Permitting, NEPA and Litigation Tweaks in the Infrastructure Bill

I didn’t see any others in the bill other than the four below that relate to forest and federal lands activities. However, that’s not to say that this list is complete.


Sec 40806 CE for Fuel Breaks

Establishes a Categorical Exclusion for fuel breaks up to 1,000 feet in width, not more than 3,000 acres of treatments and located primarily in — the wildland-urban interface or a public drinking water source area; if located outside the wildland-urban interface or a public drinking water source area, an area within Condition Class 2 or 3 in Fire Regime Group I, II, or III that contains very high wildfire hazard potential; or an insect or disease area designated by the Secretary concerned as of the date of enactment of this Act.

As we’ve discussed, as a veteran of developing administrative Categorical Exclusions (and seeing them lost in court cases for reasons that seemed a bit random to me), I’m a fan of legislated ones. I didn’t find the definition of “public drinking water source area” in the bill, but perhaps it’s an EPA term?

Sec  40807 Emergency Actions

Establishes  a new statutory tool (separate from and in addition to the agency’s administrative emergency situation determination process) that authorizes the Secretary to determine that an emergency situation exists on National Forest System lands and allows treatment to be carried out pursuant to the Secretary’s emergency situation determination.  If the Secretary determines that an authorized emergency action requires an environmental assessment or an environmental impact statement the Secretary shall study, develop, and describe only—(A) the proposed agency action; and (B) the alternative of no action.  Requires the opportunity for public comment during the preparation of both environmental assessments and environmental impact statements for authorized emergency actions. Actions under this section are not subject to the objection process and a court shall not enjoin an authorized emergency action under this section if the court determines that the plaintiff is unable to demonstrate that the claim of the plaintiff is likely to succeed on the merits.

I haven’t really understood the ins and outs of ESD’s in the first place, so I don’t know how this “new statutory tool” would relate, perhaps someone else can explain?  It seems like it would streamline any required EA or EIS by requiring only one alternative and no objections.   I also don’t know about the test for enjoining and how different that is from current practice.

Here are some more infrastructure-y tweaks:

Transportation Projects.  Sec 11311. Efficient Implementation of NEPA for Federal Land Management Projects.

Allows Federal land management agencies to adopt environmental review documents prepared by the Federal Highway Administration (FHA) for certain transportation projects if the document addresses all areas of analysis required by the land management agency. Allows Federal land management agencies to use environmental documents previously prepared by FHA for projects addressing the same or substantially the same action. Under certain circumstances, allows Federal land management agencies to use Categorical Exclusions established by the FHA.

Critical Minerals .

Requires BLM and Forest Service to complete the Federal permitting and review processes with maximum efficiency and effectiveness while supporting economic growth. Requires DOI and USDA to provide a report that identifies measures that would increase the timeliness of permitting activities for the exploration of domestic critical minerals (among other requirements). After submission of the report, DOI  and USDA are required to develop and publish a performance metric for evaluating progress to expedite permitting for exploration.

(this doesn’t itself tweak NEPA practices, but could potentially lead to some recommended tweaks in the future; similar to the Wildfire Commission.)


8 thoughts on “Permitting, NEPA and Litigation Tweaks in the Infrastructure Bill”

  1. This seems like a loss for those who want the Forest Service (and USDA) to have ‘less discretion’ in management decisions. We should start hearing the fear-mongering about ‘forest destruction’ and ‘Agency capture’ soon.

  2. Thanks for highlighting these.

    They must have had someone from Australia working on this since “public drinking water source area” is apparently an official term there. I’m more familiar with “source water protection area:”\
    You’d like to think they have some idea of how much area outside of these or WUI would meet their criteria for a CE. Since they are silent on “extraordinary circumstances,” which may override the CE authority in some circumstances, I assume that general requirement of CEs still applies.

    As I think I commented on an earlier version, the language regarding injunctions seems to take away a court’s normal discretion to balance the likelihood of success on the merits and the relative harms of enjoining the action or not, and basically just requires a preliminary decision on the merits. Seems like that could cut both ways. (I’m also not well-versed in ESDs, but I read it the same as you.)

    • I’m sure there will be much hand-wringing over what constitutes an “Emergency”. For some people, no ’emergency’ ever requires human intervention. They always prefer to accept that ‘whatever happens’ is fine with them, as long as the land is ‘preserved’.

    • I did the same googling as you, Jon, and ended up with the same Australia links. I also agree that a preliminary merits finding could go either way. But it skips making the work for the judge to get up to speed on various peoples’ opinions of “relative harms” so maybe would speed things up and make less work for judges.. merits are all legal, I think, and not biophysical so might be easier for judges to quickly consider.

  3. Single alternative NEPA analyses undermine a core principle of NEPA, to explore alternatives in the search for those that might have fewer environmental trade-offs. To consider only one alternative presumes several counterfactuals: (i) that the agency knows exactly how to do complex things, but the agencies are still learning how to accomplish ecological restoration and fuel reduction, and (ii) that there are no trade-offs from fuel reduction, but in fact there are, such as carbon emissions, habitat removal, soil degradation, and increasing fire hazard by generating slash, making the stand hooter/dryer/windier, and reducing canopy cover which stimulates the growth of surface and ladder fuels which are more hazardous than the canopy fuels removed, etc.

    • Just because the alternatives aren’t public, that doesn’t mean they don’t exist. A fire that burns less fuels quicker is better than a slow fire burning in massive fuels. I’ve seen some aerial pictures of the Dixie Fire, and they show increased fire intensities, especially in Lassen Park (where there’s no logging). I’m sure there will be some managed forests that are cooked, too. Sadly, almost a million acres burned for months. We should be trying to avoid those scenarios. A million acres of low-intensity fire is what we need, and we cannot get there without forest management.


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