Forest Service Draft NEPA Rule Would Sharply Curtail Environmental Analysis and Public Review of Forest Management

On June 13, 2019, the Forest Service released a proposed rule amending its National Environmental Policy Act procedures.

This very detailed analysis of the proposed rule is making its way around various forest protection and public lands protection email listserves. It was written by people with decades of experience on these public lands issues.

According to the Forest Service, the proposed rule is designed to “increas[e] the pace and scale of work accomplished on the ground” – with a focus on removing hazardous fuels – by “complet[ing] project decision making in a timelier manner.”

As the analysis documents, the proposal, however, is much broader than its stated goals, exempting unqualified commercial timber harvest and a breathtaking range of other forest management activities from environmental analysis or public review via a suite of new and expanded categorical exclusions and other mechanisms that fundamentally undermine NEPA’s bedrock principles of government transparency, accountability, public involvement, and science-based decision-making.

Rather than focusing on and addressing the actual causes of agency inefficiency in environmental decision-making (e.g., funding, staffing, training, and turnover), the Forest Service has targeted America’s “magna carta” of environmental laws with its radical proposal. Ironically, the result is likely to be increased litigation and poorer management of our shared national forests, as corners are cut, laws are broken, and the public is cut out of decision-making.

Among other things the Trump administration’s Forest Service proposed rule would:

• Adopt seven new categorical exclusions (CEs) and expand two existing CEs to shield from any environmental review or public process a wide array of projects. The Forest Service estimates that up to 75% of decisions that currently receive public input could proceed under CEs in the future, including: commercial logging of up to 4,200 acres, converting illegal off-road vehicle (ORV) routes to official Forest Service System roads or trails, construction of up to 5 miles of Forest Service System roads.

• Eliminate the requirement to conduct public scoping for 98% of all proposed actions, including those covered by CEs.7 The agency would be required to provide notice of CE projects only in its Schedule of Proposed Actions or SOPA, which may not be published until after the decision has been made and the project completed. Without an opportunity to weigh in on proposed CE projects, the only option for the public to have its voice heard would be to resort to the federal courts.

• Weaken the “extraordinary circumstances” backstop for CE proposals.

• Permit the use of multiple CEs to carry out land management decisions.

• Remove Inventoried Roadless Areas (IRAs) and potential wilderness areas from the classes of actions that normally require preparation of an EIS.

• Embraces “condition-based management,” which allows the Forest Service to authorize land management activities – usually including timber harvest – without first gathering information about the resources that would be affected on the ground.

Again, you can read the entire analysis here.

27 thoughts on “Forest Service Draft NEPA Rule Would Sharply Curtail Environmental Analysis and Public Review of Forest Management”

  1. Who wrote the “very detailed analysis of the proposed rule”? There is no author or organization mentioned. The PDF was prepared by Alison Flint. An person by that name is the Wilderness Society’s Director, Litigation and Agency Policy.

    I’m not sure how she came up with 98% in “Eliminate the requirement to conduct public scoping for 98% of all proposed actions, including those covered by CEs.” The agency says:

    The proposed changes provide for discretion and flexibility in our scoping and public engagement based on what is appropriate for the project. The Forest Service will continue providing public notice in the Schedule of Proposed Actions (SOPA) which surpasses many other federal agencies. Additional scoping and public engagement opportunities are at the discretion of the responsible official. The responsible official may choose to conduct additional public engagement activities to involve key stakeholders and interested parties. Notice and comment will still be provided for EAs subject to the Forest Service objections process. Scoping will still be required for EISs in accordance with Council on Environmental Quality requirements.

    These changes will allow national forests and grasslands to concentrate resources on projects that are potentially more complex or have greater public interest. Increased discretion and flexibility can result in more transparency, provide timelier response to public needs, and accelerate decision making.

    • Steve, this was a group effort with collaboration by the most experienced policy wonks you could ever hope to assemble on Forest Service issues. I’d be happy to explain any of the analysis further if you’re interested.

      You mention the 98% figure: The proposed rule eliminates scoping for all decisions except EISs. Currently, 2.3% of decisions are made using EISs. So, that 98% figure assumes that EISs will account for the same percentage of decisions. It’s likely a conservative estimate, because the proposal also weakens the “triggers” that require an EIS.

      • Thanks for this Sam! I remember having to tell CEQ how many EIS’s the FS did, where did y’all get the percentage and numbers of CE’s, EA’s and EIS’s? Did you also get acreage covered by each kind of analysis totals?

      • Also it said in the Webinar that any EA would have public notice as a part of the objection requirement, and that some legislative CE’s also require collaboration. What is your take on that?

        • Sharon, to answer your first question, we got the data from the Forest Service through a FOIA request (submitted in January of 2018, litigated a year later, and finally answered last month). Unfortunately we only have aggregated tables, and we don’t have the acreages for each project or even each type of project. It’s driving me crazy, because I want to crunch more numbers.

          EAs will still have a legal notice and comment period, sure. But only after the project is fairly well developed and no longer malleable. And *most* projects that currently get notice and comment in the EA process will move to CEs. By the Forest Service’s estimate (which is consistent with the data I’ve reviewed), about 3/4 of its EAs will become CEs. When the dust settles, an astonishing 93.3% of all Forest Service decisions will be covered by CEs. No notice, no comment.

          Some (2) legislative CEs do require collaboration, but they wouldn’t be used routinely anymore. The proposed CE 26 has a bigger acreage cap and no strings attached, so it will be the go-to CE for veg mgmt.

          • Sam, you know something we could both agree on is that the database for NEPA projects (which I worked on when I worked in NEPA) should be a)kept up and b) publicly available.

            I think your and my difference about the utility of public comment with EAs may have to do with variation in local or regional practice. For example, this EA had a NOPA (notice of proposed action) with maps, and detailed descriptions, and a public meeting. See here for the County Line Project

            The County Line Project consists of the following components:

            Forest health and vegetation management treatments on approximately 1,597 acres of National Forest System lands using traditional logging methods.
            Fuels management and wildlife habitat improvements on approximately 13,661 acres of National Forest System lands using prescribed fire treatments.
            Forest health assessment and treatments on approximately 2,390 acres of National Forest System lands within the Sunlight Ski Area Special Use Permit boundary.
            Fuel reduction treatments adjacent to existing infrastructure located at the Sunlight Communications site.
            Glading treatments on approximately 47 acres of National Forest System lands within the Sunlight Ski Area Special Use Permit boundary.
            Winter recreation improvements along FSR 300 including a parking area for winter non-motorized recreation use, and construction of a snowmobile route.
            Move the existing gate located at the kiosk on FSR 300 to a location further south along the road to improve access for Christmas tree collection.
            Expand the existing borrow site located on FSR 300 to provide rock material for use in maintenance and reconstruction of roads and other facilities located on National Forest System lands.

            • One thing I don’t see mentioned in the discussion here (that also I think fits into the proposed changes in scoping) is that most forests work with formal collaborative groups that usually represent a wide range of interests. So that would still be ongoing on most if not all major projects. One thing that bothered me a little about the rationale for dropping scoping was “scarce resources”. That should never be a reason to do something like drop scoping. Properly done scoping can go a long ways in minimizing the amount of work done by the NEPA process – it can save time and money down the road by working out a lot of issues prior to developing a proposed action.

          • There’s that old “slippery slope” tactic again. Plus, as I have said before, the closing of litigation loopholes and marginalizing of some eco-groups would be awkward and painful, for both sides. That is the price for progress and action, instead of assuming that industry controls the Forest Service. The preservationists groups will have limited impacts on what our National Forests need. Courts will see more cases in the short term but, the laws should help the Forest Service establish a new path to better forest health.

            • I’m not sure I follow the “slippery slope” criticism; these changes are profound and immediate enough that we don’t need conjecture about what might happen next. But otherwise I think there’s a lot of wisdom in what you’re saying. In the big picture, the Forest Service is trying to make a trade: more action and more impact in exchange for fewer procedural safeguards.

              Now, whether or not you believe this is a good idea, I would argue that creation of CEs is not a lawful way to go about it, because CEs are not intended to be used for high impact projects or programs of work. That aside, however, you’re absolutely right that it will change the role of conservation groups and it will change the outcomes too. But remember that conservation groups are avatars for values that “count” under the multiple use mandate and NEPA.

              You’re also right that if the Forest Service is able to finalize this rulemaking, other laws will change as a result. The price the Forest Service pays for broad substantive discretion in the implementation of its multiple use mandate is the burden of process. This has been very clear in the caselaw. (See, eg, Ohio Forestry, which deferred to the Forest Service in planning based on the assurance of project-level process). If the Forest Service is unwilling to meet that procedural burden, then the law will adapt to limit its substantive discretion.

              Ask yourself, is this really a better outcome? More frequently litigated decisions and less deferential courts, resulting in haphazard implementation?

              • My experience is that “litigators gonna litigate” if they don’t like the project regardless of CE, EA or EIS. If the judge tells folks to go back and do more, that’s pretty simple to do from CE to EA for commonly done albeit potentially controversial projects (e.g. fuel treatment). Many judges in different Circuits make apparently random decisions about all this (IMHO). Of course, they are not really random (say Judge X feels grumpy about the FS), the facts are different, and the way the case is argued is different and all that..

                If judges make too many “out there” decisions (granted, in the eye of the beholder) and are not restrained by appeals courts, then the Congress will probably step in as they have for legislative CEs.

                PS I think that there is already haphazard implementation caused by random judicial decisions and by the fact that FS folks are advised not only to follow regulations but also case law.

              • The people who would be against CE’s for thinning, salvage and hazard tree projects like to say that those actions lead to more intense management on the ground, despite NEPA documentation and on-the-ground results. For example, there are people out there who claim that illegal clearcuts are common in salvage projects. Basically, they are saying that USFS salvage logging is really clearcutting. That is what I mean by ‘slippery sloping’. If those claims were true, they CERTAINLY would have been brought into court. (They weren’t brought into court but, proven false pictures were shown to their potential contributors)

  2. Why would they reduce the role of scientists in forest management? I can buy that maybe they’d like to get yelled at less by the public. That’s understandable, if cowardly. But to not consult academics about ecology when making changes to a forest is reckless hubris.

    • Salvage, thinning and roadside hazard tree projects have been well studied, and need no extra documentation to prove that projects are needed, in the areas of concern. As long as the Forest Service jumps through all the hoops, doing work that meets the purpose and need, I’m fine with fast-tracking such projects. “Slippery Sloping” such projects is ridiculous but, it is what eco-groups do when common sense is proposed.

      Again, old growth logging must not be included in those projects, unless the trees are hazardous.

    • Angelica, there are plenty of well trained scientific people on forests that actually know more about these kinds of projects than academics (because they need to synthesize all the relevant literature, and also see the impacts on the ground). As Larry says, this is not exactly a novel interaction with the environment.

  3. Here’s the view of Healthy Forests, Healthy Communities, “a non-profit, non-partisan grassroots coalition that advocates for active management of America’s federally-owned forests:”

    “Changes are needed because the Forest Service has been negatively influenced by anti-forestry activism and the real and perceived threat of litigation over NEPA compliance. Consequently, the agency developed a risk-averse culture, requiring its people to spend more time preparing paperwork …” (I think it is an overstatement to say the Forest Service is risk-averse, but I agree they have moved towards more prudent decision-making. From the NEPA documents I have seen, there is an opportunity to eliminate paperwork that is not relevant to the issues being addressed, which would be much better than trying to avoid addressing the issues that warrant attention.)

    “In the past 30 years, forest science and technology has improved significantly, and public lands managers understand the benefits of logging, thinning and prescribed burning for healthier forests, improved wildlife habitat, and cleaner air and water for nearby communities.” (Benefits are irrelevant to the NEPA requirements associated with the impacts of achieving perceived benefits.)

    “Anti-forestry groups have focused their opposition on a categorical exclusion that would expedite “ecosystem restoration” treatments at a maximum 4,200 acres, suggesting to their supporters this policy would result in large-scale clear-cuts. However, categorical exclusions do not mandate logging, rather they give public lands managers the flexibility to use a range of tools to meet the objectives of a restoration project as long as they are permitted by an existing forest plan.” (This is a major non-sequitur. Of course CE’s don’t mandate anything. But given more flexibility, of course the Forest Service will use that to its limit.)

    • If a Forest normally uses clearcuts and “overstory removal” as their usual ‘management’ techniques, I don’t think CE’s should apply. Such techniques should not be considered to be restoration. It’s better to call them what they are, and prepare them accordingly. Again, we need full transparency, and some people really don’t want any part of that.

      • Where stands have been degraded by past management practices, those certainly could be restoration and I can think of several examples…

    • An EA for installing a vault toilet? If there isn’t something unusually sensitive at the site, a CE ought to be more than enough for this sort of project.

  4. When I read that “the Forest Service” is proposing changes to NEPA procedures, who exactly is proposing this change? Any specific names?

  5. Who specifically inside the Forest Service is proposing this rule change? All I’m reading is that “the Forest Service” is proposing the rule.

  6. Anonymous and Allan..

    I don’t know exactly how it worked for this one. Based on my experience, though, I would have to say something along the lines of the administration wanted some regulatory NEPA efficiencies and asked the FS to figure out some. The FS had all kinds of feedback from the EADM about the special use backlog. They also had success with some condition-based management, and so on. FS staff probably put in a bunch of other things they thought useful to have in a reg, based on their experience. Then that had to go back through the chain of command, through the FS through the Department, and through OGC and CEQ because it is a NEPA reg., and maybe DOJ (?).

    PS You might also read that the “Trump Administration” is proposing a rule.. regardless of headline, it’s a joint effort. But of course politicals have the final call over the details that they are interested in.

  7. This was initiated by a Trump Exec Order … USDA then requires all agencies to “respond”. My impression is that Chris French, current Dep Chief NFS is ramrod on this proposed reg.

    • I don’t know what a “ramrod” is – how do you define it?

      When I worked on the inglorious CE’s (12 13 14) during the early 2000’s, it was mostly me and Deputy of EMC Pam Gardiner. It’s kind of like it was on the list of Administration things to do, but honestly, like a Planning Rule, no one gets a lot of political bonus points for NEPA regulations.

  8. I ran across this on Facebook the other day. It’s emblematic of why NEPA compliance reform is desperately needed.


    “Today the Montana Bicycle Guild, Inc., filed a motion to intervene in the lawsuit in the U.S. District Court brought by Helena Hunters & Anglers and Montana Wildlife Federation against the U.S. Forest Service. The MBG is intervening to support the Forest Service’s decision on the Ten Mile-South Helena Project and to protect the interests of mountain bikers.

    “As part of the post-disturbance restoration for this project, the Forest Service adopted several long-established trails into the trail system inventory and also approved the construction of three new thoroughly vetted and needed trails.

    “The lawsuit brought by Helena Hunters & Anglers and Montana Wildlife Federation challenges the incorporation of existing trails into the inventoried system. Their lawsuit also seeks to prevent two of the new trails in this area from being built. . . .

    “This would end-run years of work and collaboration to impose a de facto ban of bicycles from every trail in this area targeted by their lawsuit. If the Helena Hunters & Anglers and Montana Wildlife Federation lawsuit is successful, the bicycling community would suffer a major loss and be banned from this entire area.

    “This project doesn’t only impact bikers—every public land user would lose a couple of well-thought-out new trails that is the result of numerous people and groups working together for many years, including the MBG, to plan and collaborate with the Forest Service.”

    Would any employees of or participants in the public-lands litigation factory care to explain how this lawsuit benefits the cause of conservation?


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