Here’s a link and below is an excerpt.
On Monday, the court agreed to referee the dispute pitting environmentalists with the Portland, Ore.-based Pacific Rivers Council against the U.S. Forest Service over decision-making that dates back to the second Bush administration. While the specific case involves 11 Sierra Nevada forests, the eventual outcome could shape everything from who gets to file lawsuits to the scope of future environmental studies.
“Definitely, throughout the West, this could have huge impacts on the moving of projects forward,” Dustin Van Liew, executive director of the conservative Public Lands Council in Washington, D.C., said in an interview Monday.
One key question confronting the court will be whether environmentalists have the “standing” to sue against a general forest plan, as opposed to a specific project proposal, by virtue of their making recreational use of the national forests. To gain standing in federal court, individuals must show they’ve been injured or face imminent injury.
A second major question is how extensively detailed the Forest Service must be when preparing overarching management plans, such as the one governing the 11 Sierra Nevada forests.
“The only role for a court is to insure that the agency has taken a ‘hard look’ at the environmental consequences of its proposed action,” Pacific Rivers Council’s attorneys said in a legal brief, adding that “agencies cannot take a ‘hard look’ unless they have reasonably identified the consequences of their actions.”
Underscoring the case’s potential significance, the Public Lands Council and the affiliated National Cattlemen’s Beef Association secured Supreme Court permission Monday to file a brief opposing the environmental group. Many more briefs, from both sides, are sure to come.
The court’s decision to hear the Sierra Nevada case, sometime during the 2013 term that starts in October, means that at least four of the court’s nine justices agreed to reconsider a 9th Circuit Court of Appeals decision from last year in which environmentalists prevailed.
In that 2-1 appellate court decision, the 9th Circuit panel concluded the Forest Service in 2004 failed to adequately study the effect of dramatically revised forest plans on Sierra Nevada fish populations.
“The Forest Service provided no analysis despite the fact that the 2004 (plan) allows much more logging, burning, road construction and grazing,” Judge William A. Fletcher wrote for the appellate panel.
Has anyone actually looked at what they did write about fish? Seems like if they wrote “enough” about everything else in the document they would have also written about fish “enough”.
Funny that Judge Fletcher says that the 2004 plan “allows” more burning, as if that was a bad thing.. prescribed as opposed to wildfires?
Of course, I am not a believer in hypothesized future effects of unknown projects in unknown numbers, of unknown kinds with unknown mitigation requirements in unknown locations…
“My first Sierra Nevada backpacking trip was to the Mineral King area in 2000, during which time I also fished,” Pacific Rivers Council Chairman Bob Anderson, a South Lake Tahoe resident, said in a court declaration used to establish injury and standing. “I plan to continue these activities as long as the management of Sierra Nevada national forests does not prevent me from doing so.”
Of course, forest plans require actual projects to be “management” that could have environmental impacts of the kind Mr. Anderson is concerned about.
This follows a bit of the ocean liner vs. flotillas of dinghies discussions about NEPA documents. As NEPA documents grow in size and area covered, they are increasingly functions of assumptions made about what might happen, and move further from physical reality (“might-could” NEPA). That makes them both easier, and more important, targets for litigation. The idea of humungo-NEPA makes the ultimate disposition dependent on the vagaries of random sets of judges determining what is “enough,” and or small sets of people at DOJ and for groups working to settle. The nexus of decision making moves further from the area impacted, and from those familiar with the actual land and people most impacted by the decisions. I don’t think that that’s a good thing.
Regarding the ‘no analysis’ comment … the original Sierra Nevada Framework EIS had provided a detailed analysis of effects on individual fish populations. This demonstrated that the agency believed these effects were reasonably foreseeable and could be estimated. The amended Framework EIS provided a comparatively generic analysis of likely greater effects, but without any rationale for why they couldn’t do the same level of analysis they had done before. Hoisted by their own petards perhaps.
As to whether NEPA required this? I understand that the NEPA-keepers (CEQ) have said forest plans trigger NEPA (the FS lost that argument). I think the FS has generally gotten some deference from the courts on how much NEPA is enough for a forest plan, but it’s harder to argue that you don’t have to do something that you already did.
This case is also not about the adoption of a forest plan. It is about the removal of environmentally protective measures from a plan. This is the same issue that sank the 05/08 planning rules in the Citizens for Better Forestry cases and arguably has more solid NEPA foundations.
I think the key NEPA requirement is to evaluate effects when they can be ‘meaningfully evaluated’ (40 CFR 1508.23). I agree that too many assumptions could make an evaluation meaningless. On the other hand, I think cumulative effects are difficult to analyze in a meaningful way through project-by-project decision-making, and there needs to be some attempt to look at these at a strategic level (under both NEPA and ESA). Forest plans are the obvious place to do that.
As always, Sharon – well said. The current judicial final say is about as far removed as possible from “the best available science”. One person makes a judgement that an agency has/has not taken a “hard look” (whatever that is) at one small portion of a huge array of issues and then decides that a “harder look” is necessary to protect fish (or whatever). On appeal, 3 people make a judgement on what “hard” is. Now we’ve going to have 9 people make the judgement. Does anyone else see how nonsensical all this is?
Jon- I am just saying that projecting the impacts of all the stuff in plans is anyone’s best guess, plus with projecting unknown future conditions. As in “Climate change will cause “unprecedented” change; wildfires will be “unprecedented”. some fish could get listed that aren’t now, etc. etc.
Perhaps the agency believed that the effects of an unknown number of unknown projects, with unknown requirements in unknown areas were “reasonably foreseeable.” I still don’t.
We had a bit of the discussion on this blog before… one place was here.
http://ncfp.wordpress.com/2010/02/15/article-why-dont-we-want-eiss-with-forest-plans/
But I don’t understand the logic either.. if one grazing allotment EA analyzed the genetic diversity of gnats, does that mean any changes to that same allotment would have to analyze it.
As to analyzing cumulative effects on a project by project basis, that the time when you have the best idea of what happened in the past and what is likely to happen in the future. I agree that you do need to take a broader look for some things, but not sure that that needs to be through “analyzing environmental effects” of the unpredictable. It could be through assessing what is currently there and describing some scenarios and a possible variety of outcomes.
http://ncfp.wordpress.com/2011/05/20/how-to-do-assessments-under-the-proposed-forest-service-planning-rule-part-3-scenario-planning/
I think if you asked most people they would agree that a more adaptive approach would be better, and then disagree as to whether that needs to be within “legal accountability” or not to be successful.
You might also be interested in Andy’s KISS proposal for NFMA planning.
http://ncfp.wordpress.com/2009/12/31/k-i-s-s/
As to CEQ saying plans trigger NEPA, they did agree at one time that a CE could be used, which of course is still NEPA . Now, I agree that you gotta do them for forest plans, however silly and useless the results, and how few people read them.
If it were up to me we would have an open on line discussion of different scenarios, with all the scientific information and assumptions open to public review. I think if we did that, it would be more obvious that we would realize that any conclusions about the future are open to a widely differing array of assumptions, with no way to test whose assumptions are more valid.
We could then pick a path forward and analyze effects cumulatively as we proceeded down that path with the most up to date info about what happened in the past and the expected future.
Sharon – You said NEPA is a “best guess.” I think that pretty much captures it. I’ve never understood why it has to be so hard. (“Best” comes with a few rules via CEQ and APA but they are pretty ‘commonsense’ – to use the current political vernacular that means ‘if you disagree with me you are an idiot.’)
I have never bought the idea that the effects of plans are the effects of 15 years of hypothetical projects. It sounds like there is still some residual FORPLAN hangover that equates modeled projections to decisions.
I think it would help to focus on the nature of the actual forest plan decisions – now plan components. In particular, what are the effects of the desired conditions (intended outcome), and standards (prohibited actions/outcomes)? And to distinguish these decisions from assumptions (about what management actions might be used to get us to and maintain desired conditions, and about external factors like climate disruption scenarios). And then monitor the assumptions that were most important to the decisions.
I’m not convinced that forest plan NEPA impedes adaptive management. Adaptive implementation of the plan can be based on changing assumptions (we can change assumptions without changing plan decisions). In those cases where, based on new assumptions, the plan components are so wrong that following the plan will produce unacceptably different results than originally assumed, the plan can be amended (maybe even with a CE).
Jon, thanks for your thoughtful comments..let’s take up this question of actual forest plan components when I return from vacation.
New Acronym Alert!! BADS now stands for “Best Agenda-Driven Science”!
This court case will decide whether we have to endure a “trainwreck”, despite not having project erosion issues over the whole of the Sierra Nevada, under the amended Framework. The standing thing feels to me like a distraction and hope that eco-folks can be excluded. I really hope that “standing” could be like a “right”, to use and enjoy our forests, without excessively impacting others’ rights to use it in similar ways.
For example, here in California, they have outlawed small-scale dredging for gold. However, some companies would be allowed to dredge for gold, under the guise of river and reservoir “restoration”, while pocketing the gold along the way. A large contingent of recreational prospectors are mobilizing to block those kinds of projects if they aren’t allowed to do their own recreational “dredging”. Some of these folks are becoming quite militant about it, seeking to force the issue at possible great expense. I went to a prospector’s meetup group and the conservative vibe is VERY strong there. It was a little bit uncomfortable, for me.