There’s an interesting observation in this opinion piece about the process for amending the Allegheny forest plan to allow construction of the Atlantic Coast Pipeline. It required replacing standards in the forest plan for this “project” – here’s one of them:
“Standard SW06: Severe rutting resulting from management activities shall be confined to less than 5 percent of an activity area with the exception of the construction of Atlantic Coast Pipeline, where the applicable mitigation measures identified in the COM (Construction Operations & Maintenance) Plan and SUP (Special Use Permit) must be implemented.”
The problem this author points out is that the COM was written by the permittee and it wasn’t written when the public NEPA process was going on. The result was the Forest essentially writing a blank check for plan components that the Forest did not evaluate the effects of and the public did not get a chance to comment on. I think there’s some (legal) problems here.
This story got my attention because I’ve been looking at a lot of plan components being proposed for forest plans being revised under the 2012 Planning Rule. One common theme is to not make any commitments in a forest plan, often using language that says essentially, “we’ll figure it out later,” often project-by-project. It’s kind of hard to evaluate the effects of that forest plan decision. Sometimes it’s kind of like this example – where the forest plan defers to someone else, for example the states to tell them how to manage for wildlife. But there’s an even bigger problem when there are legal requirements that a forest plan must meet, particularly those related to plant and animal diversity. A plan component that writes a blank check for a future decision does not demonstrate legal compliance.
24 thoughts on “What if forest plans were a blank check?”
While I am not familiar with this particular pipeline, the one pipeline project that I did work on had the equivalent of a COM written by the Forest Service and BLM and widely reviewed by the FS and the BLM. And there was also a plan amendment for detrimental soil disturbance. The other thing is that most of the pipelines that I am familiar with set up a “mitigation fund” to pay for environmental remediation, and the COM or its equivalent spells out what that will be. The sad part is that while there is a lot of interest in these pipelines before they are built – with a lot of rightful attention paid to environmental considerations/BMPs and remediation, there is little to no attention paid to the fact that these pipelines have a relatively short useful life, and after 20-30 years they are abandoned and the processes that are used to maintain the pipe integrity are abandoned, and there are numerous cases of abandoned pipes rotting out and causing all kinds of drainage problems. Yet no one want to talk about what will happen once the pipeline is abandoned during the planning stage. And after 20-30 years of ground recovery, it often doesn’t seem very reasonable to require the pipe to be dug up, either. But I think there is some middle ground there where the risk of pipe erosion on the enviroment is very high and removal should be considered.
I agree with you MofT, with the pipeline I worked on peripherally also with much review by the FS and BLM, it also was much upfront drama appeals and litigation (including a settlement that gave $ to the State to study wildlife impacts), but once the litigation drama was over it seemed like there was not followup by external groups.
But you can say that about almost any kind of project. I think it would be great if 5 years after the litigated project everyone from the different sides got together and jointly reviewed it with suggestions for followup and the next project. It seems like you could have a great learning experience without the threat of litigation hanging over your head. Ah.. remember the plan-do-check-act cycle? So hard to accomplish in practice.
The removal question is a hard one because you have all the environmental impacts of vehicles and digging. That would be a great thing for research engineering folks to work on.. how to easily remove pipelines with minimal disturbance.
There is no exception in NEPA that allows an agency to ignore the effects of “what will happen once the pipeline is abandoned,” or the effects of removal.
And it looks like we’ll see this story soon in a “Weekly Litigation Summary. “https://augustafreepress.com/conservation-groups-file-challenge-national-forest-service-decision-atlantic-coast-pipeline/
Jon.. forest plans analyze “might coulds” but my experience is that there is so long between plans such that analysis is out of date before a project is proposed. If you use the forest plan standard and plan a project and litigation-oriented environmental groups (LOEGs) don’t like the project, they will argue that projects using the plan standards aren’t using the best available current science. So you have to do the work of figuring out the right standards twice, once in real time and once in the plan. I can understand why people don’t want to do the same work twice. You could even see this as a logical co- evolution of people experienced with plans and projects.
In fact, I’m not sure that it makes sense to have a standard that applies to “management activities”. “Severe rutting,” however it’s defined.. is a different kettle of fish in a thinning project, a bike trail or a powerline.
Kind of hard? Try, impossible. Or maybe not. If no decision is made in a forest plan, then there can be no effects by definition. But making no decisions in a programmatic plan leaves open a long-standing problem: NEPA still requires, I suspect, that agencies evaluate “connected actions” and “cumulative impacts” except where categorically or specifically excluded. So how does one get this done?
Years ago a USDA OGC attorney named Peter Hapke suggested that the Forest Service needed at least one level of NEPA evaluation tiered from a forest plan, and sitting above project-level evaluation. And that was before the agency talked much about ecology in planning. Still, the Forest Service pretty much hated the idea. At that time, the agency was hell-bent on making forest plans NEPA sufficient so they could get projects pushed out the door without any site specific NEPA evaluation. Of course that didn’t work.
I used to call this “Once and for all Planning.” Do the plan once at the forest level, and you could get your “get out of NEPA free” card. This contrasted to my later ideal, which might be called “Once and forever assessment and decision-making,” or adaptive management recast as adaptive governance. In my ideal we (often not just the forest service) would evaluate policy, projects, standards and more at appropriate scales and to contain them in a forest level information system—an information system linked to scales above, below, and across forest administrative boundaries. Administrators would make decisions at scales where decisions make sense, with appropriate others, and deal with legal compliance issues along the path. The information system is pretty much the forest plan. A once and forever endeavor.
Here is how I argued the point in 2011:
Getting back to standards, I learned from another OGC attorney that embedding standard-setting into a comprehensive forest plan, was likely a fools errand, if only because of the sheer volume of NEPA work to cast up, then evaluate alternative standards alongside everything else being considered in a comprehensive rational planning exercise. But I also learned from him that “every rule is delimited by its exceptions.” That makes me wonder whether the standards in question here may have been rightfully categorically allowed as an an exception to normal forest plan standards. Anybody know?
So many issues. So many problems. So little time!
Here is a correct link to my 2011 argument, referenced above: https://forestpolicypub.com/2011/03/24/from-forest-planning-to-adaptive-governance/
I have recently, and in the past, advocated for scenario planning. Yet such is absent in what I wrote above. I believe that adaptive management can live without scenario planning. But I also believe that scenario planning can be useful in adaptive management and governance. Still, I would not advocate for such at the forest administrative unit. Instead I see it most useful for, say, the Columbia River Basin, for the Greater Yellowstone Ecosystem, or better still Yellowstone to Yukon, and so on. If we are to engage the public in protecting and enhancing their land, let’s swing for the fences. Hell, if the Trumpites (and/or the Republicans) get their way there won’t even be public lands. So why not grandstand what Wallace Stegner should have identified as America’s greatest treasure: Our Public Lands
The underlying problem really is how to have adaptive management for a 15-30 year plan. The legal answer is that you amend the plan when it needs to be changed (according to 36 CFR §219.5, the “planning framework”). Since there is a great fear of amending plans (they think too much time and money), the Forests try to figure out how to avoid that. There are NEPA analysis problems with open-ended decisions that I think have been recognized, but not solved.
But my point is mostly about NFMA obligations for forest plans to actually decide some things. In particular they have to provide conditions on the land that maintain at-risk species. The expectation is that we will develop a strategy for long-term species persistence and follow it, and the Planning Rule does not allow an approach of doing something and monitoring to see if it works.
The most common gripe seems to be “one-size-fits-all” standards (that are also fixed in time and science). What this means is that they will be inadequate in some places (and new information about effects may require being more restrictive, which can be done without amending the plan), or they may be unnecessarily restrictive (and a plan amendment would be required to proceed). This ends up being biased towards at-risk species, which is consistent with the precautionary principle. Flexibility can be built into standards by including properly analyzed exceptions.
Then there’s the argument that this prevents actions with short-term adverse effects that are needed to achieve long-term benefits. If a Forest can prove at the plan level that a species will be better off without standards, then all is good. I hear that a lot; I just haven’t seen it yet.
Dave- Where did the Trump Administration do that says there “won’t even be public lands.” I know that that’s a Dominant Media Meme , but like many of those, it seems to be targeted to making people fearful and anxious about things that are not likely to happen, and amplify divisions. We can’t disagree about new OHV trails in SW Colorado, but we are either “for” or “against” public lands.
Here’s what Zinke said…”The Secretary adamantly opposes the wholesale sale or transfer of public lands.” as part of the Monument Q&A’s. Also …
“America has spoken and public land belongs to the people,” said Secretary Zinke. “As I visited the Monuments across this country, I met with Americans on all sides of the issue — from ranchers to conservationists to tribal leaders — and found that we agree on wanting to protect our heritage while still allowing public access to public land. “
I don’t trust a word that the Trump Administration says. They lie, then lie, then accuse all others of lying! Welcome to America in the world of Trump. The Trump Administration can claim to be guardians of both the public interest and the public lands. Let their deeds be their measure. They seem to be at war with the federal government. Despite rhetoric to the contrary, why would I expect them to preserve the public lands?
All political entities lie and accuse others of lying.. I don’t think that this is new. I don’t think they’re “at war with the federal government” they are using that power to their own partisan ends, just as we would expect. I read somewhere that “hyberbole is the native language of politics” and my own experiences on the fringes of politics would say that that is the case.
I, like many others, was disappointed that this President was elected. At the same time, we can’t assume in advance that everything that every agency does in this administration is bad. That is a story fed to us by media outlets that are often large corporations intent on inflaming people to click. For example, you like the “reorg along ecosystems idea” of Zinke. As I tell my friends, if you assume that everything the Administration does is an outrage, you won’t have any energy left when a real outrage comes along. I think that’s our job here.. to identify the real clinkers beyond the partisan hype.
Yes, all humans lie. But we are not used to this type 24/7 lying, even from politicians. . See this,from Politico: Trump’s Lies vs. Your Brain
Much of what I see from Trump is right out of the totalitarian play book. Maybe I’m wrong. But I’m not alone In thinking this.
As for “at war with the federal government,” just take a close look at most (all?) of Trump’s cabinet picks. Then add in Trumps many and varied attacks on the judiciary, legislators, and administrative folks, including but not limited to those referred to as the “deep state.” Many thoughtful people, not just Democrats, are concerned. Count me in.
I am not a fan of Trump. I am also not a fan of lying. But if you lie enough, people don’t believe you. These articles seem to think that people are more likely to believe lies from Trump than other sources of lies.. but I don’t know what evidence they have to support their (implied) claim.
As for Zinke and Perdue, they don’t seem so different from the Bush picks, certainly not “the end of the world as we know it.” And that’s because we’re observing what they do up close and personal outside of the Dominant Media Narrative. What if we knew enough to look at the other picks with the same level of detail?
Maybe I spent too long in DC, but even crazy people have trouble getting bad stuff done when there are 27 layers of non-crazies below them, and the Congress and the judiciary. Most of the folks in the media have never had government “boots on the ground,” plus they don’t necessarily delve into the details of policies (other than what interest groups tell them ) so they might think things are worse than they really are.
Sharon says: “But if you lie enough, people don’t believe you.” That may be true in the normal course of things, but not necessarily when lying takes the form of propaganda.
In Brooke Gladstone’s new book The Trouble with Reality: An essay on moral panic in our time , there is a chapter titled LYING IS THE POINT. Gladstone quotes Hannah Arendt:
Sharon also says: “These articles seem to think that people are more likely to believe lies from Trump than other sources of lies.. but I don’t know what evidence they have to support their (implied) claim.”
The article I referenced earlier contains internal source references, but let me add one more, from a historian not a psychologist ( https://www.theguardian.com/us-news/2016/dec/01/comparing-fascism-donald-trump-historians-trumpism ):
Maybe we in the USA will not underestimate the threat before us, assuming that such a threat exists. Or?
To compliment the unsettling of the American mind, add in this as to the framing/blaming nature of Trump culture-making: Trump’s Appeal: What Psychology Tells Us, from Scientific American, March 1,2017.
Perhaps this is not the kind of “evidence” you were looking for Sharon, but social sciences do tend to be a bit squishy.
Since some on this forest policy site won’t avoid broad political speculation and aspersions (on this forest policy site) about those who oppose their point of view, let me present the other side of the picture:
Keep in mind that many said the same things about Lincoln.
Keep in mind that many of us thought the same things about Obama and saw both he and Hillary as being above the law even more than CEO’s.
Keep in mind that the middle right in the US has done less in modern times to control other people’s freedom than the middle left which has even gone so far as to try to limit free speech, the free exercise of religion (extremely important to a descendant of Huguenots), and the right to carry arms (“the tree of liberty must be refreshed from time to time with the blood of patriots & tyrants. it is it’s natural manure.” Thomas Jefferson – Paris Nov. 13. 1787).
Keep in mind that both socialism and fascism don’t respect freedom and in my mind that is what my ancestor’s fought for, I served for and my neighbor’s believe in. “Don’t Tread on Me” still rings true for a great many of us who feel that the left has gone too far with their efforts to control others – That is what Trumpism is a reaction to. There is no fear of Trump ever going to the extremes of disobeying the constitution to the degree done by Obama and much less to the degree of Lincoln. He hasn’t locked up US citizens of Japanese origin like Roosevelt did. And if he ever goes too far he will also meet up with “Don’t Tread on Me”.
Keep in mind that a politician can no longer get elected without lying (see #1 below).
Some supporting quotes:
1) “The American Republic will endure until the day Congress discovers that it can bribe the public with the public’s money.” ― Alexis de Tocqueville ”
2) “I would rather be exposed to the inconveniences attending too much liberty than to those attending too small a degree of it.” ― Thomas Jefferson”
3) “Remember, democracy never lasts long. It soon wastes, exhausts, and murders itself. There never was a democracy yet that did not commit suicide.” John Adams
4) “Under democracy one party always devotes its chief energies to trying to prove that the other party is unfit to rule – and both commonly succeed, and are right.” — HL Mencken (1880 – 1956)
5) “Unless democracy is to commit suicide by consenting to its own destruction, it will have to find some formidable answer to those who come to it saying: I demand from you in the name of your principles the rights which I shall deny to you later in the name of my principles.” Walter Lippmann – This is part of what Trumpism is responding to.
6) “what disturbed de Tocqueville was the way in which, in the United States, people of no distinction, in terms of education, skill, experience or talent would refuse to defer to what de Tocqueville called their ‘natural superiors’, as he put it. They were inspired – he believed – by an unwillingness to bow before any kind of authority. They refused to think that someone could be better than them just because they had trained to be a doctor, studied the law for two decades or had written some good books.” De Tocqueville – Compare this to what our Declaration of Independence calls “certain unalienable rights”.
7) “A government big enough to give you everything you want is a government big enough to take from you everything you have.” ― Gerald R. Ford
Now, can we forgo supposition and get back to the facts of Forest Science and how it relates to Forest Policy?
Gil says, “….Now, can we forgo supposition and get back to the facts of Forest Science and how it relates to Forest Policy?”
Sounds good to me. Just as long as we can agree that forest policy is never far removed from underlying social and political movements. And if we can agree that there are as many who fear tyranny from the right as there are who fear tyranny from the left. And if we can agree that we need to better understand the roots of Demagoguery in this messy culture, so as to begin to correct the behaviors and rhetoric that have brought us to where we now stand.
1) Re: “Sounds good to me. Just as long as we can agree that forest policy is never far removed from underlying social and political movements.”
–> In any negotiation, the first rule is to find some common ground.
–> Trying to set forest policy based on “underlying social and political movements” is self defeating unless you first establish what the pertinent validated objective physical and biological science dictates so that you can adapt the subjective social and political opinions to reality. Anything else is getting the cart before the horse.
2) Re: “if we can agree that there are as many who fear tyranny from the right as there are who fear tyranny from the left.”
–> I don’t know how you can prove your statement.
–> Doesn’t it make more sense to be alert to tyranny no matter where it comes from? Your comment shows naivety and or prejudice for one and against the other of two proven failed philosophies (Socialism and Fascism) when applied to governance. One of my previous comments on this post noted that “Don’t Tread on Me” applies to Trump if he gets too far out of line. But right now he is just trying to return us to adherence to the laws of the land.
3) Re: “And if we can agree that we need to better understand the roots of Demagoguery in this messy culture, so as to begin to correct the behaviors and rhetoric that have brought us to where we now stand.”
–> Where we now stand is the best that has ever been in terms of freedom, health and the pursuit of happiness. What brought us here is the greatest freedom and equality that the world has ever known.
–> Catch up on some history, we now stand in a no worse place in terms of Demagoguery as mankind ever has. We just have more sophisticated tools to beat each other up with. Jesus Christ showed us how to grow up and live in truth but it hasn’t caught on very well in terms of actions. Demagoguery will be conquered at Jesus’ 2nd coming and no sooner.
–> “the roots of Demagoguery” are sin in all cultures past, present and future. All were or will be messy cultures – name one culture that was able to “correct the behaviors and rhetoric” and get to better places than we presently are in. Are you ready to go to war to impose your will (based on your suppositions) on others?
–> Demagoguery doesn’t value truth.
–> Well validated Science is Truth when not extrapolated beyond the environments in which the research was conducted.
Gil: “Trying to set forest policy based on “underlying social and political movements” is self defeating unless you first establish what the pertinent validated objective physical and biological science dictates so that you can adapt the subjective social and political opinions to reality. Anything else is getting the cart before the horse.”
No problem here. I did not suggest otherwise.
Yes, I misspoke when I said, “if we can agree that there are as many who fear tyranny from the right as there are who fear tyranny from the left.” I should have said, ““if we can agree that there are many who fear tyranny from the right and there are many who fear tyranny from the left.” This problem, is one reason that American politics has become so polarized and distrustful.
Gil: “…right now [Trump] is just trying to return us to adherence to the laws of the land.”
Wow. You are going to have an uphill battle convincing roughly half the country on that one.
Me: “And if we can agree that we need to better understand the roots of Demagoguery in this messy culture, so as to begin to correct the behaviors and rhetoric that have brought us to where we now stand.”
Gil: “Where we now stand is the best that has ever been in terms of freedom, health and the pursuit of happiness. What brought us here is the greatest freedom and equality that the world has ever known. Catch up on some history, we now stand in a no worse place in terms of Demagoguery as mankind ever has. We just have more sophisticated tools to beat each other up with. Jesus Christ showed us how to grow up and live in truth but it hasn’t caught on very well in terms of actions. Demagoguery will be conquered at Jesus’ 2nd coming and no sooner.”
Wow. I couldn’t disagree more! You will not likely read “out-group” sources, but others might. Here are a few, that run counter to your assertions:
The Trouble with Reality: A rumination on moral panic in our times. Brooke Gladstone. 2017
Democracy in Chains: The deep history of the radical right’s stealth plan for America. Nancy MacClean. 2017
The Public in Peril: Trump and the menace of American Authoritarianism. Henry A. Giroux. 2018
Fantasyland: How America went haywire; a 500-year history. Kurt Andersen. 2017
Requiem for the American Dream: Ten principles of the concentration of wealth and power. Noam Chomsky. 2017
And since I advocate for unwinding what I believe to be a very threatening demagoguery in the USA, here is another source:
Demagoguery and Democracy. Patricia Roberts-Miller. 2017
Finally, if we have to wait for “Jesus’ 2nd coming” to cure our overly demagogic culture, we might have to wait, and, wait, and wait. I’ll play your words back to you: “I don’t know how you can prove your statement.”
We have bridged a gap but, needless to say, we still have several irreconcilable differences. But, I think that we have strayed from the purpose of this blog as much as is appropriate.
The best to you for a civil conversation.
“But right now he is just trying to return us to adherence to the laws of the land.” Since it’s mostly off topic (though he does run the Forest Service), I’ll just say that most people who have read the Constitution and understand the law don’t agree with that statement.
Dave I agree with you about “real time” decision making based on an ongoing compendium of information. Another reason it makes sense is that neighbors change their minds over time about their own planning, so any realistic cumulative effects have to be done with project planning. In fact we had a more primitive version of this as some of the thinking behind the ill-fated 2005 Rule. I think we called it a “loose-leaf notebook” of analysis, data, plans and projects, but it was basically the same idea.
Re: “Hell, if the Trumpites (and/or the Republicans) get their way there won’t even be public lands.”
–> One could just as easily say …
I guess I’m as guilty as others w/r/t use of hyperbole. I really have no idea what the Trumpites or Republicans might do to or with our public lands treasures. But I do worry. Thanks for calling me on this.
Congratulations on your maturity. I was worried that I was being too vague in my own efforts to cut my own hyperbole usage back. 🙂