DOI (Finally!) Issues Report on Oil and Gas Leasing

Really? The day after Thanksgiving? DOI releases long-awaited report on oil and gas leasing.

Here’s a link.

Not being an expert, and being in a hurry to get back to post-Thanksgiving cleanup, here is what I found. I bet some TSW folks already know these issues and can add or correct if I got the terminology wrong, and place these changes in context of “what has been talked about for the last 20 years or so”. The recommendations also seem to track 2009 and 2019 GAO reports.

Here we’re interested in onshore.

Aside: one thing mentioned in the public forum that I hadn’t heard before is that offshore production in the Gulf is lower in methane than other sources.  Which if true, relates to COP26 and pledges to reduce methane. The virtual public forum was held in March of this year and I posted about it here.


BLM should start rulemakings to:

*adjust royalty rates

* Increase minimum prices at lease sale (bonus bids).

* increase rental rates (what companies pay until the lease in in production)

* increase minimum bond amounts

As to planning:

Through the land use planning process, BLM determines what lands may be available for oil and gas leasing, what lease stipulations will be applied to protect other resources and values, and what “conditions of approval” may be necessary on permits to drill for additional protection. The land use planning process requires extensive collaboration with Tribal, State, and local governments and the public regarding how Federal lands will be used and minerals will be extracted at specific locations.
As an overarching policy, BLM should ensure that oil and gas is not prioritized over other land uses, consistent with BLM’s mandate of multiple-use and sustained yield. The BLM should carefully consider what lands make the most sense to lease in terms of expected yields of oil and gas, prospects of earning a fair return for U.S. taxpayers, and conflicts with other uses, such as outdoor recreation and wildlife habitat. The BLM should always ensure it is considering the views of local communities, Tribes, businesses, State and local governments, and other stakeholders.

Low Potential Lands
Common practice in BLM land use planning has been to leave the majority of Federal lands open for leasing and allow industry to drive decisions on what areas will be nominated for oil and gas leasing. Since there is no cost to nominate parcels of land for leasing, there is little disincentive for companies to identify large amounts of acreage regardless of the resource potential of that  land or how seriously the nominator is considering bidding for the nominated parcels. The burden and expense then fall on BLM to process those parcels, triggering the dedication of BLM staff resources to analyze marginal lands that companies may not be interested in bidding on and that may never be leased, much less developed. At the same time, sales of large amounts of low potential land often ignite local community concerns (particularly since low-potential lands are  more likely to be in areas that are not accustomed to local oil and gas development) and result in
protests that are time-consuming and resource-intensive to adjudicate.

The BLM should evaluate operational adjustments to its leasing program that will avoid nomination or leasing of low potential lands and instead focus on areas that have moderate or high potential.

I wonder about this..

The BLM should carefully consider what lands make the most sense to lease in terms of expected yields of oil and gas, prospects of earning a fair return for U.S. taxpayers, and conflicts with other uses, such as outdoor recreation and wildlife habitat.

I don’t know for sure, but I expect they already do that, as they do for any other energy permitting.

I also like this

The burden and expense then fall on BLM to process those parcels, triggering the dedication of BLM staff resources to analyze marginal lands that companies may not be interested in bidding on and that may never be leased, much less developed. At the same time, sales of large amounts of low potential land often ignite local community concerns (particularly since low-potential lands are more likely to be in areas that are not accustomed to local oil and gas development) and result in protests that are time-consuming and resource-intensive to adjudicate.

This seems eminently pragmatic.

Happy Thanksgiving to All!

“Right now we have more wild turkeys in more places in Colorado than ever occurred here historically,” said Ed Gorman, small game manager for the Division of Wildlife.


There are many things to give thanks for this year.. health care professionals, people who work on vaccines, those folks in the energy, fuel and food supply chain that provide us with the food and the visitors gracing our doorsteps tomorrow.  In previous years, we may have more or less taken them all for granted, but not this year.

On a more forest-y note, I am grateful for the Infrastructure Bill and the possibilities for beneficial actions therein. Even though it was last year, (but the funding continues through 2025), I am also grateful for the Great America Outdoors Act. Not only do I appreciate the bucks going towards things I like, but also the fact that useful work can be done in a bipartisan manner through Congress.  There is hope.

Finally, there are so many people at The Smokey Wire I am grateful for!  Contributors, commenters, guest posters, those folks who return my calls and emails when I am looking for more information.  People who share e-reprints of their journal articles, or newspaper articles I can’t access due to paywalls.  Information officers in the Forest Service who have been immensely helpful. Of course, I’m particularly thankful for people who disagree with me and help me learn new things and become clearer on my own thinking.  All the people who provide their own knowledge and experience (and views of Google earth) to share with us.  Many traditions believe that our ancestors are still with us, helping us. And I think that’s true of our vocational ancestors as well as our family ancestors, and so I thank them.

And of course, I feel immense gratitude to the folks at Cloud Nine Web Design, who keep us running.  And folks who donate to TSW, so that Cloud Nine gets paid.  I don’t know where the servers are,  but somewhere is the energy that goes into running them, and the folks who provide that.  And the people who made the devices that we use to access TSW. And, of course, the people at WordPress.  Like so many things in the universe, exactly how it works is a mystery. I don’t need to understand it to be grateful.

And  all those who have contributed in any way to any of these, currently living or not. That’s a ginormous cloud of interconnection (or communion of saints, or cloud of witnesses if you are so inclined).

The thing about gratitude is that it honors that ginormous network we are all a part of, beyond space and time.  Sometimes we work in a piece of the network, a bit like a fishbowl, and think that that is the world.  Enumerating our gratefulness is a chance to step back and call out all those connections.  And thank them.  And,  if we are so metaphysically inclined, to thank the Force/Mother/Father/Gaia that brought us all to be.

I wish everyone a safe, healthy and gratitude-filled Thanksgiving!




Where are Snags are Likely to Fall?

From the latest USFS R&D newsletter — subscribe here.

“Most dead trees fall within 10 years after a wildfire. To keep firefighters and those involved in restoration efforts safe, Forest Service researchers and partners developed a new tool that maps where dead trees are likely to fall.”

A related study, “Spatial and temporal assessment of responder exposure to snag hazards in post-fire environments,” notes that:

“Snag hazard increased significantly immediately post-fire, with severe or extreme hazard conditions accounting for 47%, 83%, and 91% of areas burned at low, moderate and high-severity fire, respectively. Patch-size of severe or extreme hazard positively correlated with fire size, exceeding > 20,000 ha (60% of our largest fire) 10-years post-fire when reburn becomes more likely. After 10 years, snag hazard declined rapidly as snags fell or fragmented, but severe or extreme hazard persisted for 20, 30 and 35 years in portions of the low, moderate and high-severity fire areas.”

FWIW, I recently talked with loggers on a fire salvage timber sale, less that one year post-fire, on private land. They said it’s common to see or hear trees fall spontaneously, even with light winds.

More Info on Infrastructure Bill: Pollack and Fite on the Emergency Action Authority

Previously, we had wondered a bit about the Emergency Action Authority and its implications.  Here is one take from Marten Law’s analysis.

The IIJA establishes a new statutory categorical exclusion (“CE”) from NEPA for fuel breaks.[xvii] A statutory CE altogether exempts projects meeting the statutory CE’s requirements from NEPA’s environmental analysis requirements.[xviii] This new fuel break CE applies to fuel break projects up to 1000 feet wide and encompassing up to 3000 acres. It also applies to lands administered by either the Forest Service or the Bureau of Land Management. As agencies continue to confront increased wildfire risks, this will provide a secure and timely path forward for fuel break projects that are needed to facilitate effective wildland firefighting.[xix]

The Act also establishes new “emergency action” authority to “mitigate the harm to life, property, or important natural or cultural resources on National Forest System land or adjacent land.”[xx] The Secretary of Agriculture can use this emergency authority to address a wide range of needs, including salvage of dead or dying trees, harvest of frost or wind-damaged trees, the commercial and noncommercial sanitation harvest of trees to control insects or disease (including trees already infested with insects or disease), the removal of hazardous trees in close proximity to roads and trails, the removal of hazardous fuels, replanting or reforesting of fire-impacted areas, restoration of water resources or infrastructure, and reconstruction of utility lines and underground cables, over up to 10,000 acres.

The emergency action authority has two major litigation implications. First, it limits the NEPA analysis required for any qualifying project. The Environmental Assessment or Environmental Impact Statement need only consider the alternatives of action or no action rather than a range of alternative actions. That change eliminates a potent argument that challengers use in NEPA cases.[xxi] Second, a court may only enjoin an emergency action project if the plaintiff shows it is “likely to succeed on the merits.” This in effect abrogates the “serious questions” or “sliding scale” standard that the Ninth Circuit applies when analyzing whether to issue an injunction.[xxii] That change would make injunctions significantly less likely for emergency action projects, particularly in western states within the Ninth Circuit. In concert, these two policy changes may streamline projects that previously would have been delayed by litigation.

According to these authors, the new emergency action authority would affect how many alternatives are needed (and possible ensuing litigation about specific ones that weren’t analyzed) (as we had previously discussed), but these authors bring up the 9th Circuit  “serious questions” or “sliding scale” standard.

More Information on Infrastructure Bill: Missoulian Article, Reforestation, FEMA, Transmission LInes

We’ve discussed this bill in these posts. NEPA and permitting. Miscellaneous goodies.  Wildfire risk reduction Legacy roads and trails.

In this Missoulian articleRob Cheney rounded up some interesting people to comment. First, Wes Swaffer of American Forests:

One thing Swaffer was particularly excited about was the unleashing of the Reforestation Trust Fund, which pays for nurturing and planting new trees on national forests. Until now, the fund could only spend $30 million a year. The infrastructure bill allows it to spend $266 million a year on a backlog of almost 4 million acres of U.S. Forest Service lands.
“This is everything from getting seedlings in production to putting cone-collection crews out there,” Swaffer said. “That $30 million cap prevented much increase in activities, even though
there’s significant need from fires and insect infestation and disease. This will create economic opportunities in rural communities. We don’t know who will be doing that labor, but it expands Forest Service capacity.”

Hopefully jobs in reforestation and cone collection will create economic opportunities. As many here remember, last time the FS increased its capacity (70’s and 80’s) the lowest-bidder contracting procedures didn’t always lead to the employment of locals.

Also Joshua Lynsen of Land Trust Alliance:
More FEMA Bucks
A FEMA spokesperson on Friday confirmed the agency was repositioning itself to “focus on system-wide critical lifelines and large projects that protect infrastructure and community
systems.” Along with the new community grant program, it has authorization to spend $800 million on dam safety and removal, $3.5 billion on flood mitigation, $1 billion on cybersecurity grants, and $500 million for the Safeguarding Tomorrow Through Ongoing Risk Mitigation (STORM) Act revolving loan fund.

More Tranmission Lines.
Lynsen added the infrastructure bill has money for new interstate electric transmission projects, “including safeguards to avoid disrupting sensitive environmental and cultural heritage sites. This language could provide important protection for lands in conservation status as our nation shifts to more electrification and away from fossil fuels.”
That could help wind and solar projects get their electricity to larger residential markets.

NFS Litigation Weekly November 19, 2021

The full Forest Service summaries are here:  NFS Litigation Weekly November 19 2021 EMAIL

The abbreviated summaries below include links to court documents.


Defenders of Wildlife v. U.S. Forest Service (D. Colorado) — On November 8, the plaintiff filed a complaint against the revised Rio Grande Forest Plan and revised biological opinion concerning effects on Canada lynx.   (The Forest Service summary incorrectly states that critical habitat is also involved, but there is no lynx critical habitat designated in Colorado.)

San Luis Valley Ecosystem Counsel v. Dallas (D. Colorado) – On November 8, the San Luis Valley Ecosystem Counsel, San Juan Citizens Alliance, the Wilderness Society and WildEarth Guardians, filed a complaint against the revised Rio Grande Forest Plan. The plaintiffs claim the plan violated: (1) NFMA by not contributing to the recovery of the Umcompahgre Fritillary Butterfly or the Canada lynx, and by not providing for sustainable winter recreation opportunities; (2) the Travel Management Rule by including language that allows unregulated over-snow vehicle use on the Forest; and (3) NEPA, including management of two special interest areas.

We’ve recently discussed lynx and these lawsuits here.


Klamath-Siskiyou Wildlands Center v. U.S. Bureau of Land Management (D. Oregon) — On November 11, Klamath-Siskiyou Wildlands Center, Cascadia Wildlands, Oregon Wild, and  Soda Mountain Wilderness Council filed a complaint against the BLM regarding the Lost Antelope Vegetation Management Project in Jackson County, Oregon (Ashland Field Office of the Medford District).  It involves logging in late successional reserves and consistency with the Northwest Forest Plan, effects on spotted owls, and analysis of fuels, fire, hazard, and fire risk.

Alliance for Wild Rockies v. Cooley (D. Mont.) — On November 5, the Alliance for Wild Rockies and Native Ecosystems Council filed a complaint against the U.S. Fish and Wildlife Service regarding reintroduction of grizzly bears into the Bitterroot Ecosystem and failing to take any action since 2001.


For those who remember the “My Ding-a-Ling” song …

A lawsuit from the Center for Biodiversity resulted in the U. S. Fish and Wildlife Service proposing to list the alligator snapping turtle as an endangered species. The turtle has been found in parts of at least 14 states in the midwest and southeast.  From the proposed rule:

Several National Forest lands are within the range of the alligator snapping turtle. Forestry activities on National Forests within the range of the alligator snapping turtle, including timber harvest and activities that may increase sedimentation or erosion when not following best management practices, could have adverse impacts on the species.

GAO Report on BLM Workforce – Separating the Headquarters Move From Other Trends

A GAO report was released Thursday that says..

Most BLM staff GAO spoke with said vacancies in key headquarters positions caused delays in creating or clarifying guidance or policy. Further, some said an increased reliance on details negatively affected their office’s performance—for example, because state office staff detailed to headquarters reduced capacity in state offices. Without complete and reliable data on vacancies and details across the agency, BLM officials cannot make informed decisions about filling vacancies and initiating details to help the agency achieve its mission and goals.

GAO also found that BLM does not have an agency-wide strategic workforce plan that supports its mission and programmatic goals. BLM officials told GAO their mechanism for strategic workforce planning is a 2019 memorandum, but this memorandum generally does not address the two critical needs that define strategic workforce planning: (1) aligning the human capital program with emerging mission goals and (2) developing long-term strategies for acquiring, developing, and retaining staff to achieve programmatic goals. Without a strategic workforce plan that addresses these needs, BLM lacks reasonable assurance the agency will have the workforce necessary to achieve its goals in managing millions of acres of public lands.

I wonder how many agencies have such a plan? in 2010 GAO did a study that recommended this for Interior, EPA and the FS. In 2021 testimony, Chief Christiansen said “We are stewarding the Forest Service through this change with strategic workforce planning and collaboratively managing all operations within our allocated budgets.”


Here’s a  WaPo quote:

“In our interviews with 13 BLM staff members, almost all told us that the loss of experienced staff negatively affected their offices’ ability to conduct its duties,” the report said. “For example, one staff member said that the loss of institutional knowledge about laws and regulations meant that BLM was not able to provide knowledgeable input on proposed rules and legislation.”

I think it’s very interesting that BLM would have so much less capacity – no “knowledgeable input” or had all its “institutional knowledge”  in DC, and none elsewhere.  Maybe the exceedingly knowledgeable folks (about planning, and the legal folks) I’ve run into at BLM have been the exception, rather than the rule.

The WaPo story focuses on Blacks.  But you may notice the increases in representation of Asians, Hispanics, American Indians and Alaska Natives between 2016 and 2021. If you add the numbers, they added 167 more diverse people, and lost 26.

Among a host of troubling diversity data, Grijalva wrote in a letter obtained by The Washington Post, “one of the most alarming statistics is that there are only 312 Black/African American employees nationwide at the agency, less than 3.5 percent of the BLM workforce” of about 9,000 people.

It’s hard for me to imagine that this low number was entirely the fault of an administration with one four-year term.


The upheaval also drained the agency of its most experienced career civil servants. The percentage of BLM staff with at least 25 years of service at Interior declined from 24 percent to 17 percent during the Trump administration.

I don’t know if the BLM is like the FS with large chunks of people hired at one time and then fewer .. this could also influence the percentages.  The whole problem of loss of experience through retirement has been identified as a serious problem by many agencies.  But I don’t think we know how much of the retirements were due to “the upheaval” without asking the retirees themselves.  Most people I know have a complex mix of reasons they choose to retire; and many don’t like R administration policies in general.  Programs like ACES for the Forest Service and NRCS, and Department of the Interior Experienced Services Program are designed to help with those transitions as older folks retire.


Lots of other interesting information in the report to discuss.

The Infrastructure of Infrastructure: Wildfire Commission, Fuelbreak System and Plans for Spending $

Most of the articles I’ve read on the Infrastructure Bill talk about the bucks, and that’s certainly the most important thing. Still, with the Reconciliation Bill potentially adding more bucks into the spending pipeline, it’s also interesting to look at provisions that talk about structures for spending the money, or what we might call the Infrastructure of Infrastructure. What is also of interest is that while we’ve discussed the potential differences between restoration, hazardous fuel treatments, and fuel break projects, Congress is pretty careful in delineating each pot of money.

1. Developing a Fuelbreak system

Section 40803(i) requires a Wildfire Prevention Study of the construction and maintenance of a system of strategically placed fuelbreaks to control wildfires in western States. Upon completion of the study, the Secretary of Agriculture is required to determine whether to initiate a programmatic environmental impact statement to implement the system of strategically placed fuel breaks.

What we might find interesting about this is that it separates out fuelbreaks… the realm of fire suppression practitioners and fire scientists, and gives them their own space and planning without also needing to consider “restoration” NRV and other concepts (which have a separate pot). As to the programmatic EIS; many NEPA practitioners have not found these to be all that helpful. If litigatory groups don’t like the project, they get two bites at the litigatory apple (one programmatic and one project). There’s also the problem of analyzing and getting through a PEIS with accompanying litigation in five years, let alone any subsequent project NEPA. I still think an all-lands approach at perhaps a multiforest scale, and a site-specific EIS (for strategic fuelbreak establishment and maintenance) would be a better and faster way to go.

2. A Joint Plan for spending the money; hopefully before too much is spent.

Section 40803(j) requires USDA and DOI to establish a 5-year monitoring, maintenance and treatment plan that describes the how both will use the funding in subsection (c) to reduce the risk of wildfire and improve the Fire Regime Condition Class of 10,000 acres of Federal, Tribal or rangeland that is at very high risk of wildfire. Not later than 5 years after enactment, USDA and DOI are required to publish a long-term strategy to maintain forest health improvements and wildfire risk and to continue treatments at levels necessary to address the 20M acres needing priority treatment over the 10 year period post publication of the strategy.

I like how both 1 and 2 acknowledge not only what it takes to treat, but also to maintain.

5) the Wildfire Commission (section 70201)

ESTABLISHMENT.—Not later than 30 days after the date of enactment of this Act, the Secretaries shall jointly establish a commission to study and make recommendations to improve Federal
policies relating to—
(1) the prevention, mitigation, suppression, and management of wildland fires in the United States; and
(2) the rehabilitation of land in the United States devastated by wildland fires.

DATE.—The appointments of the members of the Commission shall be made not later than 60 days after the date of enactment of this Act.

The composition is fairly complex but appears to be about 11 feds and 18 others. The two secretaries are joint co-chairpersons. Ideally it will be a good way to highlight problems and improve, whilst avoiding partisanizing the issues-  and yet having enough political oomph to get things done. Below is their list of things to do..

(1) IN GENERAL.—Not later than 1 year after the date of the first meeting of the Commission, the Commission shall submit to the appropriate committees of Congress a report
describing recommendations to prevent, mitigate, suppress, and manage wildland fires, including—
(A) policy recommendations, including recommendations—
(i) to maximize the protection of human life, community water supplies, homes, and other essential structures, which may include recommendations to expand the use of initial attack strategies;
(ii) to facilitate efficient short- and long-term forest management in residential and nonresidential at-risk areas, which may include a review of community wildfire protection plans;
(iii) to manage the wildland-urban interface;
(iv) to manage utility corridors;
(v) to rehabilitate land devastated by wildland fire;
(vi) to improve the capacity of the Secretary of Agriculture and the Secretary of the Interior to conduct hazardous fuels reduction projects;
(B) policy recommendations described in subparagraph
(A) with respect to any recommendations for—
(i) categorical exclusions from the requirement to prepare an environmental impact statement or analysis under the National Environmental Policy Act of 1969
(42 U.S.C. 4321 et seq.); or
(ii) additional staffing or resources that may be necessary to more expeditiously prepare an environmental impact statement or analysis under that Act;
(C) policy recommendations for modernizing and expanding the use of technology, including satellite technology, remote sensing, unmanned aircraft systems, and
any other type of emerging technology, to prevent, mitigate, suppress, and manage wildland fires, including any recommendations
with respect to—
(i) the implementation of section 1114 of the John D. Dingell, Jr. Conservation, Management, and Recreation Act (43 U.S.C. 1748b–1); or
(ii) improving early wildland fire detection; (D) an assessment of Federal spending on wildland fire-related disaster management, including—
(i) a description and assessment of Federal grant programs for States and units of local government for pre- and post-wildland fire disaster mitigation and
recovery, including—
(I) the amount of funding provided under each program;
(II) the effectiveness of each program with respect to long-term forest management and maintenance; and
(III) recommendations to improve the effectiveness of each program, including with respect to the conditions on the use of funds received under the program; and
H. R. 3684—827
(bb) the extent to which additional funds are necessary for the program;
(ii) an evaluation, including recommendations to improve the effectiveness in mitigating wildland fires, which may include authorizing prescribed fires, of—
(I) the Building Resilient Infrastructure and Communities program under section 203 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5133);
(II) the Pre-Disaster Mitigation program under that section (42 U.S.C. 5133);
(III) the Hazard Mitigation Grant Program under section 404 of that Act (42 U.S.C. 5170c);
(IV) Hazard Mitigation Grant Program postfire assistance under sections 404 and 420 of that Act (42 U.S.C. 5170c, 5187); and
(V) such other programs as the Commission determines to be appropriate;
(iii) an assessment of the definition of ‘‘small impoverished community’’ under section 203(a) of the Robert T. Stafford Disaster Relief and Emergency
Assistance Act (42 U.S.C. 5133(a)), specifically—
(I) the exclusion of the percentage of land owned by an entity other than a State or unit of local government; and
(II) any related economic impact of that exclusion;
(iv) recommendations for Federal budgeting for wildland fires and post-wildfire recovery;
(E) any recommendations for matters under subparagraph
(A), (B), (C), or (D) specific to—
(i) forest type, vegetation type, or forest and vegetation
type; or
(ii) State land, Tribal land, or private land;
(F)(i) a review of the national strategy described in the report entitled ‘‘The National Strategy: The Final Phase in the Development of the National Cohesive Wildland
Fire Management Strategy’’ and dated April 2014; and
(ii) any recommendations for changes to that national strategy to improve its effectiveness; and
(G)(i) an evaluation of coordination of response to, and suppression of, wildfires occurring on Federal, Tribal, State, and local land among Federal, Tribal, State, and local
agencies with jurisdiction over that land; and
(ii) any recommendations to improve the coordination described in clause (i).

Permitting, NEPA and Litigation Tweaks in the Infrastructure Bill

I didn’t see any others in the bill other than the four below that relate to forest and federal lands activities. However, that’s not to say that this list is complete.


Sec 40806 CE for Fuel Breaks

Establishes a Categorical Exclusion for fuel breaks up to 1,000 feet in width, not more than 3,000 acres of treatments and located primarily in — the wildland-urban interface or a public drinking water source area; if located outside the wildland-urban interface or a public drinking water source area, an area within Condition Class 2 or 3 in Fire Regime Group I, II, or III that contains very high wildfire hazard potential; or an insect or disease area designated by the Secretary concerned as of the date of enactment of this Act.

As we’ve discussed, as a veteran of developing administrative Categorical Exclusions (and seeing them lost in court cases for reasons that seemed a bit random to me), I’m a fan of legislated ones. I didn’t find the definition of “public drinking water source area” in the bill, but perhaps it’s an EPA term?

Sec  40807 Emergency Actions

Establishes  a new statutory tool (separate from and in addition to the agency’s administrative emergency situation determination process) that authorizes the Secretary to determine that an emergency situation exists on National Forest System lands and allows treatment to be carried out pursuant to the Secretary’s emergency situation determination.  If the Secretary determines that an authorized emergency action requires an environmental assessment or an environmental impact statement the Secretary shall study, develop, and describe only—(A) the proposed agency action; and (B) the alternative of no action.  Requires the opportunity for public comment during the preparation of both environmental assessments and environmental impact statements for authorized emergency actions. Actions under this section are not subject to the objection process and a court shall not enjoin an authorized emergency action under this section if the court determines that the plaintiff is unable to demonstrate that the claim of the plaintiff is likely to succeed on the merits.

I haven’t really understood the ins and outs of ESD’s in the first place, so I don’t know how this “new statutory tool” would relate, perhaps someone else can explain?  It seems like it would streamline any required EA or EIS by requiring only one alternative and no objections.   I also don’t know about the test for enjoining and how different that is from current practice.

Here are some more infrastructure-y tweaks:

Transportation Projects.  Sec 11311. Efficient Implementation of NEPA for Federal Land Management Projects.

Allows Federal land management agencies to adopt environmental review documents prepared by the Federal Highway Administration (FHA) for certain transportation projects if the document addresses all areas of analysis required by the land management agency. Allows Federal land management agencies to use environmental documents previously prepared by FHA for projects addressing the same or substantially the same action. Under certain circumstances, allows Federal land management agencies to use Categorical Exclusions established by the FHA.

Critical Minerals .

Requires BLM and Forest Service to complete the Federal permitting and review processes with maximum efficiency and effectiveness while supporting economic growth. Requires DOI and USDA to provide a report that identifies measures that would increase the timeliness of permitting activities for the exploration of domestic critical minerals (among other requirements). After submission of the report, DOI  and USDA are required to develop and publish a performance metric for evaluating progress to expedite permitting for exploration.

(this doesn’t itself tweak NEPA practices, but could potentially lead to some recommended tweaks in the future; similar to the Wildfire Commission.)


Infrastructure Bill Forestry Provisions Summary: And Some Miscellaneous Goodies in 40804(b)


NAFSR (FS retirees organization) was kind enough to generate and post this summary of the Infrastructure Bill (passed, not to be confused with the Recon bill we have discussed earlier). So many items of interest to discuss!  Let’s look at one big chunk of $ here, lots of diverse goodies we might not expect to find:

40804(b) the portion designated for the FS is directed to be spent as follows:
• (1) $150 million for FS to enter into landscape-scale contracts, including stewardship contracts, to
restore ecological health on federal land (over 10,000 acres per contract) and $100 million to DOI to
establish a Working Capital Fund that may be accessed by both DOI and USDA to fund requirements
of landscape-scale contracts, including cancellation and termination costs, consistent with section
604(h) of HFRA and periodic payments over the span of the contract period
• (2) $160 million for FS to provide funds to States and Tribes for implementing restoration projects on
federal land through the Good Neighbor Authority
• (3) $400 million for USDA to provide financial assistance to facilities that purchase and process
byproducts from ecosystem restoration projects, based on a ranking of the need to remove the
vegetation and whether the presence of a new or existing wood product facility would substantially
reduce the cost of removing the material. Also encourages the spending of other federal funds based
on the ranking criteria for removal of vegetation and presence of a wood processing facility or forest
worker is seeking to conduct restoration treatment work on or in close proximity to the unit.
• (5) $50 million for FS to award grants to States and Tribes to establish rental programs for portable
skidder bridges to minimize stream bed disturbance on non-Federal land and Federal land.
• (6) $100 million for FS to detect, prevent, and eradicate invasive species at points of entry and grants
for eradication of invasive species on non-federal land and on federal land
• (7) $100 million (split between DOI and FS) shall be made available to restore, prepare, or adapt
recreation sites on Federal land, including Indian forest land or rangeland with (as described in
o $35 million shall be made available to FS to restore, prepare, or adapt recreation sites on Federal
land, including Indian forest land or rangeland, that have experienced or may likely experience
visitation and use beyond the carrying capacity of the sites.
o $20 million shall be made available to FS for the operation, repair, reconstruction, and
construction of public use recreation cabins on National Forest System land; and the repair or
reconstruction of historic buildings that are to be outleased under section 306121 of title 54,
United States Code. Of the 20 million, $5 million shall be made available to the Secretary of
Agriculture for associated salaries and expenses in carrying out that subparagraph.
o A project shall not be eligible for funding under this subsection if funding for the project would
be used for deferred maintenance, as defined by Federal Accounting Standards Advisory Board;
and the DOI or USDA has identified the project for funding from the National Parks and Public
Land Legacy Restoration Fund.
• (8) $100 million to FS to restore native vegetation and mitigate environmental hazards on federal and
non-federal previously mined land.
• (9) $130 million for FS to establish and implement a national revegetation effort on Federal and nonFederal land.
• (10) $80 million to FS establish a collaborative-based, landscape scale restoration program to restore
water quality or fish passage on Federal land, in coordination with DOI. Section 8004(f) includes
language establishing this competitive program for five-year proposals of not more than $5 million
each. Gives priority to a project proposal that would result in the most miles of streams restored for
the lowest amount of Federal funding.


Lots of goodies here for everyone… I thought the $400 mill for financial assistance to groups that “purchase and process byproducts” was interesting; so far that has seemed like a place where financial nudges could help restoration efforts along.

Tomorrow.. the NEPA-related provisions.