PERC’s “Fix America’s Forests” Litigation Ideas: What Do You Think?

We’ve been having an interesting discussion about a specific organization, PERC, with my contention being that one should examine ideas on their own merits regardless of source, and Anonymous arguing something different, as usual, quite articulately, in their own words (I don’t know how Anonymous identifies gender-wise) here . As usual, I thought that diving down to specifics might help clarify our points of view. So I turned to a specific instance in which I think PERC’s ideas are worth examining. In this case, it’s about the challenge of maintaining the rights of organizations to litigate, while also tightening up processes so that lawsuits move forward more expeditiously (I think 15 years was mentioned).

So here’s a link to PERC’s Fix America’s Forests report. We can certainly discuss any other parts of the report as well. But litigation is well-trod territory on TSW and I hadn’t heard these ideas before, so let’s start there.

3. Make litigation less disruptive by requiring lawsuits to be filed quickly and clarifying how fire risks and forest health should affect injunction decisions.

While litigation can be a source of frustration for Forest Service personnel, the added expenses, delays, and uncertainty may be even more disruptive for private partners putting their own time and money on the line for forest restoration. To an investor in a Forest Resilience Bond, for instance, the possibility that a project could get bogged down like the Bozeman Municipal Watershed Project risks stranding funds for a project that may never go forward or, even if it does, would have an unpredictable timeline for generating a return. Congress could help the Forest Service and partners avoid these downsides, without sacrificing the benefits of environmental litigation, through reforms that provide greater transparency and predictability to those participating in forest restoration.

First, Congress can require lawsuits challenging forest restoration projects to be filed soon after a project is approved. Currently, lawsuits can be filed up to six years after project approval. A shorter deadline would let the Forest Service, private partners, and investors know early on whether a project will likely be tied up in litigation, enabling them to better allocate their resources and, perhaps, walk away from the project. While this could provide early confidence to those funding or performing forest restoration, it would not significantly frustrate the ability to bring worthy cases. Many challenges are already filed soon after a project’s approval. And some state analogs to NEPA require lawsuits to be filed quickly, without unduly restricting litigation. California’s Environmental Quality Act, for instance, requires many challenges to be filed within 30 days.

A shorter statute of limitations could have the added benefit of spurring greater collaboration by encouraging a project’s critics to develop detailed objections early rather than flyspecking an agency decision after the fact. During the 4FRI NEPA analysis, for instance, the Forest Service was able to avoid substantial litigation by requiring objectors to articulate their concerns in advance and meet with the agency to discuss them. This allowed the agency to modify the project to address those concerns or prepare a sufficiently detailed explanation of why it declined to do so, increasing the likelihood that the decision would be upheld by courts and reducing the incentive to litigate.

Congress could also make litigation less disruptive by reforming injunctions. Currently, courts can enjoin projects pending the outcome of litigation and, if the challenge is successful, permanently enjoin them until the agency cures the error. This can give litigants a substantial amount of leverage while a lawsuit is going forward, even if the lawsuit is ultimately unsuccessful, because people may be wary of investing in a project when they cannot be certain how long a case will take or what the outcome will be. To provide greater predictability, Congress could expedite cases concerning forest restoration projects by limiting how long preliminary injunctions can remain in place before a court ultimately decides a case.

Ordinarily, when a court determines that an agency has improperly approved some action the proper course is to “vacate” that approval until the agency cures the error. However, Congress can override this rule. Given the substantial risks of doing nothing in areas that are already at high or very high risk of fire and that border populated areas, Congress could impose a heavier burden to justify blocking a forest restoration project in these areas, such as limiting injunctions to cases where moving forward would be objectively unreasonable.

To my mind, these might not work, but couldn’t hurt much either, and might be worth trying. I’m not sure exactly how a shorter statute of limitations would help with flyspecking, though, it seems like the process would be done and flyspecking would just be quicker. What do you think? Are these bad ideas? Are they far-right ideas? Are the ideas contaminated by their association with PERC?

20 thoughts on “PERC’s “Fix America’s Forests” Litigation Ideas: What Do You Think?”

  1. Admittedly I am extremely biased, but I find PERC’s recommendations to be written by someone who is not a litigator and does not understand how the legal system works…but has heard all of the “bad” things!

    There is already a requirement to bring suit within 6 years (for most actions) of the violation of law accruing: this is known as the statute of limitations. Some laws change this timeline. Regardless, I don’t know of many litigants – if any – who wait for 6 years to file suit: we typically file suit as soon as it appears that the action agency might implement the project. Any sooner, and the action isn’t ripe, and any later and the action is moot.

    Requiring a MUCH shorter timeline – 30 days – is unnecessary and frankly, inequitable, particularly for communities of color or other underrepresented stakeholders who don’t have ready access to attorneys, or may not even know that a project is being implemented until implementation is well under way.

    This PERC statement suggests to me that the authors don’t understand public lands management and how it is funded (with taxpayer dollars almost exclusively): “A shorter deadline would let the Forest Service, private partners, and investors know early on whether a project will likely be tied up in litigation, enabling them to better allocate their resources and, perhaps, walk away from the project.” “Private partners,” “investors,” “allocation of resources,” “walk away from the project”…all these phrases sound to me like market and private investment issues that are not part of *federal* *public* forest management. Yikes.

    As a collaborator (guilty as charged), no successful collaboration I have ever been part of has been made “better” by putting the parties on an arbitrary short timeline to iron out differences. Coming together takes time to build trusting relationships. No one can collaborate with a gun to their head. I’m kinda surprised this “recommendation” made it in there; again, clearly suggested by folks who have never sat at a collaborative table before.

    I’ll leave it to others to comment on whether 4FRI has been “successful” 😉

    The law already requires judges to evaluate the request for injunctive relief, and to balance 4 factors before awarding an injunction (likelihood of success on the merits, likelihood of irreparable harm, balance of equities, and public interest). Issues of forest health, community safety, economics, and environmental impact are already routinely considered by the courts. The Healthy Forests Restoration Act also specifically requires an analysis of short vs. long term impacts of an injunction, for example, but that analysis still looks like the same balancing already required by law: it does not change the ultimate outcome.

    Putting on my former congressional staff hat on top of my litigator hat, I can also tell you that judges DISPISE being told how to manage their dockets. Suggesting that Congress should tell judges to move *forest management cases* to the top of their dockets – in front of immigration, criminal, or child welfare cases – well, good luck with that. The Bench will revolt. Despite what TSW folks think (myself included!), our issues just are not that important to “the real world.”

    PERC writes: “Ordinarily, when a court determines that an agency has improperly approved some action the proper course is to “vacate” that approval until the agency cures the error. However, Congress can override this rule.” Again, I’m not sure what planet PERC is on, but this isn’t how the judiciary works in America. Courts don’t “vacate” an action “until the agency cures the error.” When a court vacates something, it disappears as if it never existed. It isn’t resurrected when/if the agency cures the deficiency: the agency must begin anew.

    The only way that Congress can “override this rule” is by amending the Administrative Procedure Act, which sets out the remedies for unlawful agency action. That would be a heavier lift than revising the ESA or NEPA, and much more fraught given that the APA applies to every single agency action and decision and involves many different types of processes, including FOIA. This recommendation suggests this is a prudent and feasible pathway, but it just isn’t.

    PERC writes: “Currently, courts can enjoin projects pending the outcome of litigation and, if the challenge is successful, permanently enjoin them until the agency cures the error.” Yes, that’s true. Courts can and do issue “preliminary injunctions” halting a project until the court can rule on the merits of a case. But, speaking from lots of experience, obtaining an injunction is not easy and judges do not hand them out like candy: anyone who suggests otherwise isn’t familiar with how judges do their jobs or how often injunctions actually issue (not very).

    We should celebrate when courts halt unlawful action from occurring. As a nation of laws (if that’s what we still are), we expect federal agencies to follow the law, and the third branch of government to stop them when they are violating the law. Just because that violation of law may (or may not) reduce the risk of wildfire faster than if the agency complied with the law isn’t an excuse to allow unlawful action to occur.

    I find it curious that some suggest that injunctions shouldn’t be allowed on “our issues,” but sure do want injunctions to stop a neighbor from trespassing on our private property, or an abusive spouse from stalking a partner, or the operation of redline laws that perpetuate systemic racism. Advocating for special treatment is a very slippery slope.

    This PERC suggestion also makes no sense and demonstrates ignorance of the law: courts should “limit[] injunctions to cases where moving forward would be objectively unreasonable.” First, that’s what the law already requires, and what judges already do: they ARE neutral, objective arbitrators of disputes. Second, it suggests a new standard – “objectively unreasonable” – to further complicate the balancing that courts already undertake: this suggests adding yet another screen on top of the myriad other considerations. To what end? Again, this recommendation sounds to me like it was written by someone who doesn’t think they’re getting their way enough of the time, and want to put a further thumb on the scale, like a petulant child who doesn’t get all the ice cream they want for dessert.

    To be clear, it doesn’t matter to me what stripe of outfit suggests “reforms” to the legal system or environmental law or forest litigation, but they should at least know what they’re talking about. On this issue, PERC does not.

    • Today’s extreme right-wingers seem to have created a QAnon Forestry branch. These people are armed with false catch-phrases, mistrust, misinformation and a big lack of science that supports their vague desires. I am all for more active forest management, but I want it to be guided by science, collaboration, consensus, compromise AND it needs to fit under existing rules, laws and policies, with full transparency (whew! quite a mouthful).

  2. I think we’d get rid of many meritless and nuisance lawsuits by Keepers of the Yellow-Throated Tribblethumper and the legions of other self-proclaimed “watchdog” groups whose funding source remains mysterious, if we:

    1. Amended the federal Equal Access to Justice Act and equivalent state laws so that the losing plaintiff in a meritless or nuisance lawsuit has to pay the defendant government’s, property owners’, and businesses’ attorney fees. If the plaintiff wins, no problem; it can get the same attorney fees that it now gets under the Equal Access to Justice Act. Fair is fair.

    2. Required the plaintiff to post a bond in any case in which its lawsuit foreseeably would cause loss-producing delays in proceeding with a presumptively lawful economic activity. If the plaintiff loses, the bond would have to cover the defendant’s losses.

    Do those two things, and the regular litigation summary in these pages might be reduced to three lawsuits a year, i.e., those that have not only real merit but address an urgent issue that can’t be addressed in other forums.

    It will never happen.

    • This approach would only work if the motivation to litigate is attorneys fees. But it isn’t: its to protect the environment. Your “solution” suffers from misidentification of the “problem.”

      I’d encourage folks to take a look at the Forest Service’s FY22 budget justification: Page 149 is the agency’s annual report to Congress on EAJA fees paid out: amount, to whom, what line item, and what project. There’s an annual total as well.

      Those numbers do not support the contention that “EAJA reform” will “fix” the “litigation problem.”

    • The reforms you suggest are already incorporated into federal law (and in many states, too). Meritless, nuisance, or frivolous pleadings are sanctionable under FRCP 11, and include attorney fee damages to the opposing side. In addition, federal common law “authorizes federal courts (not agencies) to order a losing party that acts in bad faith to pay the prevailing party’s fees” (quoting from this Congressional Research Service treatise on Awards of Attorneys’ Fees by Federal Courts and Federal Agencies.

      Bonds are also the general rule when seeking preliminary injunctive relief before a case has been decided on the merits.

        • So grateful for Susan, Andy and Mathew representing truth and honesty in this discussion. The folks on here who are doing the opposite and think they’re being innovative and solving problems by accusing litigants of being part of Q-anon or being frivolous in their litigation is so far out of touch with the rule of law as well as a basic understanding of what environmental litigants objectives really are.

          The basic research question of this post, and PERC in general, is how can we lobby to create legislation to nullify the efforts of environmentalists in court? Or rather, how can we nullify environmental protection efforts in general?

          Look no further than the description on PERC’s about page if you want to understand how their goal is to make environmental laws voluntary and to instead let the stinky BS of “letting the market decide” rather than actual environmental science and law. Specifically:

          “PERC—the Property and Environment Research Center—is a conservation and research institute dedicated to free market environmentalism. Our research examines how markets encourage cooperation instead of conflict over natural resources and how property rights make the environment an asset by giving owners incentives for stewardship.”

          What an unsophisticated and unintelligent anti-environmental joke this never ending lobbying to eliminate environmental protection really is…

          So grateful Trump is no longer in power and your losing solutions will continue to lose and the implosion of the QOP under Trump is doing more to nullify your anti-environmental efforts than we could of done on our own.

          • Deane I don’t think anyone accused anyone of being part of QAnon, except maybe Larry did about PERC? And I get that you don’t like PERC. It would be more in the spirit of TSW if you would address the topics in the discussion instead of name-calling.

            I do have to add that some seem to think it’s bad that PERC is interested in protecting property rights.. and at the same time, the concept that everyone in the country should have an equal voice on decisions made on the XYZ National Forest… is based on.. federal property rights.

            • I didn’t label PERC, at all. I used “extreme right-wingers”, as evidenced by a popular forest management Facebook group. It’s almost comical what some of these ‘yayhoos’ come up with, as armchair foresters. Yes, there’s a few conspiracy theories passed around to those right-wingers, too.

          • Free market environmentalism is well worth considering, whether you agree with the role of free markets in such a role or not. Here’s what PERC says about it. This page has a video talk by Terry Anderson co-author of the book, Free Market Environmentalism, which I recommend reading. I think it’s been revised since it first came out in 1991. The video is worth watching.


            Free Market Environmentalism is an approach to environmental problems that focuses on improving environmental quality using property rights and markets. It emphasizes three important points:

            Markets, property rights, and the rule of law are fundamental to economic growth, and economic growth is fundamental to improving environmental quality. There is a strong correlation between treatment of the environment and standards of living.
            Property rights make the environment an asset rather than a liability by giving owners an incentive for stewardship.
            Markets and the process of exchange give people who have different ideas and values regarding natural resources a way to cooperate rather than fight. When cooperation supplants conflict, gains from trade emerge.

            Since its original publication in 1991, Anderson and Leal’s Free Market Environmentalism text has helped shaped thinking about environmental problems.

            • I think it is worth judging each proposal on its merits (and I think S. J. has done a good job of that here), but the circumstances where the private market can equitably resolve questions involving public goods are rare. However, one group that has actually had some success in helping “shape thinking about environmental problems” is the Environmental Defense Fund (

      • Thanks, Andy. In practice, obtaining sanctions in federal court is rare, to my knowledge. I did not know, however, that parties seeking a preliminary injunction in federal court generally must post a bond. That is good.

        I continue to think that less micromanagement of land management agencies by organizations opposing their efforts via the federal courts could bring about nice results. Some things might actually get done that seem trapped in molasses for years. To be sure, some things might also happen that ought not to. I’d be willing to take a chance. But, as I said, these reforms will go nowhere. Congress looks to be paralyzed for years to come. The forests’ fate is likely to be determined sooner by wildland fires that no one can control, thanks to climate change and other human factors.

        I’m not sure to whom these comments about extreme right-wingers and QAnon are directed. I’m a middle-of-the-road voter who has voted for Bernie Sanders. Generally, I look at issues pragmatically.

        • I’m directing those comments at “extreme right-wingers”, whose view of our forests is not based in facts. Who (wrongly) blame litigators for “stopping forest management for the last 30 years”. Who never blame Congress for not funding the Forest Service. Who, ultimately, want to return National Forests to State control.

  3. Thanks for responding, Susan!

    I agree with you about the reasons people litigate as in your response above to Lourenço.

    I appreciate your thoughtful legal insights. Just two comments.

    1. “Private partners,” “investors,” “allocation of resources,” “walk away from the project”…all these phrases sound to me like market and private investment issues that are not part of *federal* *public* forest management. Yikes.

    Well, except, we are supposed to be going into a period of developing major renewable energy projects on federal lands. I think this paper is talking about forest resilience bonds.. which I don’t understand yet, but hope to soon. We may be entering a period in which tactics which work against “bad” projects such as logging and oil and gas and minerals clash with our desire to meet climate targets via renewable energy infrastructure.

    2. “Requiring a MUCH shorter timeline – 30 days – is unnecessary and frankly, inequitable, particularly for communities of color or other underrepresented stakeholders who don’t have ready access to attorneys.” I’d say most of us don’t have ready access to attorneys whether we are underrepresented or not. If I can’t afford an attorney, then 30 days or 900 days doesn’t really make a difference. I see your point though.. maybe 60 days would be an appropriate interval for hunting?
    In my observations, people and organizations who can hire attorneys have money.. or attorneys volunteer. That necessarily leaves out people without money, or friend attorneys who would volunteer. This seems to me to be a possible generic structural injustice that may not be alleviated by any timeframes.

    • “We may be entering a period in which tactics which work against “bad” projects such as logging and oil and gas and minerals clash with our desire to meet climate targets via renewable energy infrastructure.” – this is a really interesting point, and may force some confrontations among groups that had otherwise united in their opposition to old and gas development, but may take differing stances on the use of federal lands for solar or wind development. No examples spring to mind, but it seems possible. I wonder, has anyone gotten wind of such conflicts brewing ?

  4. Susan, thanks again! I happened to find this in the Feinstein Wildfire Emergency Act, to a non-attorney it sounds like some of the same ideas.. or at least dealing with the same issues. What do you think about these clauses?

    “B) EXPEDITIOUS COMPLETION OF JUDICIAL REVIEW.—In the judicial review of an action challenging a forest landscape project described in subparagraph (A), Congress encourages a court of competent jurisdiction to expedite, to the maximum extent practicable, the proceedings in the action with the goal of rendering a final determination on jurisdiction, and, if jurisdiction exists, a final determination on the merits, as soon as practicable after the date on which a complaint or appeal is filed to initiate the action.
    (i) IN GENERAL.—Subject to clause (ii), the length of any preliminary injunctive relief or stay pending appeal covering a forest landscape project described in sub2 paragraph (A) shall not exceed 60 days.
    (ii) RENEWAL.—
    (I) IN GENERAL.—A court of 5 competent jurisdiction may issue 1 or more renewals of any preliminary in junction, or stay pending appeal, granted under clause (i).
    (II) UPDATES.—In each renewal of an injunction in an action, the parties to the action shall present the court with updated information on the status of the forest landscape project.
    (iii) REQUIREMENT FOR INJUNCTION.—A court shall not enjoin an agency action under a forest landscape project described in subparagraph (A) if the court determines that the plaintiff is unable to demonstrate that the claim of the plaintiff is likely to succeed on the merits.
    (iv) BALANCING OF SHORT- AND LONG-TERM EFFECTS.—As part of weighing the equities while considering any request for an injunction that applies to an agency action under a forest landscape project described in subparagraph (A), the court reviewing the project shall balance the impact to the ecosystem likely affected by the project of—
    (I) the short- and long-term effects of undertaking the agency action; against II) the short- and long-term effects of not undertaking the agency action.

    • These provisions are essentially a restatement of the law and/or a restatement of the judicial review provisions in HFRA, which is why I was comfortable supporting the underlying legislation. There is often a desire to “appear to be doing something about the ‘litigation problem'” when drafting legislation, and a restatement of the status quo can meet that need.


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