More Info on Infrastructure Bill: Pollack and Fite on the Emergency Action Authority

Previously, we had wondered a bit about the Emergency Action Authority and its implications.  Here is one take from Marten Law’s analysis.

The IIJA establishes a new statutory categorical exclusion (“CE”) from NEPA for fuel breaks.[xvii] A statutory CE altogether exempts projects meeting the statutory CE’s requirements from NEPA’s environmental analysis requirements.[xviii] This new fuel break CE applies to fuel break projects up to 1000 feet wide and encompassing up to 3000 acres. It also applies to lands administered by either the Forest Service or the Bureau of Land Management. As agencies continue to confront increased wildfire risks, this will provide a secure and timely path forward for fuel break projects that are needed to facilitate effective wildland firefighting.[xix]

The Act also establishes new “emergency action” authority to “mitigate the harm to life, property, or important natural or cultural resources on National Forest System land or adjacent land.”[xx] The Secretary of Agriculture can use this emergency authority to address a wide range of needs, including salvage of dead or dying trees, harvest of frost or wind-damaged trees, the commercial and noncommercial sanitation harvest of trees to control insects or disease (including trees already infested with insects or disease), the removal of hazardous trees in close proximity to roads and trails, the removal of hazardous fuels, replanting or reforesting of fire-impacted areas, restoration of water resources or infrastructure, and reconstruction of utility lines and underground cables, over up to 10,000 acres.

The emergency action authority has two major litigation implications. First, it limits the NEPA analysis required for any qualifying project. The Environmental Assessment or Environmental Impact Statement need only consider the alternatives of action or no action rather than a range of alternative actions. That change eliminates a potent argument that challengers use in NEPA cases.[xxi] Second, a court may only enjoin an emergency action project if the plaintiff shows it is “likely to succeed on the merits.” This in effect abrogates the “serious questions” or “sliding scale” standard that the Ninth Circuit applies when analyzing whether to issue an injunction.[xxii] That change would make injunctions significantly less likely for emergency action projects, particularly in western states within the Ninth Circuit. In concert, these two policy changes may streamline projects that previously would have been delayed by litigation.

According to these authors, the new emergency action authority would affect how many alternatives are needed (and possible ensuing litigation about specific ones that weren’t analyzed) (as we had previously discussed), but these authors bring up the 9th Circuit  “serious questions” or “sliding scale” standard.

6 thoughts on “More Info on Infrastructure Bill: Pollack and Fite on the Emergency Action Authority”

  1. So is there a definition of “emergency,” or is this just their interpretation of what (they hope) would be allowed? And if the “Secretary” gets to “know it when they see it,” can that just be delegated to forests and districts?
    I also wonder if (permanent?) fuel breaks would be consistent with a forest plan that said they were going to produce logs there, or that they were at least going to grow trees to maturity for ecological reasons.

  2. The expectation is that the definition of “emergency” in 36 CFR 218.21 would be used. But even that definition is full of agency discretion to call almost anything an emergency. If past is prologue, the new provision would be used to expedite post-fire salvage logging.

    • “If past is prologue, the new provision would be used to expedite post-fire salvage logging.”

      My guess is that is exactly what some Congressmen want!

      If we could impose ‘conditions’ upon an ’emergency salvage project’, what would be acceptable, non-damaging limitations? While there are some extremists out there who think that ALL salvage logging is bad (and we don’t need to ask them this), most timber land wildfires could use some ‘snag thinning’, in some places. I guess what I am asking is; can we greenlight salvage projects, if they meet certain criteria? We should all recognize the need to get in there quickly, to harvest the smaller diameter stuff, before it ‘goes bad’.

      (Also, don’t assume that clearcutting is a normal thing in USFS salvage sales. I think we should continue to not allow clearcuts in salvage projects.)

      If “agency discretion” is the biggest controversy, here in 2021, doesn’t that represent ‘progress’?

      • It’s actually what most congresscritters want 🙂

        Although I am squarely in the snag forest-loving camp of “all salvage logging is bad,” I do believe there is rationale middle ground on this one too.

        I’d first point to the Chetco Bar salvage effort on the Rogue-Siskiyou NF. There, the USFS used a screening process to drop out highly contentious and ecologically damaging acres, which still left the agency with merchantable sales and also roadside hazard tree removal options. The USFS prepared an EA for that fire and didn’t get sued.

        I’d second point to our experimental research salvage logging project on the Malheur NF in the wake of the Canyon Creek fire. There, our collaborative group worked with the RMRS and local forest leadership to put together a salvage project that was comprised of experimental treatments across 3 gradients of fire severity and treatment to approximate ideal habitat for MIS cavity excavators (woodpeckers). The USFS prepared an EA and the salvage was completed less than a year after the fire. Nobody got sued, and peer-reviewed science came out of it: RMRS now has a model and tool called FIREBIRD that can be used to ensure enough snags of certain size, species, and arrangement are conserved to provide for wildlife needs post-fire and post-salvage.

        So, it threading the needle can be done and without any sort of NEPA or process waivers.

        Again, I’m not at all a fan of salvage logging (salvage litigation is a sizeable portion of my docket), but I also don’t see large fires going away any time soon, so we need to find a way to ensure ecologically appropriate post-fire management occurs. Of course, such direction *should* be in forest plans, but it is absent from most LRMPs: the Northwest Forest Plan LSR direction is one exception to the general rule.

        • Of course, the details of salvage projects should be based on site-specific conditions, too. All the way back in 1995, we were requiring multiple sizes of snags to be left, per acre. Most modern salvage projects leave way more snags than most people know about. Again, I think entire wildfire footprints should be included in analysis, to ensure that the snags outside of the cutting units actually ‘count’ towards wildlife ‘goals’. There are also plenty of snags in stream buffers, too.

          The “not one stick” folks will be left behind, if they don’t ‘adapt’ their beliefs. Hey, if the Ninth Circuit Court can do it…..

        • “It’s actually what most congresscritters want”

          I’m surprised that some California Republicans haven’t proposed waiving all environmental laws in order to expedite salvage logging on both the Caldor and Dixie Fires. McClintock, La Malfa and others will probably craft a bill, which will get shot down in the House (as it should). That way, they can tell their voters that “I tried!”

          It will be interesting to see if ‘the usual suspects’ change their legal strategies, for these California megafires. The Forest Service needs to strike quickly, without changing their recent policies, to reflect the new infrastructure rules. Go with what worked in the recent past.


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