WEG and Oregon Wild Argue That They Can’t Afford $4600 Award to Feds Despite Joint Annual Revenues of $7.5 Mill

Thanks to Nick Smith for this one, from the Capital Press.

Two environmental groups must pay about $4,600 of the U.S. government’s litigation expenses following the dismissal of their lawsuit against commercial thinning in southeastern Oregon.

A federal judge has ordered Oregon Wild and Wildearth Guardians to compensate the U.S. Forest Service for the cost of processing paperwork related to three disputed projects in the Fremont-Winema National Forest.

The environmental plaintiffs claimed the $4,655.80 bill would discourage similar “public interest” lawsuits in the future.

However, U.S. District Judge Michael McShane disagreed, ruling they “have not provided sufficient evidence that an award of costs would be inequitable or create a chilling effect” on such actions.

The judge also said the lawsuit wasn’t of such extraordinary importance that the U.S. Forest Service should be barred from recovering its costs as the prevailing party.

“The court will not allow plaintiffs to hide behind the subject matter of the litigation they initiated to avoid costs Congress intended them to pay” under federal law and court rules, McShane said.

Last year, the plaintiffs filed a complaint alleging the government’s plan to commercially thin 29,000 acres under the three projects was too expansive to “categorically exclude” from environmental review.

In August, however, the judge ruled such analysis wasn’t legally required for the South Warner, Bear Wallow and Baby Bear projects under an exemption for certain habitat improvement treatments.

After the lawsuit was thrown out, the Forest Service asked to be compensated for the money paid to a third-party vendor for converting paper administrative records into searchable PDF computer files.

The environmental plaintiffs objected, arguing they’d brought the case in good faith because the agency’s implementation of forest regulations affects “the entire National Forest system,” not just the 29,000 acres in question.

“Through cases like this one, plaintiffs and other conservation organizations help ensure that federal agencies properly manage public lands and remain accountable to the public they serve,” the nonprofits said.

The government countered that environmental groups are actually encouraged to file lawsuits against federal agencies under the Equal Access to Justice, under which they can recover attorney fees and other litigation costs.

For example, Wildearth Guardians was awarded nearly $300,000 for winning a case against the Forest Service last year, the government said.

The government also pointed to recent tax filings that showed annual revenues of nearly $3 million earned by Oregon Wild and $4.5 million earned by Wildearth Guardians.

“Public information indicates that plaintiffs have adequate means to pay for the modest bill of costs here,” the government said.

The judge said legal precedents allow him to consider the financial resources of plaintiffs, but in this case they’ve “not demonstrated that a severe injustice will result from an award of costs.”

Oregon Wild and Wildearth Guardians had previously appealed the underlying decision to allow commercial thinning on 29,000 acres to move forward.

The groups have now amended their filing with the 9th U.S. Circuit Court of Appeals to also challenge the government’s $4,600 award.

Cut and Sold Report: Waiting For Update

On 11/29 there was a news story in E&E news about the 2023 Forest Service cut and sold report.

The administration’s 10-year wildfire strategy rests in part on harvesting but also puts new emphasis on prescribed fire.
Altogether, the agency said it exceeded its goal of reducing hazardous wildfire fuel on 4 million acres in the fiscal year and used fire on a record 1.9 million acres. “I’m pleased to report that we have made significant progress in implementing this daring and critical strategy,” Forest Service Chief Randy Moore said on the agency’s website.
The American Forest Resource Council, representing the wood products industry, called the cut-and-sold annual report encouraging in that the agency reversed declines from the two previous years. Harvests were the greatest since 1999. “We hope that this trajectory of growth in new offerings continues in future years at a rate that can keep up with the growth of demand for wood products illustrated by the increase in last year’s harvest levels,” said the Portland, Oregon, group’s public affairs director, Nick Smith.
In the report, the Forest Service valued the cut timber at about $163 million. A total of 113,577 sales generated $155.4 million, according to the agency.
And while certain forests, such as the nearly 17-million-acre Tongass National Forest in Alaska, generate many of the headlines on timber versus forest preservation, other, smaller national forests are the engines of timber production.

While the Forest Service cut 18.1 million board feet on the Tongass, that pales in comparison to the 321 million board feet reported cut on the 708,000-acre Daniel Boone National Forest in Kentucky, 87 million board feet on the Colville National Forest in Washington state and 86 million board feet cut on the Mark Twain National Forest in Missouri, for instance. Oregon is a top state for timber harvesting, with 333.3 million board feet cut for the fiscal year, which ended Sept. 30. So is California, with 223.3 million board feet.

The annual report also shows disparities from one region to another.
Region 1, covering Montana, northern Idaho and part of Washington state, saw a decline of 16 percent in volume sold from fiscal 2022, which Smith attributed to ever-present litigation on proposed projects. Region 5, in California, had a 1 percent increase but has been held back by wildfires that reduce the value of timber that can be salvaged, Smith said. On the other hand, Region 6, covering Oregon and most of Washington state, reported a 17.3 percent increase in volume sold.

Personal Use Firewood?

The report came with a side note that’s important, said Bill Imbergamo, executive director of the Federal Forest Resource Coalition, representing companies that harvest from federal lands. The sales figures include wood cut for personal firewood, which the Forest Service allows through permits. Those permits aren’t reflected in the data for volume cut, however. Imbergamo said his organization supports permits for cutting of personal firewood but doesn’t believe they should be counted as timber achievements, since firewood-cutting projects aren’t subject to the National Environmental Policy Act and aren’t competitively bid in the way commercial timber is.

I wonder what the sales figures for personal use firewood are?

To environmental groups, the Forest Service striving to boost the numbers puts the Biden administration’s carbon-reducing goals at risk, as healthy forests are a major carbon sink. Many say the federal government should stop logging old growth and scale back cutting of mature forests on land it manages.

I can safely say, given my review of comments on the Climate-Smart Agriculture and Forestry request for comments by USDA, that not all environmental groups feel that way. Even large ENGO’s like TNC and EDF would not agree with that. For example EDF, here, and most people are aware that TNC has a ginormous contract to help the FS with fuel treatments of various kinds, including mechanical thinning.  It would be helpful if folks would mention which environmental groups they spoke with more specifically. Otherwise it seemingly gives some environmental groups’ views legitimacy at the expense of others. As far as I know there isn’t an organization of ENGO’s that determines the Official ENGO Party Line on issues.

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Anyway, eagle-eyed Andy Stahl pointed out that the Daniel Boone’s was certainly off as it was usually in the neighborhood of 2-10 mmbf, not 321.  Apparently the FS is correcting this, and we will post the update when we receive it.

High Litigation Rates for Energy Projects: Bennon and Wilson (2023)

Michael Bennon at Stanford with Devon Wilson authored this interesting NEPA study.

Here are a few of their conclusions:

We observe predevelopment litigation on 28% of the projects requiring an environmental impact statement, 89% of which involve a claim of a NEPA violation. The highest litigation rate is in solar energy projects, nearly two-thirds of which are litigated. Other high-litigation sectors include pipelines (50%), transmission lines (31%), and wind energy projects (38%)

If anything, and at the highest possible level, we conclude that current debates regarding the question of permitting reform are overly focused on NEPA’s administrative process and comparatively neglect NEPA’s judicial process. Judicial review of NEPA appears to significantly impact infrastructure project development in the United States, and it impacts both the projects that are litigated
and those that are not.

Although the suthors are “happy to qualify that conclusion as limited to large infrastructure projects”, I think it is also relevant to forest management projects.

As discussed herein, many prior studies of NEPA practices and environmental litigation have focused on land management agencies such as the U.S. Forest Service or the Bureau of Land Management (BLM). We aimed tofocus specifically on infrastructure projects because they differ from area management or forestry projects in terms of both the impacts of the federal actions on the environment, and the practical impacts of environmental litigation on the projects.

One thing that’s obviously very different, and not in this quote, is the role of proponents. Let’s think about a fuel treatment project.. it is mostly between people who want it (including timber folks if there is a mill around) and people who don’t want it. For the most part, loggers and mills are not making investment decisions based on a specific project making it through the litigation mill. To the contrary, geothermal, solar and wind companies are subject to the whims of interest rates, the time value of money, supply chain difficulties and so on. Their operational environment is substantially more complex, and it appears that their connections to political actors may be stronger than, for example, Tina and her family who run Tina’s Sawmill. In the Forest Service, these projects may be more like Wolf Creek or ongoing litigated projects with specific proponents.

It is possible that NEPA’s architects, even Senator Jackson, failed to foresee28 the volume of litigation that would stem from the law because the environmental law sector was nascent, almost nonexistent, at the time of NEPA’s passing.

In fact, it is remarkable that NEPA’s evolution has been so primarily driven by case law rather than executive orders or major guidance by CEQ. After the 1978 CEQ guidance changes, NEPA did not undergo another major guidance change until CEQ published another revision in 2020, which was followed by additional rulemakings in 2021 and 2022.

In the case of NEPA, that limiting principle on the scope of environmental study is not found in law. NEPA’s “opaque, constitution-like language seems to give courts enough latitude to subject NEPA documents to either the hardest of looks or the softest of glances.”43 Judicial flexibility translates to agency uncertainty, to the point that permitting time and effort may be driven less by the anticipation of environmental impacts and more by the presence of conflict, or stakeholders with the resources and motivation to litigate against the project.44
The procedural nature of NEPA litigation is a key driver of “litigation proofing” and why contentious environmental studies under NEPA tend to grow into the many thousands of pages, despite the fact that strict page limits for EISs have been recommended by CEQ guidance since 1978. When asked to review NEPA studies, courts are deferential to federal agencies on their substantive determinations.46

On the question of limitations for its judicial reviews of agency NEPA decisions, the court in the Calvert Cliffs’ decision stated: “Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgement for that of the agency.”

I keep reading that, but that’s not my lived experience. For example, I remember courts ruling that the BLM’s air quality model should not have been used; often courts weigh in on scientific controversies against the agency position. It’s entirely possible I’m missing something important and legal here, so maybe legal folks can enlighten me as to some kind of overall pattern in agency deference. Anyway…

They are far less deferential when considering topics, impacts, or alternatives that were not included in the environmental study. This dynamic can create a game of “cat and mouse” for project opponents and federal agencies, in which potential litigants try to identify and comment on alternatives or impacts that were not studied, and federal agencies are left to study everything as a means of litigation-proofing their environmental study.

Yes, cat and mouse, and sometimes it feels like judges “bring me a rock, no not that rock” to the agencies.

What the authors have to say about the “denominator” issue

Additionally, many prior studies have taken a very broad approach to estimating the prevalence of NEPA litigation. They do so by dividing the number of cases filed under NEPA (on average just over 100 annually) by the total number of agency actions that could be subject to NEPA litigation, which includes CEs and EAs (on the order of tens of thousands of actions). Most of those estimates rationally find that the litigation rates associated with NEPA are “exceedingly low.”130
Yet, we find such a calculation underwhelming, and especially so for our purpose, which is to study the impacts of the NEPA process on infrastructure development. The rate of NEPA litigation against all NEPA actions is less useful in part because the distribution of actions is extremely skewed. CEs constitute the vast majority of federal actions (upwards of 99%), and most of these permits are relatively short in duration for relatively minor actions.

This is an interesting observation.

We can generalize a bit and classify what we observe as two distinct but overlapping strategies for navigating federal environmental permitting: one that accepts a higher degree of litigation risk and thus has shorter permitting timelines but also higher rates of litigation, and another that has very long permitting timelines, perhaps due to litigation-proofing, and thus relatively lower rates of litigation. The question of which of these “strategies” is optimal would likely be determined by a wide range of unique circumstances of the environmental impacts, politics, and economics of a specific project.
However, we do note that in the sectors with higher rates of private investment in predevelopment, project sponsors appear to accept more permitting risk and to complete permits faster.

And something I’ve argued for:

The litigation databases that we used for this study are naturally oriented toward their users, or attorneys, and thus focused on published cases and legal precedent. Empirical research is much more challenging to conduct, especially in the many cases that do not result in a published opinion, or which are resolved via settlement. The result is a lack of transparency in many of the most important decisions regarding our public works and their mitigations, because many of those decisions are made during litigation settlement negotiations or during negotiations with stakeholders in the shadow of their threats of litigation.
It is in the public interest for transparency to be significantly increased in NEPA litigation and for other costs and litigation associated with the permitting of infrastructure projects. Recent legislative proposals have included transparency requirements addressing only minor, direct costs, such as the agency expenses to prepare an environmental study. A better alternative would be a requirement for federal agencies to publish online all documentation associated with project litigation during predevelopment, alongside the (already) publicly posted environmental study for the project. Given the public interest in project litigation, agencies should also be required to publicly disclose litigation documents instead of leaving journalists and the public to contend with and pay for federal court records.

Finally, here is their chart of kinds of projects they studied, litigation rate, average permit duration and counts.

Seattle Times Story on Osborne Landscape Forest Photo Comparisons

Many thanks to John for this link to a Seattle Times story on John Marshall, who is taking photographs from the same areas as the Osborne photos of the 1930s.   Very cool photos and it’s not paywalled.  If you want to learn more about the Osborne photos, Bob Zybach provided a link to a project trying to provide comparison photos  over a broad area.  The Osborne photos from some areas you may be familiar with are posted on the site.  This seems like a useful effort, and it sounds like lots of different folks are funding different parts. I’m surprised someone with funds doesn’t take this on more broadly and coordinate.  Here are some quotes from the story:

His images, taken from the same vantage points nearly a century later, illustrate the consequences of relentless fire suppression. Across the state, Marshall has documented the transformation of landscapes historically characterized by patchworks of saplings, mature trees, shrubs and meadows — all shaped by frequent, small fires. Today, clearings have been swallowed up. Habitat diversity has diminished, and ridges and hillsides are thick with timber. Many forests, especially in Central and Eastern Washington, are stressed by overcrowding, heat, drought and insect infestations — and primed for megafires.

It’s not a new story, but the pictures tell it in a way words can’t.

…..

Forest Service ecologist Paul Hessburg, who helped recruit Marshall to the panorama project in 2010, has used the before-and-after images in scores of scientific publications and nearly 200 presentations to peers and the public, making the case for allowing some fires to burn and deliberately setting others to reduce the risk of massive blazes.

“These visuals are so powerful because they show the scale,” says Hessburg, who’s based at the Pacific Northwest Research Station in Wenatchee. “People come up to me after talks and say, ‘You know, I wouldn’t have believed it until I saw it — but there it is.’ ”

The panoramas also helped Hessburg bust a long-standing myth that high-elevation forests in the Northwest hadn’t burned frequently in the past. “John and I have been working together in different geographies to show people how, in 100 years or less, the forest has changed,” he says. “And it’s changed more than we could have even imagined until we had these pictures.”

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The agency recently launched a forest health initiative that includes tree-thinning and prescribed burns. “We’ve grown up with these dense, thick forests, so people naturally think that’s what a healthy forest looks like,” says Chuck Hersey, of DNR’s Forest Resilience Division. “But our fundamental forest health problem in Eastern Washington is that there’s too many trees.” Side-by-side images separated by nine decades make the case at a glance, showing the stark changes in the landscape.

One example is Squilchuck State Park near Wenatchee, where fire used to sweep through every dozen years or so before land managers started snuffing out every blaze. A detail shot from the 1934 Osborne panorama shows open meadows interspersed with clumps of mature, fire-resistant Ponderosa pine and sparser stands of firs and other species. In the image Marshall made in 2018, the area is blanketed with wall-to-wall trees. The pictures helped Washington State Parks explain its rationale for two recent thinning operations to lower the fire risk.

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In 1934, several patches across the landscape had recently burned, he explains. Some were ringed with shrubs and deciduous trees. Now, most of those areas are completely knitted in with conifers. But in other places, there seem to be more openings in the tree canopy today than 90 years ago.

“That’s due to insects and disease,” Marshall says. While fires clear out flammable material, infestations don’t. “It only adds to the fuel loads, which are just ginormous now.”

We might want to email the reporter and thank her.. “catch people doing something right”.. maybe FS folks remember the training we had on that..

Disadvantaged People Live in Wildfire Areas: New Study

From the CEQ EJ screening tool

Yesterday we were discussing environmental justice and residents of dry forests. Jon said “Beyond the formal environmental justice realm (which does not appear to include “rural communities in dry forests”), this is pretty much a matter of opinion, and not a very practical criterion.”

I ran across this article in Wildfire Today which raises other questions.  In addition to Jon’s question, I think pre-climate change, some people were originally not sympathetic to dry forest inhabitants (they shouldn’t live there).  Now that wildfire is thought to be a result of climate change, though, it seems like attention has been drawn to the fact that low income people also live here. Which I think we knew, but…

I don’t know about 90 percent of all people exposed.. maybe there is a map somewhere that shows it. Also how “exposed” is defined.

Around 90 percent of all people exposed to wildfires over the past 23 years lived in either California, Oregon, or Washington. Among those, researchers found a disproportionate number were poor, a racial minority, disabled, or over the age of 65.

recent study examined the “social vulnerability” of the people exposed to wildfires over the last two decades. Social vulnerability describes how persons with certain social, economic, or demographic traits were more susceptible to harm from hazards including wildfires or other natural disasters.

From 2000 to 2021, the number of people in the western United States who lived in fire-affected areas increased by 185 percent, while structure losses from wildfires increased by 246 percent. The vulnerability of the people living there, however, isn’t well known despite these populations potentially never recovering after a disaster strikes.

Researchers asked whether highly vulnerable people were disproportionately exposed to wildfire, how vulnerability has changed over the past 20 years, whether population changes before a fire alter the vulnerability of the population, and whether social vulnerability of people exposed to fires was equal among states.

Each of the three West Coast states recorded disproportionate wildfire exposure of the socially vulnerable; Oregon and Washington had more than 40 percent of their exposed population being highly vulnerable while California had around 8 percent of of those exposed considered highly vulnerable. The most vulnerable populations were also those with low income, while age, minority status, and disability also affected populations’ ability to cope after wildfire.

The number of highly vulnerable people exposed to fire in the three states also increased by 249 percent over the past two decades. An increase in social vulnerability of populations in burned areas was the main contributor to increased exposure in California, while Oregon and Washington saw wildfires increasingly encroaching on vulnerable population areas.

“Our analysis highlights the need to increase understanding of the social characteristics that affect vulnerability, to inform effective mitigation and adaptation strategies,” the study said. “Particular attention to residents who are older, living with a disability, living in group quarters, and with limited English-speaking skills may be warranted, and cultural differences need to be addressed for effective policy development and response.”

Other research published earlier this year, The Path of Flames: Understanding and Responding to Fatal Wildfires, found unequal access and assistance could also play a role in who survives and who dies during catastrophic wildfires. In the study, researchers found that for many of the Paradise, California  residents who died in the 2018 Camp Fire, the inability to evacuate on their own was a major factor in their deaths.

PERC’s Crazy Mountain Virtual Fence Project

Lanie White, and her brother, Harrison White, manage the ranch’s operations.

I’m always a fan of cool conservation technology.. from PERC

PERC is partnering with Montana’s McFarland White Ranch to help implement an innovative virtual fence project for cattle, a cutting-edge technology that could revolutionize both ranching and wildlife conservation.

The project will initially remove 16 of the ranch’s 75 miles of internal barbed-wire fencing and replace it with a virtual fence network that allows the rancher to remotely map and manage livestock through a series of signal towers and GPS collars worn by cows. Barbed wire fences are a key barrier to wildlife migration throughout the West. While other pilot projects and implementations are underway, this is the first to explicitly evaluate the technology for both migratory wildlife conservation and its effect on production agriculture—specifically, economic impact, range, and livestock benefits.

Under the agreement, PERC is funding key infrastructure to implement the virtual fence and clear a path for wildlife migration, including directly purchasing one of six signal towers needed to establish a signal across the virtual network.

Fences are trouble for wildlife and ranchers
Located at the doorstep of Montana’s Crazy Mountains, the McFarland White Ranch is home to 2,000 head of cattle, rough landscapes, and abundant wildlife. Thirty-two bird species of concern including Clark’s nutcracker, ferruginous hawk, thick-billed longspur, bobolink, sharp-tailed grouse, and sandhill cranes are found on the Audubon-certified ranch. Migratory wildlife including elk, deer, and pronghorn are also common, as well as predators such as wolves, mountain lions, and black bears.

Wildlife including elk and pronghorn can get caught in traditional fences, birds often fatally collide with wires, and ecologically sensitive areas are difficult to fence off with any degree of flexibility.

Repairing barbed-wire fencing is a constant worry for ranchers as well.

How virtual fencing works:

Cattle are equipped with a GPS collar that emits a sound when the livestock approaches a virtual boundary, then a light shock if the animal crosses the boundary, which continues for several yards, effectively deterring cattle from entering the areas that the rancher has fenced off. Cattle need only a few days to learn that the sound from the collars means it is time to turn around.
Solar-powered signal towers connect across the virtual network. Each solar-powered tower covers roughly 10,000 acres of range, depending on topography, and costs approximately $12,000.
An app tracks the cattle’s location and sends alerts if the cattle attempt to leave the virtual fence boundary. The rancher can also adjust the boundaries directly from the app.
External fencing will be maintained to prevent commingling with neighboring herds and comply with Montana law.


Benefits for ranchers:

Virtual fencing significantly reduces the need for traditional barbed-wire fences, bringing notable benefits:

The virtual system allows for easily customizable boundaries.
Ranchers can more easily track the location and status of their cattle, helping with predator control and herd management.
Removing bared-wire fences, which require costly and time-intensive repairs, can save ranchers considerable time and money.

And we can imagine tracking wolves at the same time,  and maybe sending drones to scare them off..

Update on Tulare Wolfpack and Legal Question

A gray wolf is seen in the Sequoia National Forest.
Michelle Harris, Samantha Winiecki-Love, Ryan Slezak and Colibri Ecological Consulting/via the California Department of Fiash and WIldlife

I thought we’d take a break from the generalized permitting reform discussion to a specific question. Thanks to Claudia Elliot, we have a roundup of the news on the Tulare Wolfpack. I posted on the media coverage of the new wolf discovery here.  My legal question has to do with the discovery of new information on ongoing projects.

The Legal Question

Quoting from Claudia here:

The letter, dated Aug. 15, was on behalf of four organizations that have a long history of activism related to giant sequoia issues — the Kern-Kaweah Chapter of the Sierra Club, the Sequoia Taskforce of the Sierra Club, the John Muir Project of Earth Island Institute and Sequoia ForestKeeper.

Sent just one day after the California Department of Fish and Wildlife released news of the wolf pack, the letter states that the new information “implicates ongoing actions the Forest Service is currently implementing, including the Region 5 Post-Disturbance Hazardous Tree Management Project and the Emergency Response, R5 Giant Sequoia Fuels Grove Reduction and Restoration Projects.

“The Forest Service should place a pause on those actions and, in consultation with the U.S. Fish and Wildlife Service, determine whether any activities associated with those projects and others could adversely affect the wolves.”

in the letter, the authors state specifically:

Immediately, this new information implicates ongoing actions the Forest Service is currently implementing, including the Region 5 Post-Disturbance Hazardous Tree Management Project and the Emergency Response, R5 Giant Sequoia Groves Fuels Reduction and Restoration Projects. The Forest Service should place a pause on those actions and, in consultation with U.S. Fish and Wildlife Service, determine whether any activities associated with those and other projects could adversely affect the wolves.
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The significant new information of the presence of wolves requires supplemental analyses. In doing so, NEPA requires the Forest Service to consider the potential direct, indirect, and
cumulative effects on wolves. Moreover, the ESA requires that the Forest Service find ways to mitigate project and other effects to avoid potential take, including harassment.

It sounds like existing projects need to be reviewed because the wolves moved in. Would this be equally true for, say, the new discovery or movement into the area of endangered species if the project was a wind farm or solar facility or a transmission line? Is the process different for ongoing projects vs. designing new ones?

Update from Claudia Elliott

I’ve paused my twice-weekly Giant Sequoia News until January to allow time to establish what I hope will be a network of journalists and others to better cover giant sequoias and related Sierra Nevada issues. I’m planning an update about the wolves for early January.

In the meantime, here’s a recap of what’s been reported since news of wolves on Sequoia National Forest in August:

From Giant Sequoia News:

Aug. 14, 2023: ‘Wolf flowers’ and wolves – not just giant sequoias can be found in forests of Sierra Nevada

Sept. 11, 2023: ‘About those wolves… Groups call for a pause on Sequoia National Forest projects

Sept. 14, 2023: ‘More about those wolves… Forest Service acknowledges ESA ‘obligations’

Sept. 18, 2023: ‘What Sequoia National Forest had to say about gray wolves last week’

 

There was a flurry of reporting in August and September after the California Department of Fish and Wildlife made the first report about the wolves. More recently, The Guardian published a piece HERE that included news that the wolves were believed responsible for killing cattle on the Tule River Reservation. The reservation is surrounded on three sides by Sequoia National Forest/Giant Sequoia National Monument.

Since The Guardian report, Scientific American HERE, Newsweek HERE, and Wildfire Today HERE have published pretty much the same story.

As I reported on Sept. 11, four organizations that have a long history of activism related to giant sequoia issues — the Kern-Kaweah Chapter of the Sierra Club, the Sequoia Taskforce of the Sierra Club, the John Muir Project of Earth Island Institute and Sequoia ForestKeeper — called upon Sequoia National Forest to “pause” certain activities (specifically some of the giant sequoia emergency response work and Region 5 Post-Disturbance Hazardous Tree Management Project) to consult with the U.S. Fish and Wildlife Service ti determine whether any activities associated with those projects and others could adversely affect the wolves.

Regional Forester Jennifer Eberlien’s response to the letter was short and included this: “We, too, are thrilled to learn about the wolves. We appreciate your perspective on the potential effects to the wolves from current and future projects and your suggested design features. We acknowledge that we have obligations under the Endangered Species Act and National Environmental Policy Act to review new information.”

Here’s a link to the news release that Sequoia National Forest released on Sept. 14: https://www.fs.usda.gov/detail/sequoia/news-events/?cid=FSEPRD1138931

In mid-September, Jordan Traverso, a spokesperson for the CDFW, responded to my request for information about what concerns the state agency may have about forest management activities in the area of SQF where the wolves were found during the summer.  He said: “We have not offered a recommendation about fuel reduction in the Sequoia National Forest, though we are familiar with controlled burns as an important method of fuels management. We are tracking the discussion and will continue to work with partners, including the Tule River Tribe of California and U.S. Forest Service, to protect the wolves and their habitat regardless of whether prescribed burns proceed in the area or not.”

 

Bipartisan Policy Center Ideas for Reforming Judicial Review: What Do You Think?

I first ran across The Bipartisan Policy Center when I read their comments on the USDA Climate Smart Forestry and Ag comment request. I was impressed by their work, especially since we don’t usually see them in the forest space. Students: there appear to be many spring internships with them.

Anyway, this fall they published  “Reforming Judicial Review for Clean Infrastructure:  A Bipartisan Approach.”

BPC has had three roundtables thus far with experts from across the political spectrum.

This roundtable was the third in a series on permitting. The first roundtable focused on public engagement, and the second focused on permitting linear infrastructure (i.e., transmission and pipelines). The goal of this roundtable was to foster robust discussions on reforming the judicial review process related to permitting, with participants weighing the pros and cons of a variety of policy proposals from across the political spectrum.

According to a forthcoming study of 355 of the largest energy and transportation projects between 2010 and 2018, solar energy projects experienced the highest litigation rate, with nearly two-thirds facing a claimed National Environmental Policy Act (NEPA) violation. Transmission and wind energy projects similarly face higher-than-average rates of litigation, as well as light-rail transit projects. Maintaining opportunities for people to file meritorious lawsuits against projects that have the potential to unduly harm the environment or communities is vital. Nevertheless, the status quo prevents the accelerated build-out of desperately needed infrastructure, all while increasing costs and discouraging investment.

Since many of us have experience with lawsuits (on the USG and plaintiff sides) I’m curious as to what you think about these.  I put my opinions below each one, more to prime discussion than anything else.

(1) Option: Reduce the Statute of Limitations

Under current law, initial lawsuits can be filed for up to six years after final permitting decisions. Participants generally agreed on the value of reducing that time frame.

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Current proposals in Congress vary for placing time restrictions on legal challenges, ranging from 60 days up to three years. Some participants advocated shorter time limits, while others wanted to ensure that affected communities would have a longer period to file lawsuits. Although no consensus on a specific time frame was reached, the majority felt that a deadline of two years or less to file suit was acceptable, and most were comfortable with a statute of limitations under one year.

I like two years, seems like most file by then anyway in our world.

(2) Option: Reduce Standing 

One proposal raised by participants, similar to a provision in H.R. 1 passed by the House of Representatives earlier this year, is to limit eligibility to those who raised concerns during the public comment period in the administrative process: If a person or group did not express their concern during the process designed to receive such comment, then they would not be able to petition the courts after the administrative process ended. Some participants expressed concern that such limitations could shut persons out directly affected by a project but were not aware or able to participate in the administrative process. Participants also noted that if this change were adopted, agencies would need to do a better job advertising and make the public comment process accessible.

This has always seemed like a no-brainer to me, since people who can afford lawyers tend to also track projects pretty well.  However, I suspect different agencies do better and worse at public engagement.

(3) Option: Elevate Litigation Filed after Final Agency Actions Directly to U.S. Courts of Appeals

One proposal that received near unanimous support at the roundtable was to elevate litigation directly to an appeals court following the administrative process. This option would speed up the entire litigation process by bypassing district courts and eliminating a step in the judicial process. Because litigation under NEPA is essentially an appeal of a government agency decision, participants agreed that moving directly to a court of appeals would streamline the process without undermining the rigor or thoroughness of judicial review.

I don’t see a downside to this..

(4) Option: Establish a Technical Court with Jurisdiction Over Federal Permitting Decisions

Another proposal that received general backing is the establishment of a single technical federal court with jurisdiction over American Procedure Act reviews and NEPA decisions. This court would have the expertise to address these cases in an effective and timely manner. Participants noted that the U.S. Court of Appeals for the D.C. Circuit already has environmental review expertise and could play this role well. Participants also noted that sending appeals directly to a single technical court would solve the issue of court shopping. Overall, participants agreed that this would be an effective solution that would provide certainty to project developers and appropriate judicial review.

I like this one, as I’ve said before, it would be easier for practitioners to track case law and perhaps make for more consistent case law.

(5) Option: Establish a Permitting Review Board for Energy Projects

Similar to the Environmental Protection Agency’s Environmental Appeals Board, an independent technical appeals board consisting of judges would act as a forum for parties to appeal permitting decisions for energy projects. After a final permitting decision is issued, rather than filing an appeal with district courts, litigants could appeal to a review board that attempts to resolve disputes between the parties. If the board is unable to resolve a dispute, the appealing party can raise their concerns to U.S. Circuit Courts of Appeals. The review board could help concentrate permitting expertise in a single independent body and expeditiously resolve disputes. However, some roundtable participants added that appointments to this board would need to be handled with care to avoid it becoming politicized.

If this is important for climate mitigation (renewable energy) why not climate adaptation.. say fuels and prescribed burning projects?  I like the “resolving disputes” aspect rather than “remandng for more paperwork.”

(6) Option: Setting Court Deadlines

A proposal that participants found appealing was to set deadlines for court actions, such as requiring court decisions on federal permitting challenges within a time frame designated in statute. However, there was skepticism as to whether the legislative branch’s decision to place time restrictions on the judiciary would withstand constitutional scrutiny, or whether the deadline would be enforceable.

Constitutional dogs usually won’t hunt.

(7) Option: Setting Deadlines on Agency Remand

Some participants proposed requiring courts to set deadlines for agency action when the judges remanded a decision. (A remand is when the courts send the decision back to the agency for further consideration, or when a judge vacates a permit, which means the courts invalidated or canceled the permit.) In these cases, deadlines for agency action would provide needed certainty on the timeline for next steps for developers. However, as with the previous option, participants questioned whether requiring courts to set agency deadlines would withstand constitutional scrutiny. Congress could, however, set agency deadlines for agency action following remand, though a deadline set in statute would have less flexibility than one set by a court for a specific action under review.

Most agencies don’t kick back and take a break with a remand anyway, so I don’t know what deadlines would help with.

(8) Option: Narrowing the Scope of Decisions

Participants broadly supported narrowing judicial outcomes by directing the courts to specify aspects of review requiring additional analysis, revision, or remand. By specifying the particular aspects requiring attention, agencies  can focus their efforts on rectifying specific deficiencies without the need to entirely vacate permits. This would streamline the process and promote more efficient decision-making. The familiarity of this procedure to the D.C. Circuit also garnered support, as it builds upon existing practices that have proven to be effective in addressing complex regulatory challenges.

I think they already do this to some extent in our world. Not sure I understand when and when not. Maybe our legal friends can help us out here?

(9) Option: Direct CEQ or the Permitting Council to Develop a Public Database of NEPA Lawsuits

Roundtable support was strong for the Council on Environmental Quality (CEQ) or the Permitting Council to establish a public database of NEPA lawsuits that would include information about timelines for both filing of initial claims and total length of the judicial review process. CEQ previously tracked such data, but it stopped doing so in 2013. One participant stressed that transparency is critical for accountability.

Duh. Transparency is also critical for coherent public policy, as well as useful policy discussions and writing of papers.

Old Growth” How Much is Enough?

Dovetail partners has a new report, “Old growth forests: How much is enough?

Many of us have an emotional or even spiritual connection to old growth forests. This is not just because we like to see big old trees, but because of the multitude of ecosystem services and diverse values they provide. The Forest Stewards Guild lists those services as including wildlife habitat, carbon storage, stabilization of watersheds, nutrient recycling, and biodiversity, amongst others. Old growth forests have also historically had economic and social value by providing timber products and supporting forest based businesses and communities. These forests have cultural and social value to Indigenous peoples, First Nations, and Tribes.  

In this report, we explore the different definitions of “old growth” applied globally and in regions of North America and Europe, including their scientific basis. From these definitions, we examine where old growth forests exist in the world, with a focus on the United States (US) and the European Union (EU).  The report considers why we need old growth forests, and conversely, why we do not, and includes a discussion of old growth forest protection and management. We conclude with a discussion of how much old growth is ‘enough’, how we can create more, and how our understanding of the relationship between people and forests is evolving.

Cut to the conclusion:

The Bottom line

The question of “What is old growth?” holds many definitions depending upon the scientific, cultural, and policy lenses that are applied. The variety in these definitions is a recognition that tree species, climate, soil productivity, human interaction, and disturbance history all influence the development of forests. The question of “How much old growth forest is enough?” can seem almost unanswerable because it is contextual and there are many possible and often competing answers. There are forests that previous generations chose to protect, which current generations will also say deserve protection, and that future generations will wrestle with in their own debates.

Old growth forests have historically had economic and social value by providing timber products and supporting forest based businesses and communities. These forests have cultural and social value to Indigenous peoples, First Nations, and Tribes. Intact old growth forests provide multiple benefits, but the type of wood provided from these forests is no longer essential to meeting our raw material needs. Today’s engineered wood products can produce dimensionally stable beams that are structurally superior to equally large beams from large-diameter trees. Consequently, the value of old growth timber has fundamentally changed, and new approaches for management need to be considered. A new relationship with old growth forests that respects and honors the role of people as part of nature and elevates our capacity to care for forests and engage in these practices is needed. With proper management, creation of secondary old growth forests is possible, and can eventually provide the attributes and benefits of old growth forests. The emerging practice of managing maturing forests to provide old growth characteristics is a strategy deserving of increased attention.

Institute for Progress Post on Permitting Reform and NEPA

 

As we shall see in the next series of posts, our forest and federal lands world of NEPA has become a piece of a much larger discussion of “permitting reform” that is being pursued by significantly more powerful political actors, and hosts of very smart policy wonks in Coastal think tanks.  Permitting reform, as framed, is much broader than NEPA; it includes all FERC, NRC and any other permitting efforts you can think of.  And yet perhaps our experience may be able to add to the discussion.

I’d like to start with a post by Aidan Mackenzie and Santi Ruiz of the Institute for Progress.

Imbedded in the document is a CEQ report..  “NEPA Litigation Surveys: 2001-2013.”  The FS seems to win the prize for most NEPA cases filed for the years I checked.  I don’t know why CEQ appears to have stopped in 2013.

Is looking at FS data when discussing an example of the ever-popular science “streetlight effect?”

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U.S. Forest Service data is not representative for clean energy

Defenders of NEPA argue that critics exaggerate review delays by relying on unrepresentative anecdotes, claiming that statistics show NEPA reviews to be far less burdensome. For example, in the Roosevelt Institute policy brief, Jamie Pleune claims to debunk the idea that “NEPA-mandated analysis is the primary source of permitting delays.”[4] She points out that the median time for the U.S. Forest Service to prepare an Environmental Impact Statement (EIS) — the most rigorous type of NEPA review — is only 2.8 years.[5] Pleune says she chose to look at the Forest Service because it is “the only agency that collects comprehensive, reliable data regarding NEPA decision-making at all levels of review.” While that may be true, it doesn’t mean the Forest Service is representative of other agencies. The White House Council on Environmental Quality surveyed review times across federal agencies in 2020, and found they take an average of 4.5 years.[6] And the Forest Service is not even the primary agency tasked with reviewing clean energy projects. In fact, out of the 90 clean energy projects that required an EIS over the last thirteen years, only two were completed by the Forest Service.[7] When we look at the agencies responsible for reviewing most energy and infrastructure projects, we see a very different picture.[8]

The U.S. Forest Service is housed within USDA, which has a below-average EIS completion time of 3.31 years. Of the federal agencies most frequently tasked with reviewing clean energy infrastructure projects,[9] only the Federal Energy Regulatory Commission has a lower average completion time than the Forest Service. The Department of Energy, along with the Bureau of Land Management at the Department of the Interior, conducts NEPA reviews for clean energy projects and takes far longer on average. Other departments tasked with reviewing important initiatives, such as congestion pricing (DOT) and nuclear energy (NRC), have some of the highest average review times.[10]

But even in the case of the Forest Service, no one should be proud of taking three years to review projects. These years-long reviews have often led to disastrous results. For example, in 1999, delays in the NEPA process for the prescribed burning of the Six Rivers National Forest resulted in the wildfire that the prescribed burning was meant to prevent from occurring. That even routine reviews take multiple years is an indictment of NEPA, not a defense.

Who decided that the denominator is even relevant to the question of whether and what the problem is? If we go back to my example of “gender discrimination only occurs at a small percentage of universities, so it’s not a problem”, we could add two- year colleges to the denominator, and gender discrimination would be an even tinier percentage .. but certainly a problem to those who experience it. Who gets to decide what is a problem worth dealing with is a function of power, not math.

2. Categorical exclusions under NEPA can be misleading

Perversely, because the NEPA procedure has expanded over the last half-century to touch nearly every federal action, defenders of the status quo can claim that major reviews (EISs) make up only a tiny fraction of all NEPA reviewsFor example, the Roosevelt Institute suggests that NEPA’s impact is exaggerated because 95% of projects receive “categorical exclusions,” or CEs, expedited reviews for projects that don’t have a significant impact on the environment. This argument has also been made by U.S. Rep. Raúl Grijalva, ranking member on the House Committee on Natural Resources. Unfortunately, this statistic misrepresents reality. In response to the administrative burden imposed by NEPA (and case law interpreting it), the number of categorical exclusions for minor actions has exploded, inflating the denominator for what counts as a “project.”

It is true that the vast majority of reviews under NEPA receive categorical exclusions and don’t go through a substantive review process. However, this is largely due to the fact that a surprisingly large set of federal actions must undergo a NEPA review, including those that have no plausible environmental impact. Although the law was originally created to force agencies to assess the environmental impact of “major federal actions,” “major” action was left undefined in the statute. In 1974, a court decision read the term “major” out of the law, effectively requiring the government to review virtually every federal action, including U.S. Treasury paying staff members, USDA conducting educational programs, or the DOE preparing internal administrative documents.[11] Categorical exclusions have proliferated in response to this reality, vastly inflating the denominator for projects.

The vast majority of CEs are for minor actions and cannot be used for major projects except in rare cases where Congress has created legislative CEs. And CEs often require agencies to file paperwork justifying why small actions should avoid years-long reviews. Although completion times for CEs are shorter than the more rigorous Environmental Assessments (EAs) or EISs, they can still create delays of up to a year.[12] While roughly 12,000 substantial environmental reviews occur each year,[13] the roughly 230,000 categorical exclusions each year[14] inflate the denominator.

And of course, litigation and litigation-prep…and what I would add to the below discussion is that it’s not just NEPA claims, it will be FLPMA/NFMA claims, ESA claims, MBTA claims and any other ones that people with lawyers who don’t want projects can use. I’d also add that the below discussion does not go into the timeframes associated with litigation, sending projects back to the agency, redoing and relitigating.. possibly because the info is not collected.  And when folks point out specific cases, it’s “anecdotal.”  It seems to me as if it will always be anecdotal if people don’t collect information on it.

Litigation risk slows down all infrastructure projects

NEPA reviews are ripe targets for litigation seeking a judicial injunction against a project. This procedural vulnerability makes suing agencies under NEPA an effective means of blocking all kinds of energy infrastructure.

Defenders of NEPA argue that litigation of NEPA decisions is relatively rare — for instance, the Roosevelt Institute points out that “only an estimated 0.22 percent of NEPA decisions are litigated.”[15] But this statistic doesn’t capture how the expectation of potential litigation shapes decision-making by federal agencies and project sponsors. And the denominator is (again) inflated by trivial categorical exclusions that are almost never challenged in court.

It makes sense that the vast majority of NEPA decisions aren’t litigated, since they’re overwhelmingly administrative CEs for things like hiring staff. If we look instead at how many lawsuits there are for every important infrastructure project,[16] the calculation changes dramatically: between a quarter and a third of Final EISs get challenged every year.[17]

The ability to sue projects derives from the Administrative Procedures Act, which allows anyone to sue an agency on the basis that it did not take a sufficiently “hard look” at a project under NEPA review. However, what counts as a “hard look” at environmental impact is entirely a matter of case law and judicial interpretation. NEPA’s mandate to “review environmental impacts” is unconstrained and undefined in statute. As a result, NEPA has been wielded as a cudgel: by NIMBYs protecting their property values, companies blocking potential competitors, and short-sighted conservationists blocking clean energy.

Successful litigation against a NEPA review puts pressure on agencies to perform longer reviews in the future. When lawsuits successfully kill a project, the rulings explicitly state that a NEPA document failed to account for some environmental impact, forcing future agency reviews to include that impact.

But just the threat of potential litigation is enough to incentivize agencies to expand their reviews.[18] To avoid potential lawsuits, agencies try to produce litigation-proof reviews that go above and beyond existing case-law standards. A 2014 GAO survey found that these documents are often a waste of agency time:

“Although the number of NEPA lawsuits is relatively small when compared with the total number of NEPA analyses, one lawsuit can affect numerous federal decisions or actions in several states, having a far-reaching impact. In addition to CEQ regulations and an agency’s own regulations, according to a 2011 CRS report, preparers of NEPA analyses and documentation may be mindful of previous judicial interpretation in an attempt to prepare a “litigation-proof” EIS. CEQ has observed that such an effort may lead to an increase in the cost and time needed to complete NEPA analyses but not necessarily to an improvement in the quality of the documents ultimately produced.”[19]

Litigation’s effect on document preparation helps explain the massive expansion of NEPA documents from a handful of pages in the early 1970s to the current average of 1,626 pages.[20]

Opponents of reform argue that NEPA is not the problem per se: instead, agencies are chronically underfunded and understaffed to perform NEPA reviews. But agencies are stretched too thin largely because the procedural requirements have ballooned. Increasing procedural requirements while holding staffing constant drives up wait times. To strengthen agency capacity, reformers need to ensure staff can use their time effectively, not spend years trying to avoid frivolouslitigation.

In the next post, we’ll discuss some of IFP’s ideas for reform.