Our Joint NEPA Study III: Introducing the “Index of Annoyance”

We had a number of good ideas for research topics discussed earlier this week.  I’m going to post some research that’s been done, and some of my own ideas and experiences. TSW readers are encouraged to submit posts either with your own ideas or research you consider relevant.  These may serve to generate more ideas and/or to hone the ones you already have.

Unusually enough, we actually had a question by a journalist Ryan Sabelow, reporter for the Sacramento Bee on Twitter. I removed some language.

As to Ryan’s point, there have been some studies along the lines he suggests, including budget and staffing, and I’ll talk about one in the next post on this.

Still, Ryan’s friend was expressing something… litigation has an impact, that is commonly believed among many Forest Service folks,  but has not been shown in the relevant literature. So there’s a gap between academia (and others) and practitioners. It’s not the academics’ fault.. it’s our own fault, in my view,  for not explaining our point of view better. Of course, it’s awkward or impossible to do that in public without being retired (except if you’re anonymous), so there’s that.

The tweet from Ryan’s friend reminded me of a conversation I had about 10-15 years ago with Denise Keele, who had co-authored a NEPA litigation paper, which also concluded … everything is fine. I was joking when I said “let’s develop an index of annoyance..talk to practitioners about what factors about litigation they find irritating, and develop a score for each project. Perhaps people could get extra pay for working on projects with a high projected annoyance score?”  Now I think perhaps even describing annoyance factors will help to bridge the gap.  I have some that I have written about, and more that I will add, and others are welcome to add theirs via post or comment.

I’ll give an important caveat here. Of course, litigation has an important place in the public policy ecosystem. Agencies need to follow the law.  Sometimes Agencies screw up and their shortcomings need to be brought to light.  Litigation can be a way to achieve these goals outside the political process.  But with the need (not agreed to by everyone) to build renewable energy projects in certain places, and to help protect communities from fire (not agreed to by everyone) in other places,  it seems like it’s a good time to talk about how this way of achieving goals is working to all parties involved.

Even talking about the landscape of litigation, from the FS practitioner’s point of view, can be uncomfortable outside the office (thank you, Ryan’s friend, and Ryan, for sharing this).  FS folks generally don’t want to be offensive, and realize that litigation is part of the government system that we pledged to uphold.  Plus whining or complaining is not always a preferred cultural norm. At the same time, I think it’s important to hear the FS employees and stakeholders’ side of the story (as well as the perspective of litigants, of course!).

So my idea is to help others understand how different kinds and approaches to litigation may impact FS people, the NEPA process, and stakeholders involved in projects.  There may be some value in simply airing frustrations; but certainly it will help  folks like Forrest and Ryan understand some of the complexities.  Both things are true: (1) generally NEPA works well and (2) in some cases it’s frustrating.

The end result might be- besides mutual understanding- a paper that academics can cite, e.g.,  (TSW et al. 2023) “litigation of projects can have perceived negative impacts on employees and stakeholders.  These include both short-term impacts during the litigation process, and long-term adaptive impacts as litigation and agency decision-making co-evolve.”


19 thoughts on “Our Joint NEPA Study III: Introducing the “Index of Annoyance””

  1. Wouldn’t it be nice if we didn’t have to be obsessed with the perfect planning document and actually used some of the limited resources to determine if we achieved desired outcomes on the backend?

    • “determine if we achieved desired outcomes” Now that’s a study I’d like to see. Has anything like that been done on a forest — whether the forest met or exceed its goals, such as achieving progress toward a desired condition.

      • Steve Wilent; we did at the project level. Timber sales meeting desired conditions and Rx burns investigating meeting fuel and ecosystem objectives. We would do sale reviews and burn reviews. I really enjoyed that time, and would document findings. Lots of problems solved by having the entire team sitting on stumps, eating lunch and discussing findings…….

        • I concur with you, Jim, that some project-level monitoring/review occurs. However, not often enough to build a credible case that the landscape condition (not just the project area) is moving in a desired direction.

          • The only exception I have seen Tony, is the Ouachita NF; long term treatments, and a propensity to manage for Red Cockaded Woodpecker is a great proving ground for landscape scale desired condition…

          • I think that’s supposed to happen with plan monitoring. I think some forests did a pretty good job of this. Maybe someone else has examples?

            • Sharon, yes, but these project specific monitoring and analysis is something of a holdover from my Region 6 days. Of course it ties to the Plan, but where the rubber meets the road also needs that interdisciplinary compliance review. We only would only do the close out reviews on a couple of projects per year; not enough time to do much more.

              Of course it was a formal review. We were doing all kinds of neat stuff (growing season burns, hardwood restoration and regeneration – we were mainly a pine forest on the Ouachita) and even clearcuts in off-site species plantations.

                • I do not dispute that individual FS units accomplish effective monitoring that gets rolled into future project design and decision making. However, my emphasis is on “individual”, which tells me that the agency has yet to figure out how to make the “feedback loop” of the decision making process work across the country. This failure is especially noticeable when a decision maker (or attorney) attempts to explain why a specific project’s effects would not affect the overall unit’s ecological integrity (I am referring to the recent Mountain Valley Pipeline decision in the 4th Circuit).

                  • Tony, is there another pipeline that they would be monitoring that would give them information for the proposed one? I’m not sure that there is a logic path between an individual project and “not affecting overall ecological integrity,” or whether it’s in the eye of the beholder.

                    • Sharon – in looking at the MVP 4th Circuit decision, the following sentence from the end of that decision is telling:
                      “In any event, the Forest Service has not provided an analysis of whether application of the existing
                      Jefferson Forest Plan is adequately protecting these resources elsewhere in the Jefferson National Forest.”

                      I read that as the JNF does not have adequate monitoring and evaluation information to know if the Forest Plan is actually protecting resources. Hence, the forest cannot claim that the pipeline’s short corridor across the forest has benign effects to the entire forest because they do not know what the entire forest’s condition is!

                    • This is actually a reply to Tony’s interesting comment below quoting the court’s opinion. He’s right about what the court says, and that could suggest relevant monitoring is always required before project-specific plan amendments. I think it is important to put it into the context of this case, where the court said this in response to the the FS defending the effects as minimal because the exceptions are only for a small part of the forest. So I think what this opinion does is foreclose the FS using that argument unless it has monitoring to show that the rest of the forest is adequately protected. This could be important.

    • Amen. Spelling this out some, a widespread impression is that the processes aren’t intended to work well, so we’re continually trying and failing to find ways to, if not cut the gordian knot, at least untangle the lower half that lies between forest plans and actual work on the ground (and sorry, nobody in the field levels of the agency considers producing paper trails an *actual* outcome, they see problems that get ignored for years going on decades because the vaunted “process” provides such powerful disincentive for acting.

  2. I’ll wade into the fire… while I was Siuslaw Forest Supv we completed a 10-year landscape level EIS – 40,000 acres, all projs (timber, wl, fish, rd closures) with a detailed monitoring plan. 38-page DEIS was completed in 6 weeks, and FEIS puffed up to about 70pp. No appeals, no suits. Drew a big yawn from Reg Office NEPA shop.
    The key? We proposed projects that people SUPPORTED, especially enviros. The reason many env groups oppose anything that hints of “unnecessary logging” is because of DECADES of CCing OG. The stench endures, sustaining cynicism and doubts about FS authenticity and trustworthiness. The tortured, serpentine road I’ve walked with Tongass and Black Hills NFs these past few years (as a retired Dep Chief!!) defy credulity.
    I’ve heard many FS leaders say that the agency is NOT a logging agency anymore, but watchdogs beg to differ, and I tend to agree. The loss of trust is costly indeed. The FS is many things – many wonderful things – but suspicions persist about motives and methods; with good reason in my view.

  3. Why would anyone find it annoying to have to analyze the effects of a proposal, consider ways of mitigating that and document all this? Possibilities? They are professionals and they know best, so public butt out. They are under pressure from their boss to meet targets and don’t have time for this nonsense. Are we sure that “radical enviro litigation” isn’t a scapegoat for something else that is the real annoyance?

    • Well, that’s precisely it. I don’t think anyone is annoyed by doing NEPA. I could be wrong, others?. Analyzers love to analyze and get paid for it.I’m actually kind of surprised that no one has laid out the list of annoyances heretofore. But I’ll lay out the ones I personally found annoying, and others are welcome to add theirs.

    • I concur, Jon…litigation sometimes receives an unfair characterization, especially when it gets in the way of a FS employee’s professional opinion or the accomplishment of annual targets (as you mention). Jim F’s comment on “lack of trust” rings true with my career experience. Once a previous FS leader/employee puts a dent in public trust, the lack of distrust can be quite enduring. I was fortunate to work for a ranger who believed in building public trust, worked hard to gain that trust back, and held her employees accountable to her belief. But alas, once she moved on, the district employees were subject to the next ranger’s beliefs/philosophies, which had the likelihood of being less interested in public trust. It is unfortunate that this tends to be cyclical.

  4. @Jon – yes, that is exactly my point. The FS, based on the MVP decision, can no longer only say they monitor…the court said they must now show substantive analysis of their monitoring to substantiate their claim that the overall Forest (or grassland) condition is not being harmed by the FS’s active management actions. Few, if any, monitoring evaluations speak to that conclusion on a forest-/grassland-wide scale. Hence, the court’s conclusion.


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