So things were heating up with the Manchin regulatory reform for energy projects, or perhaps “quid pro maybe… not. ” It’s kind of fun to watch (more important) groups discuss the same kinds of things we always discuss. But to my amazement, the Center for Western Priorities mentioned this paper, which is actually about the Forest Service and uses PALS. So I guess the FS has hit the permitting “big time.” Here’s what CWP said.
Senator Joe Manchin released the text of his proposed changes to the country’s process for permitting energy projects. The legislation proposes two-year time limits on environmental reviews, prioritization of transmission projects, and significant permitting changes under the Clean Water Act. It would also authorize the completion of the Mountain Valley natural gas pipeline in Manchin’s state of West Virginia.
Recent research from the University of Utah found that the median time for completing an environmental impact statement was 2.8 years, while environmental assessments were completed in a median time of 1.2 years. The study found the main cause of permitting delays was a lack of expertise or staffing, suggesting that increasing funding for federal agencies may be the best way to improve efficiency.
Here’s the conclusion of the law journal paper:
Reviewing over 41,000 NEPA decisions made by the Forest Service over a 16-year period, we observed that reports on average decision-making times across agencies are skewed by outlying decisions with extended timeframes. Focusing on the median decision-making times reveals that the majority of decisions adhere to a more predictable timeframe that is shorter than reported averages. Moreover, level of analysis does not dictate decision-making times. The fastest 25% of EISs are completed more quickly than the slowest 25% of EAs, and the fastest 25% of EAs are completed more quickly than the slowest 25% of CEs. This overlap demonstrates that efficiencies can be achieved at each level of analysis without foregoing the “hard look” required by NEPA. Focusing on activities associated with delay revealed that many sources of delay attributed to NEPA are caused by external factors. Some of these delay factors, like inadequate staffing, insufficient funding, time spent on inter-agency coordination, and litigation aversion can be addressed through fiscal and cultural reforms. Other sources of delay, like delays obtaining information from permittees, are not caused by NEPA and should not drive NEPA reforms. Finally, when used properly, NEPA’s function as an umbrella statute and can mitigate or avoid delays caused by compliance with other statutory and regulatory requirements. We hope that our work, focusing on real-world problems causing delay within NEPA implementation, will provide a springboard to reforms that improve NEPA efficacy and advance the twin goals of public engagement and informed decision-making
It’s nice to know that scientific researchers aren’t the only ones to not spend enough time on framing. When people provide “evidence-based” answers in the literature and basically tell people who work in an area “your observations are wrong and off-base”, to me it’s a “Knowledge Production Situation That Shouts Watch Out!”. If I had one improvement to make, I would require that before any journal publish an article about the practice of something, that practitioners review it. Does that sound crazy? I hope not.
Nevertheless, there are many interesting findings in this paper that are worthy of discussion. So for those who are interested, please consider reading the whole thing and commenting.
1. The Forest Service, for historical reasons, has never sited much wind or solar energy, it’s mostly BLM. So if you were going to ask the question about wind and solar and transmission NEPA, why would analyzing FS decisions even be relevant? Perhaps because PALS exists, and BLM doesn’t have an equivalent (perhaps this is an example of the streetlight effect).
2. Many of us think it’s litigating claims under NEPA, NFMA, and ESA that takes time, not NEPA docs per se. This paper doesn’t discuss litigation at all.
3. The FS has, jointly with BLM, analyzed fossil fuel decisions, some of which I’ve been involved with. They are usually in litigation for many years. Interestingly, though, it’s hard to find a database of these timeframes. I wonder, though, it seems like both the FS and the BLM should have tracking of litigation timeframes. In fact, the FS has/had an Appeals and Litigation database similar to PALS at least at one time. We would be able to tell something relevant from that, I think.
4. I wonder what “litigation aversion can be addressed through fiscal and cultural reforms” means in the absence of changes in litigation. It seems to me that litigation aversion may be an altogether rational response.. to.. er… litigation.
Litigation aversion leads to unwieldy, bulky, time-consuming documents. The EADM Roundtables National Synthesis Report summarized the problem as follows: “Minimal litigation or objection is viewed as a positive outcome in terms of a project moving to implementation, but the negative costs of defensive over-analysis, unwieldy documentation, and narrowing the scope of projects in order to ‘fly under the radar’ of litigants are not usually considered.”248The concern resurfaced later in the report when discussing lengthy documents as a barrier to efficient decision-making. “Risk aversion and a history of legal challenges to USFS decisions have led to the ‘bullet-proofing’ of environmental analysis documents and specialist reports.”249The report continued, noting that “the complexity and size of analysis is of-ten inconsistent with the complexity and size of the project.”250The report explicitly distinguished between this dynamic, which it identified as a cultural barrier within the Forest Service and the NEPA process it-self. “NEPA is often blamed for these problems, when really it is not the law itself but the Agency’s process that is the cause [of lengthy documents].”251This observation is consistent with external research on Forest Service NEPA practice. In 2010, Mortimer et al., found that the threat of litigation had more influence than the degree of environmental impacts on Forest Service decisions whether to prepare an EA or an EIS for recreationa nd as “risk averse,” fearful of “backlash,” “not feeling supported in making risky decisions,” “perceived risk of being litigated and fear of losing in court” and feeling criticized for taking a risk where “success [is] defined as lack of objections or litigation”); REGION 4ROUNDTABLE REPORT, supra note 195, at 8 (identifying Forest Service staff as “risk averse” and hemmed by a “sue and settle” reality); REGION 5ROUNDTABLE RESULTS, supra note 192, at 6, 20, 28 (identifying “risk averse USFS staff” with “fear of making decisions based on imperfect data” and stating that “fear of litigation results in excessive time spent and detail in EADM documents” where EADM documents are “‘padded’ to mitigate risk of litigation” and “litigation threat undermines opportunities to conduct large landscape EADM”); REGION 6ROUNDTABLE REPORT, supra note 192, at 6 (identifying “risk aversion” as a barrier with line officers “not wanting to ‘rock the boat’”); REGION 8ROUNDTABLE REPORT, supra note 192, at 6, 8 (identifying “fear of litigation and defensive NEPA stance” as well as reluctance toward “taking on large projects for fear of objection to one small part,” suggesting that District Rangers resist a project for political reasons “until they change jobs”); REGION 9ROUNDTABLE REPORT, supra note 192, at 6 (characterizing a “risk averse USFS culture at all levels” that produces “excessive documentation”); REGION 10ROUNDTABLE REPORT, supra note 200, at 6 (describing “risk aversion” as a barrier with Forest Service “litigation-proofing documents” based on a “perception that all NEPA documents are challenged when only a small percent are challenged”). 247REGION 1ROUNDTABLE REPORT,supra note 192; REGION 2ROUNDTABLE REPORT,supra note 192; REGION 3ROUNDTABLE REPORT,supra note 200; REGION 6ROUNDTABLE REPORT, supra note 192; REGION 8ROUNDTABLE REPORT, supra note 192.248EADMROUNDTABLES NATIONAL SYNTHESIS REPORT,supra note 131, at 13.249Id. at 19.250Id.251Id.
6. Most puzzling to me was this..
The regression database identified 86 projects involving Forest Plan Revisions. The fastest took 45 days and the longest took 5,695 days. Only 16 (19%) took less than a year. Fifty-two of the 84 projects (60%) were analyzed in an EIS, 21 (24%) were analyzed in EAs, and 13 (15%) were analyzed in CEs. Eighty-four percent of the EISs took longer than the median time for EISs (44 out of 52 took longer than 1,006 days).
We could certainly learn something from the Forest Plan revisions that took 45 days and less than a year.. or maybe they were mislabeled or .. this certainly points to the utility of practitioner review, IMHO.
Again, there are many other interesting observations in this paper, and as long as this post is (sorry!) I only highlighted some. so please post the ones that you find intriguing in the comments.