ideas later.

What I like about them is that they are fans of technical solutions to environmental problems- I don’t always agree with them, but they have interesting and unique albeit Coastal, views of the world. Plus, where else can you be at a conference with people from the fusion community, as in energy, not dining.  And they gave me a geographic diversity scholarship to attend, as I am neither from a Coast, nor a member of any elite.

Anyway, permitting reform was on their agenda. “Permitting reform” is a current term used to talk about removing unnecessary obstacles to building needed infrastructure. The difficulty, as we know, is agreeing on what is “unnecessary” and what is “needed.”

It was fascinating to see the perspectives of people way outside our world.  Below is the information about this session and here is a link to the video.

As the nation’s halting attempts to build high-speed rail, nuclear power plants, high-voltage transmission lines, and solar and wind farms reveal, the obstacles to decarbonization stem less from the availability of low-carbon technology than from the capacity for siting, permitting, and building the necessary infrastructure. High-level proposals to address this problem have come from “supply-side progressivism,” “state-capacity libertarianism,” neoliberalism, and beyond. This panel will feature a variety of ideological perspectives on the policy and coalitional imperatives to be sorted out before any such supply-side agenda can be effectively pursued.

Featuring:
Eli Dourado, Senior Research Fellow, Center for Growth and Opportunity, Utah State University

Marcela Mulholland, Political Director, Data for Progress

Jeremiah Johnson, Policy Director, The Neoliberal Project

Jared DeWese, Deputy Director for Communications, Third Way Energy

From the Forest Service historical NEPA perspective, it was fascinating to listen to speakers talk about NEPA. Some of Eli Dourado’s comments (the libertarian), even reminded me of Sally Fairfax’s article in Science in 1978. He suggested , developing more substantive environmental statutes and reducing the emphasis on NEPA.  He also suggested getting rid of NEPA but he is a libertarian..

However, as we know ESA can also be used to slow down or stop projects, so I don’t think it’s that simple.

I thought the most interesting talk was given by Marcela Mulholland, the Political Director of Data for Progress, a progressive polling group.
Her presentation (20:10 ) was fun..
Here she talks some (other) progressives’ views (48:48) “more staffing, no other changes are necessary,” and (51:30) changing agency culture. I think she has a point but that is indeed difficult.

1:04 and on .. there’s a discussion how to get community input without slowing things down too much.

And in the Q&A, there’s even a comment about NEPA being a “decision-making tool”, which may remind FS folks of the Decision Protocol and other efforts. I suggested that policy solutions involve agency NEPA practitioners as sources of information..

As a result, attendees asked for a summary of what we have learned. I think “there’s too much!” say the results of the EADM workshops, and “there’s too little”.. where out there might be a 20 page history of agency efforts, at least from Process Predicament on, what was tried and how it worked.  So I am stuck and would like to respond to his question. Does anyone have any suggestions?

More on the Holland Lake Project, CEs and the Flathead Plan

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Martin Nie helpfully pointed me to the text of his letter on the Holland Lake project. What’s interesting about this, to me, in light of the decision, is how this highlights the role of environmental analysis compared to public engagement.  Some folks seem to like to lump them together (not Martin).. “with a CE the public won’t be involved” but this particular CE had public meetings and obviously a comment period (evidence-  this letter, among others).  And whether the FS uses the CE when this decision comes back around, I would expect them to do the same kind of public involvement.

Here’s  a link to Martin’s letter , and here is a link to the scoping document.  Lots of interesting stuff in there, including upgrading water and sewer, and  clarifies the Forest Plan direction for the area.

Increased use is also occurring at the adjacent USFS East Holland Lake Connector Trailhead. This increase in use is creating a situation in which users park along the Holland Lake Road because there is no longer room in the existing trailhead parking area. Additionally, the existing vault toilet is no longer adequate to handle the amount of use it experiences. This situation may be causing additional resource concerns as users find alternative options*. Improvements at the Holland Lake Lodge and the East Holland Lake Connector Trailhead would offer the opportunity to satisfy some of the increased demand for outdoor recreation on public lands in the Swan and Flathead Valleys (Figure 2 & Figure 3). Holland Lake is identified by the Flathead National Forest Land Management Plan as a Management Area 7 – Focused Recreation (USDA 2018). The improvements proposed at Holland Lake Lodge align with recreation uses permitted in Management Area 7. Focused Recreation Areas typically include public recreation areas at or near a lake, large campground, developed ski area or year-round resort. Recreation in these areas is already occurring and is often enhanced by further development to increase public access and benefit local economies.

*Hmm. I wonder about the exact nature of these “alternative options,”; perhaps not best left to the imagination.

Here’s what Martin said about the Plan:

So much time, energy and resources collectively spent on revising this Plan, one of the first to be revised under the 2012 Forest Planning Regulations-Regulations that require the use of best available scientific information, public participation, and an “all lands” approach to National Forest management. So much work and money spent on the Montana Legacy Project, so carefully done so to protect the ecological and rural community values so cherished in the region. So much effort to protect the ecological integrity and feel of a special place. And yet none of that work seems to have shaped or informed a proposal that would undermine it all.

The agency’s purpose and need for action statement references the revised Forest Plan’s desired conditions for Management Area 7, Focused Recreation. This vague and discretionary plan component calls for providing “sustainable recreational opportunities and settings that respond to increasing recreation demand.” But this provision does not call for generating greater demand for even more intensive recreation nor can it be understood in isolation from other relevant parts of the Revised Plan, including the plan components for the Swan Valley Geographic Area, and requirements under 36 C.F.R. §219.9 “to contribute to the recovery of federally listed threatened and endangered species, conserve proposed and candidate species, and to maintain a viable population of each species of conservation concern.”

The special use permit and proposed expansion of Holland Lake Lodge is clearly and directly related to forthcoming activities and an environmental footprint that will extend far beyond the 15 acre permitted area. The type of intensive year-round recreation associated with the POWDR corporation makes this clear and is entirely inappropriate in an area so ecologically significant. The NEPA case law forbids the segmentation of related actions and requires that the cumulative effects of related actions must be considered, usually in an EIS. The Council on Environmental Quality (CEQ) also states that “federal agencies must be sure the proposed [CE] captures the entire proposed action” and “should not be established or used for a segment or interdependent part of a larger proposed action.”

It seems to me that this argument could be made for any project that has a appropriate CE. Perhaps all fuel treatment projects on the Forest could be characterized as “related actions” despite the existence of legislated and regulatory CEs.  And it can be argued that anything is in some sense a “related action.”

I also question this claim :”The type of intensive year-round recreation associated with the POWDR corporation makes this clear and is entirely inappropriate in an area so ecologically significant.”  With my experience with ski area expansion, every area is “ecologically significant” to someone; and these ski areas have opened to year-round recreation.  To my mind, you’d have to tie a specific time of use to a specific environmental impact.

Since Martin is the Director of the Bolle Center (although he writes this letter in a personal capacity), I guess it was natural to bring up the Bolle Report from 1970 (52 years ago).  For non-Montanans who have dealt with other permitted recreation expansions (in my case, ski areas) it seems a bit of a stretch, but OK.

Here we are, decades after the Bitterroot controversy, only to find local citizens and the public once again treated as antagonists, with a proposal to exclude them from a fully informed, scientifically credible, and participatory NEPA process.

Of course, development at Holland Lake is no  Bitterroot controversy in terms of scope, scale and implications. But both cases signify something far bigger within the agency and Montanans clearly recognize something is once again amiss. Rarely have I been approached by so many citizens about a local project or proposal, all with deep concerns and lots of questions about the proposed expansion and the Forest Service’s misuse of NEPA. (my italics)

If you don’t agree with certain members of the public, are you “treating them as antagonists”? Despite public meetings, comment periods, etc.? And if the decision, as in this case, goes with those members of the public, are you still “treating them as antagonists”?  Is it the process, the feelings of some (which ones?) or the decision itself the location for these antagonistic expressions?

Now is where the letter gets interesting:

To categorically exclude some projects and activities from full environmental review is both reasonable and necessary. Doing so can help the agency focus on proposed actions most likely to actually have significant environmental effects. But the USFS is now using its growing list of “CE” authorities to an alarming degree. Roughly 84 percent of the agency’s NEPA work is now done using CE determinations. The Forest Service seems intent on excluding even more projects and actions from NEPA review in the future, using new exemptions provided in the Bipartisan Infrastructure Law (BIL), among several other new authorities granted by Congress, and more controversially by the agency itself.

But to abuse this tool is to risk the agency’s credibility and social license. The intention to categorically exclude such a significant action sends a message that CEs are being used not as a way to do NEPA more efficiently, or to make better decisions-which is the whole point of NEPA-but rather a way to avoid the use of best available science and informed public participation in public lands management. The backlash is already evident and I’m afraid it will taint future good faith efforts aimed at actually improving the USFS’s implementation of NEPA.

In my old job in NEPA in DC, we’d see real CE abuse.. and this is not it. IMHO.

The Forest Service “seems intent” on following statutes legislated by Congress.. I certainly hope so! And why would the CEs in the BIL be less controversial than those developed by the agency (or Agency)?

I guess I just don’t see the logic path from “many people in the area and elsewhere don’t want more people at this 15 acre (based on Martin’s letter) permitted developed recreation site .” and (implied) the Forest Service “is intent on” “even more projects and actions from NEPA review”.

By the way, I took a brief scan of the Flathead Current and Recent Projects, specifically Under Analysis and Analysis Completed. It looks to me as if all the vegetation management and fuels projects are EISs or EAs. Perhaps the problem with CEs is the FS uses too many of them for common decisions like Ultra-Marathons? Or bike races (if Andy is reading this far).

We’ve also had a good discussion of CEs and their use in the previous post’s comments.

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And for the even more NEPA-nerdy..

As to the percentages of CE’s, it turns out that Martin used what is in this 2020 NEPA regulation :

The Agency devotes considerable financial and personnel resources to NEPA analyses and documentation, completing on average 1,588 categorical exclusion (CE) determinations, 266 environmental assessments (EAs), and 39 environmental impact statements (EISs) annually (based on Fiscal Years 2014-2019).

The  Fleischmann et al. (2020) estimate of CE% was  for 2005-2018 and came up with 82.3 % CEs, and the FS estimate 84%, is from 2014-2019.  We might expect that if the FS’s intention were to use more CEs, and it was busy generating administrative ones and the Congress was busy legislating CEs, since 2015 we would see more of an increase over that time period. The averages actually seem pretty invariant over those time periods.