Thanks to Matthew Koehler for this one..
FORESTS: Split appeals court orders new environmental study of Sierra Nevada plan
Lawrence Hurley, E&E reporter Published: Friday, February 3, 2012
A federal appeals court today found flaws in a U.S. Forest Service environmental review concerning a management plan for national forests in the Sierra Nevada.
The three-judge panel of the San Francisco-based 9th U.S. Circuit Court of Appeals, splitting 2-1, concluded that the service’s 2004 environmental impact statement had failed to properly analyze how a proposed forest plan would affect fish as required under the National Environmental Policy Act (NEPA).
In dissent, Judge N. Randy Smith said the majority had departed significantly from the circuit’s NEPA precedent.
The court rejected a second claim made by the Pacific Rivers Council that the government had not adequately addressed the impacts on amphibians.
The litigation focuses on an environmental impact statement that suggested changes to a 2001 plan, approved by the Clinton administration in its final weeks, that applied to the nearly 11.5 million acres of national forests in the Sierra Nevada.
The Clinton-era plan was the result of an effort during the 1990s to address certain environmental issues that had arisen, including long-term concerns about sustainability.
When President George W. Bush came into office in 2001, the Forest Service ordered a re-evaluation of the plan.
The 2004 environmental impact statement, which allowed for an increase in logging, was issued over objections from Forest Service staff, who raised questions about the effects on fish. Among other things, the new plan allowed for more construction of logging roads.
Writing for the majority, Judge William Fletcher — a Clinton appointee — said that the agency had failed to give a “hard look” at the environmental impacts on fish that is required by NEPA.
The 2001 study included a 64-page analysis of the impacts on each species of fish, Fletcher noted. In contrast, the 2004 statement “contains no analysis whatsoever of environmental consequences of the 2004 framework for individual species of fish.”
That was despite the fact that the new plan allowed for significantly more timber harvesting “much of it conducted nearer streams,” Fletcher wrote.
The court had no such problem with what Fletcher called the “extensive analysis” of amphibians.
Smith, who was appointed by Bush in 2007, accused the majority of making “fundamental errors” in its analysis by not showing enough deference to the agency and by disregarding circuit precedent stating that an agency’s NEPA analysis is not arbitrary and capricious under the Administrative Procedure Act if it is “performed before a critical commitment of resources occurs.”
The majority also failed to take into account that the 2004 analysis did not need to be as detailed as a site-specific environmental impact statement that is required for individual projects.
The ruling is an “inappropriate and substantial shift in our NEPA jurisprudence,” Smith wrote.
Holly Doremus, an environmental law professor at the University of California, Berkeley, School of Law, said that in her view, Fletcher had the better of the argument.
“I don’t think Smith has it right,” Doremus said. “As Fletcher writes, it has long been the rule that agencies must evaluate the environmental consequences of their actions when it is reasonably possible to do so.”
Click snf to read the ruling.
Note the claims are about NEPA; it might be interesting to compare the level of analysis desired in this programmatic EIS to that in the 2001 Roadless Rule EIS, based on the 10th Circuit Appeals decision on that national level programmatic EIS. If anyone wants to do that, please send what you find and I’ll post.