Condition-Based Management: Vermont Law School Paper

I was working on this post and Jon just posted a comment here on the same topic, so here goes and maybe we can move the current CBM discussion here.

Many thanks to Sam Evans and to the folks at the Vermont Law School for writing this article on a topic of interest… The U.S. Forest Service’s Expanding Use of Condition-Based Management: Functional and Legal Problems from Short-Circuiting the Project-Planning and Environmental Impact Statement Process. It’s probably clear from the title that their view is fairly negative one.

We can all disagree about CB NEPA, and when or if it should be used, and how it can be made better.

Condition-based management (CBM) is a management approach that the U.S. Forest Service has increasingly used to authorize timber harvests purportedly to increase flexibility, discretion, and efficiency in project planning, analysis, and implementation. The agency believes it needs this flexible approach because sometimes conditions on the ground can change more quickly than decisions can be implemented. In practice, however, CBM operates to circumvent the National Environmental Policy Act (NEPA) review framework by postponing site-specific analysis until the Forest Service implements the project, which effectively excludes the public from site-specific decisions, reduces transparency, and removes incentives for the agency to avoid harming localized resources. The practice should be curtailed by the Biden administration.

I’ll take issue with a number of specifics here:

In practice, however, CBM operates to circumvent the National Environmental Policy Act (NEPA) review framework by postponing site-specific analysis until the Forest Service implements the project, which effectively excludes the public from site-specific decisions, reduces transparency, and removes incentives for the agency to avoid harming localized resources. The practice should be curtailed by the Biden administration.

As I’ve said before, “effectively excludes the public from site-specific decisions” does not fit with what they are doing on the LAVA project, for example, as you can see here. In fact, it looks like there is more or less formal public involvement for prioritization of sites, which doesn’t necessarily occur with standard NEPA. What it means is there is no place for objection and litigation at each site. If a group didn’t think the activity should occur on a site with say, a certain wildlife species, they could still object to and litigate the overall decision. If the decision didn’t have an acreage cap, say, per drainage, they could object to and litigate that. So basically you have a pre-approved toolkit, with pre-approved caveats, in pre-approved areas. This is a pretty fine point, perhaps, but not really hard to understand.

Ah, you say, but that sounds like a programmatic EIS? And so then NEPA should also be done at the site-specific level. But since many of us can’t afford our own attorneys, our views have just as much of a chance of being heard sitting around in a meeting with the FS as in a courtroom. We don’t think of this much, but it seems to me that this is ultimately about power. If we take hunter q or hiker y or neighbor x or timber worker z who know the area, their views will not count compared to the groups who will be litigating (with all good intentions but perhaps different views).

“Site-specific public involvement can significantly improve projects because the agency may be unaware of harmful impacts or resource concerns until the public flags them during the environmental analysis process.” I absolutely agree, but there is site-specific public involvement..so..

The Forest Service appears to be abandoning the site-specific analysis model in favor of CBM.

That’s an interesting claim, since we have seen a number of site-specific EA’s, CE’s and EIS’s go by, and relatively few CBM projects. It would be good to know how many and what kind of projects are out there, and an updated PALs might be able to tell us that.

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.

Well, this is the “everything is currently fine” argument. Not everyone agrees with that as we have seen. And again, CBM projects do allow site specific public review, but not administrative review. Is it overkill for one project to have three administrative review/litigation opportunities.. forest plan standards, a programmatic, and the project level. And it’s certainly in the interest of environmental attorneys to have more opportunities for litigation, and for those trying to get projects done, to have fewer, or even one. I just think of a recent I25 widening EIS that had one layer (and it was site-specific). I think there is probably room for some kind of middle ground here.

For example, in the Sagehen example, they have a map of proposed temporary roads. Is that specific enough?

Maybe there should be a FACA committee that reviews CBM projects and makes recommendations for their use based on those experiences. I would see environmental attorneys as one stakeholder group, but not the only one.

Jon mentioned that CBM had been dropped from the new NEPA regs between draft and final. I only read the summary and it said the FS doesn’t need it because it’s already doing it. The counterargument would be that being in regulation would give the FS an advantage in court (perhaps). Maybe someone could read the entire answer in the response to comments?

14 thoughts on “Condition-Based Management: Vermont Law School Paper”

  1. Thanks for starting the conversation, Sharon. First off, all credit to the Vermonters for drafting, but I will make no secret of the fact that I agree strongly with their take. Hopefully you won’t be surprised that I plan to argue with you:

    > “effectively excludes the public from site-specific decisions”

    You question whether the public is being excluded from site-specific decisions because the LAVA project includes a non-NEPA site-specific process, and you conclude that this is really about “power.” Your implicit premise here is that NEPA’s only added value (beyond whatever voluntary input opportunity the agency offers) is giving groups the ability to litigate.

    The fact that some CBM projects are built with an expectation of informal public involvement is not the same thing as requiring predictable, transparent, and inclusive opportunities for input that inform and are informed by analysis of tradeoffs and comparison of (location) alternatives where appropriate. And the objection process is important for error correction. Removing this mandatory process and letting individual forests choose which (if any) procedures to provide at the site-specific level absolutely is excluding the public from site-specific decisions. After all, if the intent was to continue providing the same level of site-specific involvement, there would be no need or incentive for CBM.

    Even where CBM projects offer informal public participation, they are creating a replacement for the NEPA process. There’s a reason that the CEQ NEPA regs, for 40 years, told agencies that they couldn’t come up with their own procedures (and, indeed, couldn’t even paraphrase the requirements of the CEQ regs): When agencies created their own permissive rules and gray areas, it resulted in less public engagement and less effective use of NEPA to improve decisions for the coordinated national goal of protecting environmental values. We shouldn’t forget that lesson.

    I also have to call you out for reifying the idea that NEPA only creates a litigation vulnerability, and that it doesn’t otherwise provide added value to decisionmaking (relative to optional, a la carte procedures). The NEPA process (and, yes, objections and litigation) create strong incentives to take public concerns seriously and to correct errors *during* the decisionmaking process. Fully 21% of acres proposed for harvest in EA-level projects are dropped between scoping and decision (as cited in the article), and many more change in ways that are difficult to quantify. Most of these changes are prompted by public input, and very few occur at the agency’s own initiative. That’s NEPA: scoping concerns become analysis issues become tradeoffs that can be discussed explicitly in the daylight and with best available science. If the incentives to take public concerns seriously incentives are weakened, more unnecessary harm will occur.

    As an aside, the idea that NEPA gives groups the ability to litigate is just too simple. If the agency discloses impacts and entertains reasonable alternatives, there’s nothing in NEPA to support litigation. Agencies can make any decision they want, so long as they’re being honest and thoughtful. If an agency isn’t being honest and thoughtful, then we should identify why, and those are the problems we should fix. Why might they be reluctant to be fully candid? Sometimes it’s because they don’t want to admit that they can’t meet their other legal obligations under other laws, in which case it’s those laws (not NEPA) that create the vulnerability. Sometimes it’s because they don’t want to accept political accountability, which means either that (1) their management actions are out of step with what the public values and expects or (2) they haven’t done the work to educate the public about why those actions are important. If they’re out of step, then that’s an internal, non-NEPA problem. If they haven’t done the work, then NEPA is an important ingredient in explaining their actions and building trust.

    > “appears to be abandoning the site-specific analysis model”

    You disagree that we know enough to say that the Forest Service is abandoning the site-specific analysis model. Let’s remember that the site-specific NEPA analysis model has been the only game in town until recently. There were only two options: site-specific NEPA analysis or, for categories of action that don’t individually and cumulatively have significant impacts no matter where they occur, a CE. By creating new go-arounds, the Forest Service is indisputably whittling away at the requirement for site-specific analysis. We can disagree whether this is an “abandonment” (I think it is) but I don’t think there’s a serious argument that it’s not at least a weakening.

    And, for what it’s worth, CBM is just one of several new ways that the Forest Service is moving away from site-specific NEPA. There are also DNAs, which as abused by BLM allow the agency to skip site-specific NEPA if they’ve done similar work elsewhere. There are the new CEs, which cover actions that sometimes will have individually and cumulatively significant impacts, depending on where they occur. There are over-uses of older CEs, like CE6 (timber stand improvement), which is being used to cover large-scale commercial timber harvests. It’s simply not credible to argue that the Forest Service isn’t actively trying to get away from the site-specific NEPA model.

    > equating “CBM is … unnecessary” to an argument that “everything is currently fine.”

    I don’t see the authors make this argument, and I certainly wouldn’t make it either. Everything is most certainly not fine. But that’s not because the agency lacks the decisionmaking tools it needs. It’s because it lacks the training and funding it needs.

    The authors propose programmatic decisionmaking and tiering as a way to create the same efficiencies as CBM without skipping site-specific NEPA review. From first-hand experience, I can tell you that approach works. But how many Districts or Forests are using it? There’s only one example being implemented on the ground nationwide, even though (fortunately) more may be on the way. In other words, the agency is simply not using lawful tools that are effective at creating buy-in, improving outcomes, and increasing pace and scale. This just goes to show that there are problems with the agency’s internal sharing, training, and NEPA culture.

    > “a map of proposed temporary roads. Is that specific enough?”

    I don’t know this project, but here’s my rule: If they provide site-specific analysis and comparison of alternatives for environmentally consequential issues that were not resolved in a prior decision, it’s enough. If not, no.

    Reply
    • In no specific order…

      “From first-hand experience, I can tell you that approach works. But how many Districts or Forests are using it?” re: programmatic NEPA.

      1. Every forest plan is tied to a programmatic EIS that is then implemented through site-specific projects. As is the travel management rule on every forest that has gone through the TMR process (which is most, but not all).

      2. Programmatic NEPA is not necessarily a tool for the same task as condition-based management, because programmatic NEPA, at least in the form it has been used, is still not particularly well-suited as a way to adjust to changes on the ground. The programmatic NEPA still generates a suite of projects that have to be planned as new, individual site specific NEPA projects, with all of the constraints that brings.

      CBM is as Sharon described: “a pre-approved toolkit, with pre-approved caveats, in pre-approved areas.” Programmatic NEPA as I’ve seen it done does lay out a general program of work for a general area, but does not authorize work on the ground. CBM NEPA is designed to authorize work on the ground. That makes a significant difference, because the process constraint most often occurs when the program of work disclosed in the programmatic NEPA transitions into separate NEPA for specific areas.

      3. I’m trying to describe this quickly and accordingly doing a poor job, but the point I want to make is that programmatic NEPA is not the same thing as condition based, it is already in heavy use across land management agencies, and I would disagree that it’s a tool for addressing the same task as programmatic NEPA does.
      ————————————————————————–
      -“And the objection process is important for error correction. Removing this mandatory process and letting individual forests choose which (if any) procedures to provide at the site-specific level absolutely is excluding the public from site-specific decisions.”

      1. This is false, in that objection processes are not removed under CBM projects. Everything is still out there under 36 CFR 218. I imagine the take is more that, with less site specificity, the objections process is watered down. Would that be correct?
      2. Reason I quibble with things like this is that I find the polemic presentation of policy changes that has carried over from the atmosphere of the previous administration to be unhelpful, at least.

      —————————-
      “Most of these changes are prompted by public input, and very few occur at the agency’s own initiative.”
      1. *citation needed
      2. Also I think a statement like this should be informed by a look at acres dropped during implementation and there’s quite a bit more on the part of the agency – some of this reflects a planning process that starts larger and whittles down from there. Not sure if any research is out there that would answer this question.
      ———————————————-
      “We can disagree whether this is an “abandonment” (I think it is) but I don’t think there’s a serious argument that it’s not at least a weakening.”

      1. Weakened relative to what, would be the reasonable question to ask here? What is it that is weaker?
      2. (I know the answer will be that it is a weakening of public participation relative to the status quo, but is that the full reason? Are we arguing for public participation as an end in itself, or is the question about material outcomes tied to public participation? If so what kind of outcomes?)

      —————————-
      – “It’s because it lacks the training and funding it needs” && “This just goes to show that there are problems with the agency’s internal sharing, training, and NEPA culture.” What is sharing culture? what is NEPA culture?

      1. I don’t necessarily disagree that training and funding are in need of reform or more concerted efforts, but as presented I’m unsure about the relevance to the question here. Vague references to culture and funding seem here to just be a way of directing attention away from whether or not the use of a different planning approach is valid.

      I’m not being confrontational on this point given that I at least agree in a general way on what’s being said about training and funding in particular, but I want to know, what does the outcome look like? What does a better trained and funded FS planning staff look like to you? A lot of folks opine on the funding and training of the FS, but it often strikes one a a proxy for “an FS that does what I want and not what the other guy wants.” There’s no actual concern for institutional capacity, just for procuring the results of a given interest group. (This sword cuts two ways, not just directing it at environmental groups, by the way)

      Finally : ” Sometimes it’s because they don’t want to accept political accountability, which means either that (1) their management actions are out of step with what the public values and expects or (2) they haven’t done the work to educate the public about why those actions are important. If they’re out of step, then that’s an internal, non-NEPA problem. If they haven’t done the work, then NEPA is an important ingredient in explaining their actions and building trust.”

      Don’t you just love a dichotomy where it’s always someone else’s fault?

      Reply
      • Anonymous, I think we may be missing each other here, so I’ll try to clarify a few things.

        > 1. Every forest plan is tied to a programmatic EIS that is then implemented through site-specific projects. As is the travel management rule on every forest that has gone through the TMR process (which is most, but not all).

        Right, but that’s not what I’m talking about. I’m talking about a middle-layer programmatic analysis between the plan and the site-specific decisions. Sharon asked for an example in her reply below, so here’s the (singular) example, with a programmatic document, a tiered project in implementation, and another tiered project moving forward.

        What makes this approach work so well is that it is conducive to setting priorities and conservative sideboards that actually focus site-specific work and ensure that it has the broadest buy-in possible. Actually, you could correctly call this approach “condition-based” because that’s what priority setting means—identifying conditions that are high priorities for a toolbox of treatments, which you can then look for at the site-specific level. There’s really only one difference between this and CBM as it is currently being used—NEPA compliance.

        And, by the way, if you’re thinking that forest plans can accomplish this same kind of priority setting, it’s true that they can, and in my ideal world they would, but they usually don’t. The incentives during planning point toward reserving broad discretion for future uncertainty. This leaves lots of unresolved questions to work out at the site-specific level. And if you punt hard questions to site-specific projects, site-specific projects will be hard.

        A middle layer of priority setting creates efficiency by identifying priorities and sideboards, which narrow the decision space that is left at the site-specific level (and concomitantly narrow the analysis burden). Now, a mid-layer programmatic decision is not the only way to gain efficiency. Lots of forests have experimented with similar approaches. A collaborative group’s landscape-level recommendations or a landscape analysis without a decision can do much of the same work, but in all such cases the efficiency comes from priority setting. And if you want to take maximum advantage of those landscape-level analyses (which, if they’re going to be useful at all, are going to analyze priority actions), then you ought to be thinking about memorializing them in a NEPA decision that you can tier to.

        So to summarize the advantages: First, because it narrows the analysis burden and eliminates the need to re-analyze duplicative cumulative issues in every project, mid-layer analysis makes site-specific analyses shorter. Relatedly, because it supports getting buy-in on high priorities, it makes conflict less likely. For both reasons, the Cherokee NF example above immediately resulted in a dramatic increase in pace and scale. Second, mid-layer analysis could take some of the pressure off the planning process and shorten it. Again, the primary tension during planning is between (a) reserving discretion and (b) setting protective limitations. If there is an expectation that we’ll use mid-layer analysis to resolve some of the issues that escape limitation in the plan, it will turn down the temperature during planning. What would this look like? One way might be to describe a series of programmatic analyses future corresponding to different landscapes as an “order of entry.”

        > 2. Programmatic NEPA is not necessarily a tool for the same task as condition-based management, because programmatic NEPA, at least in the form it has been used, is still not particularly well-suited as a way to adjust to changes on the ground.

        As noted above, programmatic NEPA, in the form that it *can* be used, is a NEPA-compliant form of CBM. To go back to the Cherokee NF example, the “conditions” identified for treatment are dry forest communities dominated by off-site pine species because of fire suppression, planting, or other historical land uses. There’s a “toolbox” for treating them, a clear description of desired conditions, and some protective sideboards. These were all analyzed at the programmatic level, so there’s very little work to do in the tiered site-specific projects. The future NEPA process does leave room, however, to address site-specific recreation, botanical, and similar impacts that could, cumulatively, add up to significant impacts, but can’t be meaningfully analyzed at the landscape level.

        Programmatic NEPA doesn’t authorize work on the ground, but if used wisely it can get you *so close* to the ground that the additional site-specific analysis doesn’t slow down the work. If you can take a site-specific EA from proposal to marking in a year, the justifications for CBM aren’t as compelling anymore.

        > “And the objection process is important for error correction. Removing this mandatory process and letting individual forests choose which (if any) procedures to provide at the site-specific level absolutely is excluding the public from site-specific decisions.” 1. This is false, in that objection processes are not removed under CBM projects. Everything is still out there under 36 CFR 218. I imagine the take is more that, with less site specificity, the objections process is watered down. Would that be correct?

        There are no site-specific objections where the CBM decision is intended as the final decision.

        > “Most of these changes are prompted by public input, and very few occur at the agency’s own initiative.” 1. *citation needed

        You can find this citation in the linked article (same source as the “1 in 5 acres” stat). The raw data are the Forest Service’s own sample set relied on for last year’s NEPA rulemaking.

        > 2. Also I think a statement like this should be informed by a look at acres dropped during implementation and there’s quite a bit more on the part of the agency – some of this reflects a planning process that starts larger and whittles down from there. Not sure if any research is out there that would answer this question.

        Agreed. Post-decisional changes are relevant. Sometimes work gets dropped because of economics, but another common reason is high risk to soil or water. I’ve catalogued a number of projects where stands that were controversial before the decision, but were included in the decision, later got dropped for the same reasons that they were controversial in the first place. In other words, the agency is admitting that “the public was right all along,” which actually helps to make my point nicely.

        > Are we arguing for public participation as an end in itself, or is the question about material outcomes tied to public participation? If so what kind of outcomes?)

        See citation mentioned above, quantifying the aggregate and average material outcomes of analysis and public participation during NEPA.

        > What is sharing culture? what is NEPA culture?

        By sharing, I just mean peer-to-peer transmission of ideas. From my perspective outside the agency, it seems like a lot of what’s shared within the agency are memes about how NEPA is an obstacle or a vulnerability and doesn’t add value to decisionmaking.

        > I want to know, what does the outcome look like? What does a better trained and funded FS planning staff look like to you? A lot of folks opine on the funding and training of the FS, but it often strikes one a a proxy for “an FS that does what I want and not what the other guy wants.” There’s no actual concern for institutional capacity, just for procuring the results of a given interest group. (This sword cuts two ways, not just directing it at environmental groups, by the way)

        My organization is on record supporting much more funding for planning and monitoring. We need enough NEPA staff so that NEPA isn’t a bottleneck, and we need a NEPA infrastructure that promotes sharing ideas about how NEPA can improve decisions. (And by “improve decisions” I don’t mean doing what I want. I mean doing things for all stakeholders without causing unnecessary harm to others or blundering into unknown risks.)

        Reply
        • Appreciate the reply and supplemental info. So, few thoughts:

          “First, because it narrows the analysis burden and eliminates the need to re-analyze duplicative cumulative issues in every project, mid-layer analysis makes site-specific analyses shorter. Relatedly, because it supports getting buy-in on high priorities, it makes conflict less likely.”

          I’m not certain I can follow you all the way here on the idea that it won’t thereby require re-analysis of duplicative issues on every subsequent site-specific project. Where I’d agree is that it wouldn’t require re-analysis of uncontroversial issues. But where you get into more wicked areas of disagreement, it seems extremely likely that a programmatic analysis, when tiered to, will get pushback with the old canard of “do more analysis, the NEPA is insufficient.” I think buy-in could, but also may not, reduce that phenomenon. There are areas where I don’t see early involvement, buy in, tiered analysis, etc. creating enough agreement that you end up with no objecting parties claiming that you didn’t do enough analysis. That’s a difference I see with CBM and the programmatic process, namely that you cut off a “do more NEPA” fallback that is often used during an objection process when there really is no forthright intent that more NEPA will help the decision, in these cases it just delays or complicates. (though I must admit to not knowing precisely how to quantify delays potentially caused by that type of objection point!).

          These are really cases where it seems the disagreement doesn’t lie in the effects of the action per se but in the very pursuit of multiple-use management mandates in the first place. That may involve something like the use of timber sales as a management tool, or grazing, which some folks will oppose or support in a very binary way. I think the “do more NEPA” is often, though not always, as much a negotiation / leverage tool as it is about the actual content of the analysis and the management implications of that.

          So how do you think programmatic “mid-level” decisions tiered to very concise site-level analyses gets us around that part of the process predicament? Namely, how does that actually eliminate duplication, and what do you do with the potential for bad-faith calls for more analysis? To be clear I’m not saying that “do more NEPA” is always a bad-faith argument, but I think anyone with experience in the planning realm can testify to its occasional use as such.
          ————————————-
          Long winded on that one, sorry. next:

          “I’ve catalogued a number of projects where stands that were controversial before the decision, but were included in the decision, later got dropped for the same reasons that they were controversial in the first place. In other words, the agency is admitting that “the public was right all along,” which actually helps to make my point nicely.”

          I’ve respectfully gotta take issue with the framing here, much like Sharon did re: the public not consisting exclusively of E-NGOs. This assumes a problematically homogenous view of FS operations and staff professional opinions, in addition to a homogenous public. The public is seldom unilaterally for or against actions or even individual components of actions, and the same can be true within the FS. To stick in the timber realm, the planning approach often *is* a bit too big-gulp which results in the need to drop project areas for a wide variety of reasons from age of stand origin, ability to regenerate, soil types, slope and access, and on and on. You are correct that controversial areas with the public are often dropped, but what I want to do is nuance that picture a bit with respect to the other reasons that stands are dropped. What this points to is 1) that the FS is often dropping acres and incrementally re-considering project areas, and 2) that this is often, but far from always, driven by public input. I can’t claim to know how well this is accounted for in the data as early brainstorming-type project development can run through many shapes before things really start to get recorded in databases
          ————————————-

          “From my perspective outside the agency, it seems like a lot of what’s shared within the agency are memes about how NEPA is an obstacle or a vulnerability and doesn’t add value to decisionmaking.”

          I definitely think this was the tenor pushed under the previous exec. administration (but far from shared at all levels and units), so no qualms with how you put it there. I do wonder what can be measured and analyzed to attempt objectivity in discussing value added to decisionmaking. I’m broadly familiar with the literature on the subject and some of the quantifications of public input, or things that link project decision changes to public participation, but I’m trying to think of other metrics to round out that picture. Not that public participation isn’t a good, just that it isn’t the only good we’d want to consider in land-mgmt decisionmaking. What other metrics would point to, to put it crudely, “NEPA being good” or conversely to the need for change in how environmental analysis is done?

          The Fleischman et al paper was interesting initial quantitative research but may have taken a bit of a reach beyond the data when saying CEQ shouldn’t change the regs (though it points to CEQs rationale being weaker than claimed)

          What else is out there though? For what it’s worth, I think that NEPA is a critical statute but still have a feeling that how it’s implemented now is in need of revision(s).
          —————————————
          Finally, “My organization is on record supporting much more funding for planning and monitoring. We need enough NEPA staff so that NEPA isn’t a bottleneck, and we need a NEPA infrastructure that promotes sharing ideas about how NEPA can improve decisions.”

          Any links / transcripts, etc? Would be interested to read.

          Reply
  2. Thanks for sharing your opinion, Sam! I’m sure that there are areas where we would agree.

    1. The context and history of CBM and similar approaches to NEPA. Good project for collaborative learning?
    As A. alludes to above, CBM as practiced here falls within an evolving multiple agency view of what might be called Adaptive NEPA. In fact, I wish someone would point me to a review that rounds these efforts up.. if not, perhaps a good project for law students? We (TSW-ites) could help on this joint project by providing historic information and other projects.

    2. “The fact that some CBM projects are built with an expectation of informal public involvement is not the same thing as requiring predictable, transparent, and inclusive opportunities for input that inform and are informed by analysis of tradeoffs and comparison of (location) alternatives where appropriate. And the objection process is important for error correction. Removing this mandatory process and letting individual forests choose which (if any) procedures to provide at the site-specific level absolutely is excluding the public from site-specific decisions. After all, if the intent was to continue providing the same level of site-specific involvement, there would be no need or incentive for CBM.”

    I agree with you that some site-specific public involvement should be required. But what exactly? An open discussion of where to start. Maybe take notes as to priorities and post those notes looking for input? Then go to the sites, work through the check-list, have a field trip, post and open for comments?

    Why would this be faster than doing site-specific NEPA? Specifically, objections and litigation, and the time and effort that goes into objections and litigation for each site. And the problem with this is that conditions change before all of this can be worked through. If you look at the some early examples, they dealt with time-sensitive projects like Southern Pine Beetle outbreaks. Are fuel treatment projects time-sensitive? I’d say not as sensitive as SPB, but not completely insensitive either, especially if it is intended to protect your community.

    So I see one difference here that we agree on. The FS should do public involvement site by site. You point out, it’s not required, and I think the FS could require it, perhaps by putting it in the Handbook (which they usually do national public involvement with) or a reg. My view is that a FACA group should look at the current and past use of CBM, find best practices and what should be requirements and put out a draft reg or Handbook change.

    I do disagree that “the objection process is important for error correction.” Conceivably any thoughts anyone has could be put into comments for the site-specific analysis (addressing the checklist plus other info). What information would be in the objection that isn’t in the original comments? I guess the FS could have gone off in an unpredictable direction based on the comment. So perhaps two 30 day comment periods per site? Draft SSA (site specific analysis) and Final SSA (30 day comments)?

    Would this save time over doing objections and litigation. I think, yes. I think for a non-novel kind of project two rounds of public comment should be enough to elucidate any great ideas or errors.

    3. “If the agency discloses impacts and entertains reasonable alternatives, there’s nothing in NEPA to support litigation.”

    Would that were so! When people don’t like projects, and don’t have ESA, the FS can be forced to reanalyze due to judges agreeing with plaintiffs that … they didn’t address certain issues “adequately” which as a participant I found totally in the eye of the beholder. Or maybe the judge thinks the FS should have used different air quality models. Or predict the impacts of GHG emissions and how that would impact snails in Mongolia (I’m being a little rhetorical here). Or maybe someone wrote a paper that says fuel treatments don’t work and the FS didn’t spend enough time citing other sources.

    I agree with you that people bring up good ideas and public involvement is a good thing. But I also think that there are folks who simply don’t want a particular kind of project and use “the analysis was insufficient” as a tool to delay projects. It just makes the FS go back and do more analysis. Is that analysis usually meaningful? In my experience, not.

    “Sometimes it’s because they don’t want to accept political accountability, which means either that (1) their management actions are out of step with what the public values and expects or (2) they haven’t done the work to educate the public about why those actions are important. If they’re out of step, then that’s an internal, non-NEPA problem. If they haven’t done the work, then NEPA is an important ingredient in explaining their actions and building trust.”

    I think we’re pretty far apart here. The public is composed of many groups, not just E-NGO’s. Certainly, members of the public disagree with each other and the FS has to either act or not act, and people won’t like whatever choice is made. But why would we think that E-NGO’s represent “the public” any more than any other interest group?

    4.. “There are the new CEs, which cover actions that sometimes will have individually and cumulatively significant impacts, depending on where they occur. There are over-uses of older CEs, like CE6 (timber stand improvement), which is being used to cover large-scale commercial timber harvests. It’s simply not credible to argue that the Forest Service isn’t actively trying to get away from the site-specific NEPA model.”

    I don’t get this.. using CE’s requires site-specific analysis and scoping, and for the new CE’s, collaborative processes.

    I think we might agree that some forests might get carried away with the use of CE6, and when I worked for the FS we discouraged that .. our mantra was “if you abuse, we all might lose.” This is another great topic to discuss, though to my mind, separate from CBM.

    5. “From first-hand experience, I can tell you that approach works. But how many Districts or Forests are using it? There’s only one example being implemented on the ground nationwide, even though (fortunately) more may be on the way. In other words, the agency is simply not using lawful tools that are effective at creating buy-in, improving outcomes, and increasing pace and scale. This just goes to show that there are problems with the agency’s internal sharing, training, and NEPA culture.”

    I think from what I’ve read https://forestpolicypub.com/2020/12/04/science-friday-does-collaboration-make-a-difference-mciver-and-becker/ that collaborative groups and big-gulp EIS’s would be the alternative to CBM.. also one and done, but not flexible to changes.

    Can you link to some of the successful programmatic plus site-specific projects?

    Bottom line..
    If CBM had two required public comment periods, on the Draft SSA and post “Final” SSA, would loss of objections still be a problem? What specifically might we lose by not including those steps?

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    • I’ve got limited time today, but I did include an example answering your question #5 in a response to Anonymous above.

      One more round before I duck out:

      > “Would that were so! When people don’t like projects, and don’t have ESA, the FS can be forced to reanalyze due to judges agreeing with plaintiffs that … they didn’t address certain issues “adequately” which as a participant I found totally in the eye of the beholder. Or maybe the judge thinks the FS should have used different air quality models. Or predict the impacts of GHG emissions and how that would impact snails in Mongolia (I’m being a little rhetorical here). Or maybe someone wrote a paper that says fuel treatments don’t work and the FS didn’t spend enough time citing other sources.”

      This just isn’t what’s in the statute or the regulations, and NEPA has never been interpreted to mean these kinds of things. The FS gets to pick its methodologies, and it gets the benefit of all doubts when settling differences of professional opinion. The fact that a project is “bad” is *never* enough reason to file a challenge. It has to be arbitrary and capricious, which is literally the most deferential form of judicial review.

      I would agree that FS staff often *worry* that their work will be tossed out for trivial reasons, but that’s just not the way it works. Projects get canceled, instead, because the judge is convinced (under an extremely deferential standard of review) that the agency was using the NEPA process to reason backward to a decision already made, which led them to ignore or downplay risks or alternatives.

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      • Well, in my experience, I’ve found some court decisions that seem “arbitrary and capricious” to me. The FS doesn’t always get the benefit of the doubt, and it appears to me that that is a general principle, but judges can find ways to get around it when they feel like it.

        But this is a good discussion as from now on we can look at cases and see whether the FS “ignores or downplays risks or alternatives” or “uses the NEPA process to reason backward”. What seems to happen a great deal is that the FS just has to go back and do more work, consider the new information and make a new decision. For example, using a different air quality model or considering a new alternative. Reasonable people can disagree about what is a “reasonable” alternative.

        What we were always told is that the agency could make a decision even if there are really bad environmental consequences, as long as the judge agreed with the way we go about describing them.. because after all, NEPA is a procedural statute.

        “that the agency was using the NEPA process to reason backward to a decision already made”.. there’s plenty of projects (all I’ve seen?) in which you can easily trace the development of the project based on public comment. In fact, in my experience, I think it’s relatively rare that “a decision has already been made”.

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  3. We can carry this on from here, and Sam has added a lot of valid points, but I want to go back to our discussion here as well: https://forestpolicypub.com/2020/08/19/the-lava-project-site-specific-public-involvement/

    A key point made there is accountability, which is provided by NEPA and its related objection opportunities. This also has me thinking of the “NFMA/NEPA triangle” portrayal (which was taught to the Forest Service NEPA practitioners for at least a decade) where the left side is the “plan to project” process where “possible activities” are considered before initiating the NEPA process for a proposed action (the right side). Considering possible activities after the decision is made turns that on its head (or at least into some other kind of geometric shape). (Here’s what the original triangle looked like in 2007: https://www.researchgate.net/figure/The-NEPA-Triangle-Source-USDA-Forest-Service-2007_fig3_228124229)

    But the real legal flaw becomes obvious when you read about how LaVA’s actual decision-making process would work (quoted in the prior post linked above):
    “Intent: Provide an opportunity for the public and cooperating agencies to provide detailed, site-specific feedback for individual treatment proposals identified within the Focus Areas.”
    “Outcome: Refined individual treatment area boundaries.”
    “Incorporate feedback into treatment design…”

    What is the underlying purpose of this public involvement? It is to identify potential adverse effects of a proposed action, suggest alternatives and compare them and their effects. There is no question that NEPA applies to this process. The only question would be about the degree to which the larger LaVA decision has already considered those effects and alternatives, which would determine how much additional NEPA disclosure is necessary. (And it may include the need to (re)consider the no-action alternative.)

    The two court cases cited in the Vermont article tell us how courts are likely to review such projects. The key question is whether the site-specific locations are consequential, which should focus on whether the environmental effects differ because of the location. The Forest Service is going to have to check a NEPA box for each project decision, and they might want to allow objections (the LaVA public process could produce a good record to litigate on). When push comes to shove, they will probably be forced into using their large-scale decision as “programmatic NEPA” that is not the final decision.

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    • A few points, some in agreement and some in disagreement:

      1. “Considering possible activities after the decision is made turns that on its head” – cf. what Sharon said re- a pre-approved toolkit, with pre-approved caveats, in pre-approved areas. This is not so much doing the NEPA triangle backwards as it is emphasizing the parts of that triangle differently, in my read.

      2. “When push comes to shove, they will probably be forced into using their large-scale decision as “programmatic NEPA” that is not the final decision.” Agreed here – this is distinctly plausible and possibly even anticipated in the construction of some ongoing “condition based” NEPA, specifically the fact that it may be pushed into serving a mid-level programmatic role.

      3. “The two court cases cited in the Vermont article tell us how courts are likely to review such projects.” Also agreed, with caveats that the vermont article did not discuss some potential lessons learned from those cases, beyond the worst-case analysis bit (e.g. what about estimated implementation planning to reduce the potential for compounding uncertainty from a large area and vague activities). Nor are those the only cases to consider for things that are at least in the same conceptual league as what’s getting called CBM now – e.g. Ashland Forest Resiliency and
      Navickas v. Conroy.

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      • You piqued my curiosity about that other court case. Here’s the 9th Circuit’s holding (affirming the district court on this issue): “The FEIS explained where permitted treatments will be applied, identifying four “major strategic categories” and their component Plant Association Groups, and explained which treatments will be applied in which areas and to what extent. The Forest Service had no obligation to identify the specific trees that would be removed as part of the Project.” It sounds like the focus of this case was more on the kind of data used than the vagueness of the project proposal.

        The district court opinion is more specific, stating, “Because the final EIS organizes the treatment strategies according to Plant Association Groups (“PAGs”), (see A.R. 6874, 6904), it describes the treatments within each “Strategic Category” using to the number of acres to be treated according to P AG, (A.R. 6966). The PAG treatments’ prescriptions are described in detail in Appendix D. (A.R. 7400-7417)…The final EIS describes the period of time over which the treatments will be applied, (see A.R. 6908 (stating that all of the action alternatives assume a ten year project implementation period)), the order in which the four “Strategic Categories” will be treated and
        the estimated time it will take to complete the treatments, (A.R. 7021-7022)… On this record, the court cannot conclude that the Forest Service has failed to identify where the proposed treatments will be applied, thereby precluding a meaningful analysis of the
        environmental impacts associated with project implementation.”

        I agree that this introduces more shades of gray about how site-specific the analysis needs to be for it to be “meaningful.” However, I’m not sure this is an example of “what’s getting called CBM now.” In addition to the degree of site-specific analysis actually provided, the project involved 8,150 acres of the Ashland Municipal Watershed, which I don’t think is an unusual project area size (nor is the 10-year time horizon an unusual duration). Feel free to elaborate on why you think it is.

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        • I agree, Jon, that AFR is not the condition-based management we’re seeing today. In fact, it’s actually far more detailed than we get in some “traditional” project-level NEPA.

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  4. FYI, Vermont Law School is a private professional school and is not affiliated with the state-funded University of Vermont.

    Reply

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