The popularity of categorical exclusions

WildEarth Guardians noticed that the Forest Service is approving more and more vegetation management projects using categorical exclusions from NEPA procedures:  “a category of actions which do not individually or cumulatively have a significant effect on the human environment.”  They decided to do a little research, and found someone to report on it.

Rissien used Forest Service postings to tally all the logging and/or burning projects proposed for the past quarter – January through March – where forest managers had applied a “categorical exclusion” to avoid the public process normally required by law.

For just those three months, 58 national forests– that’s three-quarters of the forests in the West – proposed 175 projects that would affect around 4 million acres.

Rissien found, during the past quarter, USFS Region 4 – which covers southern Idaho, Nevada and Utah – proposed four projects that exceeded 100,000 acres each. One was 900,000 acres alone.

USFS Region 1, which includes Montana, northern Idaho and North Dakota, proposed 30 projects with CE’s last quarter, totaling more than 215,000 acres.

Logging projects intended to reduce insect or disease infestation or reduce hazardous fuels can be as large as 3,000 acres with some limitations. One CE created by the Forest Service for “timber stand and/or wildlife habitat improvement” has no acreage limit. Rissien found the Forest Service uses that for a majority of projects, and doesn’t even give a reason for others.

(There is also the “road maintenance” CE that has been the subject of litigation, including EPIC v. Carlson, here.)

There are some things to question in the article, but the slant of the article is not so much that what the Forest Service is doing is illegal, but that it is being done without much public information or awareness.  The article also points out that the Forest Service just seems to be following its marching orders from the president.  Tracking through the links gets you to this letter from the acting deputy chief, which says:

Consistent with this direction, Regional Foresters are to ensure that the Agency meet minimum statutory timeframes for completion of National Environmental Policy Act documentation and consultation with regulatory agencies. Categorical exclusions to complete this work should be the first choice and used whenever possible. I encourage you to explore creative methods and set clear expectations to realize this priority effort.

There’s a few points to make here.  I’m not aware of any “minimum statutory timeframes” for NEPA or consultation (the consulting agencies do have a deadline for providing a biological opinion).  I would translate “explore creative methods” into “take legal risks.”  Artificial deadlines aren’t creative, but they also result in legal risks.  Last is the implication that the use of categorical exclusions somehow avoids the need for an administrative record that shows that the use of the categorical exclusion isn’t arbitrary – that it fits the requirements of the category and does not have any extraordinary circumstances that could result in significant effects.  The lack of public review or an administrative objection process may save time, and it forces an opponent to sue, but it increases the risk of losing the case on an issue that could have been resolved before the decision.  (But if it gets points on the board during the game, does it matter what happens after?)  WEG said, “But we have to take their word for it since there is no supporting analysis we can review.”  If that’s what is really happening, it would eventually be a problem for the Forest Service in court.

11 thoughts on “The popularity of categorical exclusions”

  1. My experience with CE’s is to still do some public involvement, especially with those who may be opposed or have some concerns pays off in getting support and understanding. Pulling the wool over one’s eyes is not good management.

    • Totally agree, David! How much effort is needed to inform people of a proposed project and that its likely effects are commensurate with numerous past projects that had no significant effect to the environment? The Forest Service has mostly viewed public involvement as a “must do” instead of a “want to do”, and that has resulted in the enduring level of distrust by the public.

  2. Couldn’t agree more, Jon…emphasizing the “minimum statutory requirements” plays on the belief that the agency has the “social license” to address the large and prominent problem with our nation’s forests. That “social license” may exist in some circles, but not all, and to take for granted that everyone is “on board” with minimal effort to inform the public is a dangerous game to play. But, the leaders making these choices and setting policy will not likely be in their leadership position when it hits the fan, so the unfortunate successors of leadership will have to answer to choices made that they were not involved with.

    I always believed it was a bad precedent to strive for minimizing, or eliminating, public involvement for NEPA projects. I observed no quicker way to erode trust than to stiff-arm people who have an interest in THEIR public lands.

  3. I think we need to get the raw data from WEG, or at least a link to the projects they are talking about. A quick look at the Nez Perce website for veg projects got me to some EIS’s and some EA’s, Puzzling.

    Also I don’t agree with the reporters’ version of CE history. As described, using CE’s is mostly a choice of Republican administrations. To me, it is a coevolution between frequent litigants, R administrations, and most notably, the Congress. The Bush Administration HFI CE’s lost in court, and the Congress stepped in later with the current large scale CE’s, which were a brokered deal among Congressional folks. So, in some sense, to not use them where appropriate would be thwarting the intent of Congress.

    I worked on the Limited Timber Harvest CE, and that was in response to having lost a CE in court prior to the Bush Administration, so again, coevolution. For awhile on The Smokey Wire I was posting what kind of public involvement that people were using with the legislative CE’s and for some projects, it was about the same level as some other people use for EA’s.

    Now if Congress, who gave us NEPA and ESA, gave the FS legislative CE’s, should the Administration ask the FS to use them? Or not? Some intentions of Congress are good and others not so much?

    Another idea is that project write-ups don’t include why the project fits the category nor any discussion of extraordinary circumstances. I believe that those are required, and I have never seen CE documentation without them, so that would definitely be good to take a look at.

    Finally the wildlife habitat CE (administrative) has been loose for all these years, and so some people have been careful about not using it excessively. Perhaps it is surprising that it hasn’t been challenged in court.

  4. The Forest Service has 36 categorical exclusions for all manner of land management decisions, and has proposed to give itself additional authority in its proposed NEPA rulemaking. It also proposes to eliminate scoping for CEs: under the agency’s proposal, only notice in the quarterly SOPA (always on time and always accurate ) would be required.

    The way to build public trust is not by limiting public engagement or by expanding the circumstances under which public engagement would be curtailed.

    • Susan, I agree with you on scoping.. hopefully public comments have influenced the proposal. I am not as pessimistic as Tony, though, about decision makers scoping when it isn’t required. Which is kind of interesting, because we worked in different places at different times and with different people. And maybe I only saw the project “problem children” which people were very careful about doing correctly. I’d be interested in what others think about this.

      Here is what the SAF comment letter (that I helped with) said:

      “We are uncertain whether the Schedule of Proposed Actions (SOPA) alone, as currently available, is adequate. If the current language in the Rule is finalized, we recommend that
      the Forest Service consider adopting information sessions for the public on accessing and commenting on SOPAs and improving ease of access to SOPAs. This would include the ability for regional or national groups to access multiple SOPAs easily. The Forest Service should also consider setting further direction for determining the need for scoping in the Handbook.
      • We support public access to information, ability to express interest and comment, and transparency in Forest Service project decision-making. Since the new restoration category
      (26) will replace, at least to some extent, the legislative categories that require collaboration, we urge the Forest Service to encourage public involvement for that category.”

      • Even if a CE is used, I agree with previous commenters that it is important to do some level of appropriate public involvement, depending on the project. It just makes sense. On some CE projects that I have worked on in the past, we would get comments back to the effect of – why are you even asking for input – just go out there and do it! (Those were projects that were rather routine and had never been challenged). On the other hand, another CE project that I worked on would have replaced a large culvert, and that would have required a small community on the other side of the culvert to take a rather long, circuitous route to town (compared with their “regular” route). We had done another large culvert replacement on the same road 5 years earlier and had been able to work out community concerns about emergency access, etc. So, once again, we made sure we contacted that community and worked out important details for them again, as the regular route would be closed for a couple of months (as before). It’s all about common sense, and, as I was taught about “scoping” – notifying the interested and affected parties. Putting something in the SOPA would be adequate for the 1st case that I mentioned. It would not be adequate at all for the 2nd one (culvert replacement).

  5. “…where forest managers had applied a “categorical exclusion” to avoid the public process normally required by law.”

    Hang on now, CEs are legal, and they aren’t necessarily used to avoid a public process. I’m sure you’ve all seen this, from the USFS NEPA web page:

    What is a categorical exclusion?

    A categorical exclusion (CE) is a category that the agency has determined does not have significant impacts on the environment. Agencies develop a list of these categorical exclusions when they develop or revise their NEPA regulations. A categorical exclusion is based on an agency’s experience with a particular kind of action and its environmental effects. The agency may have studied the action in previous environmental assessments, found no significant impact on the environment, and validated that finding after the project is complete. If this type of action may be repeated over time, the agency may decide to amend their regulations to include the action as a categorical exclusion.

    If a proposed action does not qualify for a categorical exclusion or there is uncertainty about how it would affect the environment, the Forest Service performs an environmental assessment to determine if there are significant environmental impacts. If not, the agency would issue a “finding of no significant impact.” However, if there may be significant impacts, the agency is then required to develop an environmental impact statement (EIS).

    • You are correct, Steve, and I believe in the planning flexibility afforded by this important analysis and public disclosure tool. We should take advantage of our acquired knowledge that certain practices do not significantly affect the environment.

      However, after 20+ years of practice in Forest Service planning, I have arrived at the conclusion that line officers would prefer to not engage the public about their project decision making and only do so when required. That is what makes the proposed NEPA regulations so ominous (as Sarah Jane points out) – leaving public engagement to the discretion of decision makers who would prefer to not engage at all.

  6. ‘Push it through, and we’ll see what happens’ seems to be the slant from this Administration. The trouble is that Trump always underestimates the abilities of his opponents. When he loses in court, he has plenty of blame to spread around.


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