Article: Why Don’t We Want EISs with Forest Plans?


No EISs for Forest Plans?  At the time a revised planning rule was released in 2005, and then 2008, NEPA compliance was among the most criticized piece of those rules.  The preamble to the 2008 rule explained the reasoning that this provision was included (p. 21473):

Throughout 28 years of land management planning, the Agency has learned that tiering to the cumulative effects analysis in a plan EIS did not provide nearly as much useful information at the project or activity level as the Agency had expected. The effects analyses in plan EISs were often too general to meet analytical needs for projects and activities. Meaningful cumulative effects analyses cannot be conducted until project design and location are known or at least reasonably foreseeable. Plan-level analysis would, however, evaluate existing conditions and broad trends at the geographic scale of the planning area. The Department believes these rules provide for the development and consideration of planning alternatives with much more robust public participation than previously afforded.

What’s the problem?

Tulane law professor Oliver Houck wrote an opinion piece last year in the Environmental Law Institute’s Environmental Law Reporter entitled “How’d We Get Divorced?: The Curious Case of NEPA and Planning.” 39 ELR 10645, July 2009

Houck explains that the framers of NEPA back in 1968 were concerned that the environmental crisis stemmed from poor planning, which NEPA was to address, and that the Forest Service (along with the Federal Highway Administration) was front and center as an agency most in need of the NEPA remedy.  However, he explains that over time courts have allowed agencies to not only divorce NEPA from planning, but to relegate it to what he calls the latest, smallest, and most foreordained step in the process.

As early as 1991, Houck was advising CEQ to strengthen the link between broad planning and NEPA:

“NEPA is missing the point.  It is producing lots of little statements on highway segments, timber sales, and other foregone conclusions; it isn’t even present, much less effective, when the major decisions on a national energy policy and a national transportation policy are made.  On the most pivotal development questions of our time, NEPA comes in late in the fourth quarter, in time to help tidy up … As I see it, CEQ’s challenge is not, per your invitation, to make NEPA a “succinct review for a single project.”  It is rather to make NEPA work for legislative proposals and for programs that all but conclusively determine what the subsequent projects will be.”

Houck explains that some agencies like the Park Service and DOE have applied NEPA conscientiously to planning decisions.  He says the BLM has waxed and waned on the issue, applying NEPA to range management plans but trying to avoid NEPA altogether for oil and gas leasing.

Regarding the Forest Service, Houck rejects the agency’s traditional arguments about NEPA and forest planning.  As far as flexibility, he says there is no reason that an EIS cannot be written on a flexible plan.  As far as saving time during the planning process, he says that the Forest Service is actually saving more time in the long run with the availability of “tiering”. 

He concludes that the real reason that agencies don’t want to do EISs are human reasons.  On big decisions, NEPA puts other people’s noses in their business.   Other people ask embarrassing questions, propose unwanted alternatives, go to the press, make things difficult, even change outcomes.  For employees that have been educated to manage the forest in a certain way, they naturally wouldn’t want to let outsiders in to simply challenge what they are doing.   He concludes:

NEPA is so difficult because its few demands are so counterintuitive, so contrary to normal human behavior: think long term, reveal your defects, expose your risks, consider other ways of doing things than the one you have in mind, let others in on these considerations, which after all are your responsibility, not theirs, and about which you may (but less often than you think) know more than they do, and then actually agree that another way is better.  These are a very hard ask.  For all of these reasons, attaching NEPA to planning, the heart of all decisionmaking, remains as stiff a challenge today as it was in 1969. When this very idea gave rise to a process that is so magnificent in its ambition and so unfulfilled.”

Are these criticisms correct?

16 thoughts on “Article: Why Don’t We Want EISs with Forest Plans?”

  1. I think Houck makes some useful points. We must also remember that Houck is not the first to understand the beauty and benefits of “tiering” when addressing NEPA compliance. In the very early years of forest planning, USDA Attorney Peter Hapke made a similar argument. But forest managers were loathe to hear his message, and weren’t much better up to the 2005 rule update (the FS just switched from one unreasonable position to an opposite unreasonable position).

    The mindset of the early forest planning was “once and forever” NEPA compliance. That is, if you spend all the time and effort to develop a forest plan it ought to be sufficient for NEPA for the 10 to 15 year period of the plan—to cover ALL from plan to project. Of course, that didn’t work out. So the Forest Service then sought “NEPA avoidance” by attempting to shed NEPA from the plan itself and attach it to all the little projects — turning a blind eye to “connected actions”and “cumulative effects.”

    For interested observers, here is a Forest Policy-Practice post from 2005 where we hashed out some of this during yet-another “NFMA rule” development. I mentioned Hapke’s paper at the end of the comment threads (April 17, 2005). Hapke’s 1985 paper, subtitled “Ninth Circuit Breathes New Life into CEQ’s Cumulative and Connected Actions regulations, is cited here at note 43.

    This from Houck I really like:

    NEPA is so difficult because its few demands are so counterintuitive, so contrary to normal human behavior: think long term, reveal your defects, expose your risks, consider other ways of doing things than the one you have in mind, let others in on these considerations, which after all are your responsibility, not theirs, and about which you may (but less often than you think) know more than they do, and then actually agree that another way is better.

    PS.. I can’t get free access to Houck’s article, hence am relying here on John’s assessment. Here is another article of interest that is available: Whither NEPA? by Bradley C. Karkkainen, 2004 [pdf]. Karkkainen’s suggested approach to better NEPA compliance involves “adaptive management” and better monitoring, much like I am proposing on this blog. See, e.g., here.

    See also NEPA is Not the Problem, Forest Policy-Practice, 10/31/2007

  2. I agree. As stated in my NOI comments filed today (sorry this is so long):

    With all of the above in mind, it is still possible to find a way to make plan EIS development less onerous and time-consuming for the Forest Service. For far too long, the agency has seen NEPA as an impediment, as an obstacle, to management. In reality, when done through an open and collaborative process of cooperative conservation, NEPA is no longer a hurdle but a doorway to better process, better decisions and better on-the-ground management.

    A prime example is the largest project in USFS history—the Hurricane Katrina Salvage Project on the De Soto and Bienville National Forests in Mississippi (490,000,000 board feet harvested). Using the collaborative process in the Healthy Forests Restoration Act (HFRA), the Forest Service worked cooperatively with scientists, loggers and all interested parties to craft a proposal to the massive and widespread damage caused by Katrina. Instead of coming up with its own solution, in house and in isolation, the agency openly worked with other people FIRST to examine the problems involved and work on the solutions to address them through consensus. When scientists showed that hardwood bottoms should not be salvaged, the agency agreed not to salvage hardwood bottoms. When everyone came to a consensus that most of the downed timber was not a problem and should be left on the ground for ecosystem health reasons, the agency agreed with that and left more than 75% of the down timber alone.

    That consensus led to several remarkable things. Reducing NEPA work to what was agreed upon allowed the staff to do more up-front field work prior to the decision. This resulted in the largest Gopher Tortoise (a threatened species) survey ever in history anywhere (almost 3,900 new burrows were discovered and mapped) and the largest Louisiana Quillwort (an endangered species) survey ever done. The Quillwort survey found 22 new colonies, some very large, thus providing enough data to even consider uplisting the plant to threatened. That better fieldwork led to better data for the NEPA analysis and resulted in the NEPA analysis being completed in just a few months. That better data and better NEPA analysis led to better mitigation and monitoring after the decision. Lastly, the decision received no objections and was not litigated.

    Once implemented, logging across more than 450,000 acres was accomplished with a remarkably high rate of success. No rutting of soils more than six inches deep occurred anywhere; in many places, no rutting occurred at all. Out of all those thousands of previously known and newly discovered Gopher Tortoise burrows that were mapped, only one was damaged during nearly a year of logging under this project. And the tortoise in that burrow was promptly dug out and rescued.

    Coming to a consensus proposal allowed the agency to focus on what needed to be done and how best to do it. Imagine, logging nearly half-a-billion board feet of timber on nearly half-a-million acres, and NOT ONE listed threatened or endangered species was accidentally killed during that year-long operation. No significant adverse impacts of any kind were seen. That is the type of success that can occur from collaborative, cooperative conservation work that sees NEPA as an opportunity for success instead of as a burden to be gotten around. This new planning rule should institutionalize such positive views of NEPA and this type of success will become the rule for the agency.

    Cooperative conservation and open collaboration with all interested parties to DEVELOP proposals lead to a situation where: (1) NEPA analysis can be focused on one highly-relevant alternative, instead of creating other alternatives just to make comparisons, (2) limited staff time and resources can be more focused on field work (botanical and biological surveys, NHPA surveys, etc.) instead of wasted in a cubicle doing NEPA paperwork “analysis” that is not needed, (3) the NEPA analysis is better, more supported with site-specific data, and clearer, all while being shorter and easier to produce, and (4) the post-decision work is also more focused, informed and monitored, leading to better work on the ground.

    Changes in NEPA analysis in this rule should be guided by these goals. Instead of trying to reduce NEPA work just because the agency does not like NEPA work, this rule should embrace the true purpose of NEPA and make planning a process that seeks the best for the land. In that way, NEPA work will be made less burdensome and shorter in time to prepare, not because such administrative efficiencies were the goal but because they were the byproducts of a better view toward management.

  3. During the Bush II years, the Forest Service’s in-house lawyers (Office of General Counsel) and some of its Ecosystem Management Coordination staff (you know who you are) pushed strongly an anti-NEPA agenda. The lynchpin of their strategy was to remove all decisions from forest plans. Without decisions, they reasoned, there would be nothing for an EIS to analyze. Even better, forest plans would not be ripe for legal challenge.

    But these were just tactical objectives along the way to a larger goal. That was to make sure the northern spotted owl/old-growth forest revolution (and its regional cousins throughout much of the national forest system) could be undone (or, at worst, never be repeated).

    The spotted owl legal strategy rested on the fact that, in 1984, the Forest Service made a range-wide decision to protect 5% of the spotted owl’s old-growth forest habitat. That decision set in motion a cascade of litigation/agency response that ultimately protected about 8 million acres of timberland, reducing logging levels by 90%. All of the litigation success enjoyed by environmental plaintiffs rested on inadequacies in the FS’s forest plan EISs.

    Remove the EIS from forest plans and you take away the leverage environmental interests used to reform national forest management. NEPA may only be “procedural,” but the stakes in this arcane policy issue could not be any bigger.

  4. There are a great many interesting observations here. At the risk of being called some kind of Sith priestess, I remember that the people involved in the 05 Rule had many of the same perceptions as people on this blog. I can only speak for myself as there were many people involved and we didn’t always agree with each other, but I don’t consider myself anti-NEPA. I consider myself pro-useful NEPA and against unnecessary analysis that keeps us from doing other activities (e.g., Protect, Reconnect, Restore) on the land.

    I like NEPA, but can results really be meaningfully evaluated if you don’t know what you are going to do, where you are going to do it, when you will do it, nor how you will do it? It seemed to me that “just in time” NEPA where you know more about the conditions and what you are trying to do makes more sense, like the example Ray has above.

    Now Dave says that means “turning a blind eye to “connected actions”and “cumulative effects.”” I would argue that those are both required regardless of the scope of the decision. Let’s take the Salvage Project above- do you suppose they looked at connected actions and cumulative effects? Were those analyses perhaps more up-to-date and useful to the decision at hand than the analysis in the forest plan?

    Ray also says above that NEPA should be focused on “one highly-relevant alternative, instead of creating other alternatives just to make comparisons.”

    It seems to me that good cumulative effects analysis for good NEPA requires current knowledge of climate changes, requirements for species, technology to be used for restoration etc. etc.

    So we are really not so far apart about this as you might think. It’s all about what’s NEPA that’s useful, meaningful (in the sense of as accurate as possible) and practical.

    • Sharon,

      I’ll refrain from making any Sith Priestess remarks (like some Sith-like quest for intergalactic power, or better yet administrative discretion)—nor do I see myself as some NEPA Jedi Warrior


      This all ties in nicely to our previous discussions about adaptive management and forest planning.

      I think the mistake that was made in 05/08 was to simultaneously deep six NEPA (at plan level) while forwarding some ill-defined adaptive management/EMS framework. Maybe this go-round we can focus on how to do adaptive planning within the important NEPA framework. That makes the conversation less scary for a lot of folks. NEPA, after all, requires forward looking environmental analysis—should we go forward with program X or project Y and what are the alternatives and possible consequences to that course of action.

      Once that decision is informed (even though imperfectly) though NEPA analysis, then mid-course corrections/adaptation/monitoring/etc. becomes the method used. And why can’t an agency possibly study a range of adaptive management actions in an EIS/EA?

      Seems to me like a lot of synergies between NEPA, collaboration, and adaptive management. I want it all (e.g., Forest Planning Episode IV: The New Hope)

  5. In my view, there was a lot of upfront analysis in 05 plans; in fact in some I would argue there was still too much upfront analysis. It would be interesting to take a couple of draft 05 plans and their comprehensive evaluation reports and see more specifically what desirable forward-looking analyses were missing. Or is the idea that analysis not in an EIS doesn’t really count?

    Setting aside for the moment the question we touch on from time to time on this blog “do forest plans do anything useful?”- and assuming we use the same container (forest plan) for the same content (objectives, goals, suitability and standards), what is the important predecisional analysis work that needs to be done?

    CEQ wrote this on programmatic NEPA and adaptive management in Chapter 3 of their 2003 Modernizing Implementation of NEPA report:
    “3.5. Links to Adaptive Management and Environmental
    Management Systems
    Adaptive management is in an early stage of application in programmatic NEPA analyses. The “predict, mitigate, implement, monitor, and adapt” model of adaptive management is rarely fully incorporated at the programmatic NEPA level. When adaptive management is being used at the programmatic level, it assumes varied applications. Several agencies use the programmatic analysis to “predict, mitigate and implement,” and then they use research and monitoring to better understand ecosystem functions and linkages and adapt their actions and mitigation measures.
    These subsequent adaptive actions are modified or adapted based on the information gathered, and they typically require NEPA analysis and documentation. The task force agrees with many commentators who believe that adaptive management principles have great potential for programmatic NEPA analyses. Although the Adaptive Management and Monitoring chapter of this report does not distinguish programmatic from other NEPA analyses, the discussion is applicable to all programmatic analyses.
    Additionally, the broad approach of some programmatic NEPA reviews and the holistic systems approach of environmental management systems are similar (e.g., facility based reviews with a potential application of environmental management systems to land management facilities). Both environmental management systems and NEPA processes involve a review of activities to identify those with potentially significant environmental impacts and to implement measures to avoid, minimize, or eliminate the causes of adverse environmental impacts. Because of these and other similarities, the integration of environmental management systems and NEPA processes seems logical (see the Adaptive Management and Monitoring chapter of this report).”

    So, what analysis is important at the programmatic level (that wasn’t done for 05 plans)?
    If an adaptive governance groups is monitoring and adapting, what does it add to that to “be within the NEPA framework?”. Why would that approach be preferable to a programmatic plus treating proposed actions under NEPA?

    Martin- to some people, getting lawyers and judges involved in adaptive management is also pretty scary ;).

    The problem I see with hardwiring contingencies into NEPA is that we never know the problems or the best solutions in advance. For example, hurricanes. Or reintroductions of species. Or big fires. Or new invasive species. Or bark beetles. Or how much funding we’ll get.. and so on. So spending all that energy thinking up contingencies and responses at year 0 may be wasteful, plus assumes an idea of what to do in the future with a threshold will be a better idea than what the adaptive governance people can come up with- despite having more knowledge and experience if they waited to decide until year 3 (and still did NEPA on what they decide).

    If it’s really about the accountability of the adaptive governance group and/or the FS to specific outcomes, beyond following environmental laws, that’s something we ought to discuss the whys and wherefores of in greater detail.

  6. All good points Sharon. I understand where you are coming from. I recognize from the outset the problems of trying to work in triggers/thresholds, especially within a forest plan. Perhaps better suited for other types of NEPA endeavors, like oil and gas and wildlife management, grazing, etc.

    Another big issue in all of this is what will trigger the supplemental EIS requirement—how far can an agency go in making mid-course adaptive management corrections without tripping the SEIS wire? Perhaps another post?

    And something to think about: the adaptive management framework makes perfect sense given all the uncertainty out there and the futility of rational comprehensive planning. On the other hand, we have lots of groups all over the West that are terribly frustrated with NF management and planning and want MORE certainty and predictability—the type of which cannot be offered through adaptive management. Lots of groups seeking place-based forest laws or agreements with the USFS want final resolution to long-standing issues. They want more certainty—from motorized recreation access, wilderness designation, to a more predictable stream of timber. So here we have a case where planners/scientists/etc. want more adaptation and discretion because of inherent uncertainties—and the public wants more certainty to forest management and are willing to go to Congress to get it.

    And one more point: as for possible cases from which to study and learn—how about a posting from you or someone on the RACNAC to talk about the Idaho Roadless Rule? A fascinating case getting into the container/content issues—a process that was collaborative, meaningful, determinative, and done within the NEPA framework. Though not a traditional forest plan, the Idaho roadless rule has some commonalities, like zoning particular areas for primitive or backcountry use. And does that rule contain anything about adaptive management?

  7. Martin says, “planners/scientists/etc. want more adaptation and discretion because of inherent uncertainties—and the public wants more certainty to forest management and are willing to go to Congress to get it.”

    I seem to remember Dick Behan’s dissertation, wherein he distinguished between “the public” and public interest groups. Yes, it was titled: “Why the Majority is Silent: Some Points to Ponder While Waiting for the Sierra Club to Arrive.”

    Behan’s main point, as I recall, is that it proves too easy for government agents to claim they have discovered wide public agreement (from the silent majority) when all they’ve conjured up is renewed justification for their own pet schemes.

    Finding collaborators to represent “wider perspectives” proves problematic as well. Even elected representatives prove easily corrupted. Look at the “bought and paid for” problem with elected legislatures. So we, each of us, deal with the selfish pleadings of special interests as they arise and try to do the best we can. No easy answers.

  8. I am delighted that my article contributes to this dialogue. I wanted to add a hesitation about ADM, which I do not think solves the problem. Besides allowing the consideration of critical impacts to be punted down the line, it also has in practice proven very difficult to pull the triggers for more protective adaptations, no matter how clearly spelled out, once the train has started to roll. Several good commentators on this in the ESA HCP context. Keep on trucking, all of you.

  9. In response to Sharon’s line of reasoning, “The problem I see with hardwiring contingencies into NEPA is that we never know the problems or the best solutions in advance. For example, hurricanes. Or reintroductions of species. Or big fires….” This is true only in that contingencies and/or the plan actions are “hard wired.” What if they are soft wired? Here is what I mean. None of the things you put forth are, in fact, unknowable in advance. For example, of course we know a hurricane will hit the DeSoto National Forest. The only unknowns are when and how bad. What if that forest had a plan that was not hard wired, but soft wired, like this: “Our vision for the DeSoto is to restore its natural Longleaf Pine forests to as many of the conditions, elements and processes that we can put back to make its form and its functions as natural and complete as possible. Our timeline is 100 years for restoration and infinite for the preservation, conservation and maintenance of what gets restored. What would such a forest look like? What do we have to do to take current conditions to what it should look like? What variables can happen in time and conditions that will slow down or accelerate or otherwise impact that restoration work? Etc.”

    While the DeSoto has no formal NFMA plan like that, they DID develop an informal plan exactly like that through “program” work (i.e., LARGE restoration projects, landscape scale), with full and collaborative input from everyone who knows and cares about that forest. They had NEPA for it. And the formal NFMA plan is in progress, incorporating all of the informal plan.

    What happened when the inevitable hurricane did hit? While they could not know the when and how bad, they did know the inevitability of it and the general consequences. That was built into the plan, because the plan was to restore an ecosystem that involved hurricanes. So, when Katrina arrived, instead of responding hastily and blindly to a sudden “salvage” need, they saw the hurricane’s impacts in terms of how did it fit within their restoration plan. What did it change in terms of goals? Nothing. In terms of methods? Nothing. In terms of where restoration was needed? Nothing. All Katrina changed was the “when” work was needed. The new NEPA work needed for the 500,000,000 board feet of “salvage” over 450,000 acres tiered to the NEPA already done for the long-term restoration vision. Took two months. And this was not the first time. The Conecuh was ready for Ivan when it hit; same thing, they had a forest-wide restoration plan. The unknowable hurricane only changed the “when” of what they had alreaady planned to do.

    I see no reason why such planning ahead through a cooperative vision for what the forest should look like in the future will not work on the slightly larger scale of planning for the whole set of activities on the forest. If you can do it for all the veg management on the entire forest for 100 years, how much harder will it be to add the oil and gas, grazing, recreation, etc., using the same visioning and collaborative techniques? I submit, much easier than the traditional way of planning done until now. Sure, a comet strike or something REALLY unknowable would be a bigger deal, but really, the bad things that could interrupt good plans are 99% knowable in their general impacts. Figuring out how a bad event would fit into a restoration plan is completely doable in a NEPA. It does not have to be super detailed, just enough to make it clear to decision maker and public that (1) you know what you need to do under ordinary circumstances to achieve the Plan’s vision, (2) you know what the changes might be generally from a foreseeable potential event or new set of circumstances that would impact the vision, and (3) you have a general plan for responding to the event or new circumstances to keep the forest on track for the vision. NEPA at the planning stage requires no more than that general coverage.

    That is how NEPA analysis in planning fits with adaptive management in the execution of the plan. Thanks.

    • Ray,

      Seems like the collaborative process or buy-in to the plan/vision is central, in your comments here and in your NOI response. Have any groups outside this process asked for subsequent supplemental EISs or project-level EISs? Isn’t it quite possible that some groups will demand more site-specific NEPA work in other places that are planning for landscape-scale restoration? Is collaboration the way to deal with that potential NEPA litigation threat?

  10. Martin,

    In the Karkkainen article [pdf] I mentioned above (comment #1), you’ll find insight into the NEPA “litigation threat” conundrum. Here’s a bit from a section Karkkainen titles “A Smarter NEPA?”

    [B]ecause ecological processes are complex and typically less than fully understood, such predictions are often highly uncertain, as are expectations concerning the effectiveness of mitigation measures that might be included in the project. Yet no follow-up monitoring or verification of the accuracy of pre-project predictions is required once the project is in place. … NEPA thus assumes an unattainable level of clairvoyance at the pre-project stage, and naively relies on the uncertain information thus generated. My first proposal is simply that we require follow-up monitoring to verify the accuracy of any predictions we can identify at the pre-project analytical stage as resting on uncertain foundations. …

    Second, in recognition of the uncertainty embedded in the NEPA analytical process, I have urged the creation of a new category of NEPA disposition, which I have dubbed the “Contingent FONSI.” … To the extent that an agency’s FONSI rests on uncertain predictions about the environmental impacts of the proposed action or the effectiveness of included mitigation measures, we should treat that finding as contingent, pending subsequent verification or reversal on the basis of post-project monitoring. …

    My third NEPA reform proposal, which I call “Adaptive Mitigation,” …. Under Adaptive Mitigation, agencies would be authorized and encouraged to design more responsive mitigation plans that provide for a range of alternative mitigation measures and subsequent upward or downward adjustments in the scale and intensity of mitigation efforts, to be triggered in response to information produced by follow-up monitoring. This flexible approach to mitigation should have better prospects of success than fixed mitigation measures and, where appropriate, could provide an important part of the justification for a FONSI.

  11. Dave – could you draw the line more clearly between the Karkkainen paper and the litigation threat? I think I know what you mean but am not sure. Thanks.

  12. The idea is simple: Set up a NEPA disclosure process wherein decision makers own up to the uncertainty inherent in decision-making. Couple decisions flowing from that process to a monitoring/evaluation process to either prove-up on postulated “effects” or shed doubt on the effects. Where “tiering” is used effectively, and/or where similar or connected actions are involved there should be at least some safeguards that policies ought not go too far astray re: monitoring/evaluation relative to decisions.

    This is simply the stuff of auditing the decision process, thereby avoiding one of the common decision traps.

    The link to “litigation threats” is that if the CEQ “contingent FONSI” (etc.) process is adequately vetted in advance, would-be litigants should be fewer in number. And those who choose to litigate anyway, will have a higher bar to jump over in litigation.

    At least that’s what I think Karkkainen is getting at re: the “Contingent FONSI/Smarter NEPA” stuff.

    PS.. I don’t even know if I really like Karkkainen’s “Contingent FONSI, etc.” ideas. Sometimes I think I do, sometimes I think it will just give the FS a too-easy-way-out re: NEPA challenge.


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