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?