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agency would be required to provide notice of CE projects only in its Schedule of Proposed Actions or SOPA, which may not be published until after the decision has been made and the project completed.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.