We’ve talked about condition-based NEPA before in several posts. At the time I worked on a CBN project (2010-ish, Obama Administration), it was considered a way to deal with the need for management at the landscape scale. You’ll remember that “increasing the pace and scale” “landscape scale” and some version of “all lands, all hands” has been the view of several Administrations, and I don’t think is all that controversial. The idea goes something like this.. with climate change and past fire suppression (Ds) or past fire suppression and lack of timber management (Rs), there is a need to reintroduce prescribed fire and to protect watersheds, communities and species from uncontrolled wildfires (exacerbated by climate change.)
If I recall correctly, condition-based NEPA is in the current Forest Service NEPA regulations. But naturally, there are disagreements about specific NEPA approaches and specific projects.
We discussed the LAVA project on the Medicine Bow National Forest as an example of condition-based NEPA. Their argument, as with the Black Hills bug project, was that the changes in conditions due to bugs required flexibility. I wrote two posts on the WaPo story on the project (usually the WaPo is not too interested in Wyoming) here and here. It attracted much attention by some environmental groups.
I also delved through the documents to find their approach to site-specific public involvement, since some had expressed concerns about how/whether that would happen.
Last summer, there were major fires in that country, so what happened with the project? Fortunately, they have a handy webpage that summarizes the current status.
February 1, 2021 – During the fall of 2020 the Mullen Fire impacted the Medicine Bow National Forest, burning portions of six of the 14 accounting units that make up the LaVA project area. LaVA implementation is on hold in the six affected accounting units while Forest staff develop a supplemental information report assessing post-fire conditions in these areas. Additional information about the supplemental information report will be shared as it becomes available. LaVA implementation may proceed in accounting units that were not affected by the Mullen Fire in the Sierra Madre Mountain Range and the Northern Snowy Mountain Range (click here for details). Additional LaVA checklists for treatments in the unaffected accounting units will be released over the next few months. The LaVA StoryMap is being updated to reflect changes in the implementation schedule due to the Mullen Fire. Launch of the updated StoryMap is planned for early spring of 2021.
The LaVA StoryMap is an interactive GIS map where users can:
Learn more about the LaVA decision.
Utilize interactive maps of the Sierra Madre and Snowy Ranges in combination with LaVA project analysis data.
View past/current/future treatment locations and information.
Provide feedback on future treatments and focus areas.
Learn about cooperating agencies.
I thought the story map was pretty cool and I posted an image from it above. I particularly like how they’ve made it easy for people without GIS skills to look at the overlays.
So far, there has been no litigation and implementation of the project is ongoing. I wonder why, or what changed such that organizations which were against the project have apparently chosen not to litigate.
Condition-based NEPA was dropped from the final Forest Service NEPA regulations; it, “will be reconsidered in association with the Agency’s review of its NEPA procedures as directed by CEQ’s revised regulations.”
https://www.federalregister.gov/documents/2020/11/19/2020-25465/national-environmental-policy-act-nepa-compliance
That raises a question in my mind of whether the Forest Service should be using a process that they just specifically decided against authorizing.
The Vermont Law School apparently conducted a little research on condition-based NEPA and assembled it nicely here:
https://www.americanbar.org/groups/environment_energy_resources/publications/fr/20210510-the-us-forest-services-expanding-use-of-condition-based-management/
Their assessment of its legality, in particular the comparison of the Tennessee Creek and Prince of Wales court cases, sounds a lot like mine:
https://forestpolicypub.com/2017/07/31/tennessee-creek-project-in-colorado-successful-ea-for-large-project/
Tennessee Creek: “Based on this conservative (worst case) approach, coupled with a comprehensive, region-wide lynx management agreement and its associated environmental impact statement, the court agreed with the Forest Service that its future site-specific choices were “not material” to the effects on lynx—i.e., that no matter where logging occurred, “there would not be a negative effect on the lynx.” Id. at 1258–59.”
Prince of Wales: “The court found that this analysis was not “specific enough” without information about harvest locations, methods, and localized impacts. Id. at 1009–10. The court further held that a worst-case analysis could not save the project, because site-specific differences were consequential. Id. at 1013.”
They also addressed the concern about future public participation: “CBM is not only legally dubious, but also unnecessary. The Forest Service already has NEPA-compliant methods to deal with situations that require a nimble response to the needs of a dynamic landscape. In these cases, the Forest Service can complete a single “programmatic” analysis to which future site-specific decisions will be tiered. This programmatic approach allows the Forest Service to speed the consideration and implementation of site-specific, step-down proposals. Unlike CBM, this approach allows for public review of site-specific decision-making and administrative review of those decisions.” The LaVA process may be pretty, but it does not appear to provide this opportunity.
“So far, there has been no litigation and implementation of the project is ongoing. I wonder why, or what changed such that organizations which were against the project have apparently chosen not to litigate.”
The Record of Decision was signed in August. The Mullen Fire after that has delayed implementation in some areas, and the February statement above said, “Additional LaVA checklists for treatments in the unaffected accounting units will be released over the next few months.” There is nothing to indicate anything occurring yet on the ground that would be likely to trigger litigation (though the decision is arguably ripe for that). If the Forest Service was not responsive to this objection raising NEPA issues, I suppose we could see a lawsuit at any time:
“Conservation groups say the Forest Service violated environmental disclosure laws by not identifying where within the nearly 1,000 square mile project area the agency plans to log or build roads. The groups say that data is necessary to evaluate the proposal’s full impacts.”
https://www.publicnewsservice.org/2020-05-18/environment/conservation-groups-push-back-on-medicine-bow-logging-plan/a70246-1