Foot on the Gas. Log on the Brake and.. Arbitration?

A theme I’ve been thinking in terms of infrastructure build-out our country has one foot (and lots of federal tax $) on the gas, and a log (and lots of federal tax $) on the brake. I’ve been working on comments to the proposed NEPA regs, and listening to speakers on their webinars. It’s kind of funny how agency NEPA people are responsible both for not using plain language, and not including enough detailed scientific perspectives- which might be hard to do at the same time. We can discuss the proposed reg here at TSW, if anyone wants. The Admin claims that it is streamlining while adding more analysis and legally disputable changes. Anyway, I’d appreciate draft copies of comments if you would like to share.

From last week, here are some foot and log stories..

From the LA Times:

Note what Dave Jones, director of UC Berkeley’s Climate Risk Initiative and the state’s former insurance commissioner says needs to be done to avoid an “uninsurable future” in California?

“I’m not suggesting that we’re there yet,” he noted, “but it definitely bears paying attention to, because that’s a potential path of transmission of this risk in ways that could have negative consequences for our financial system.”

So what else should the state and federal government be doing to avoid the “uninsurable future” Jones warns about? He shared a few ideas:

  • The Federal Reserve and other federal financial regulators need to get serious about assessing the risks climate change poses to the financial system. That’s something the Fed just recently started to do, though critics say their efforts are weak and well behind other countries’ efforts.

  • State and federal leaders should invest more in forest management, especially prescribed burns. Jones said officials finally recognized that “a century and a half of fire suppression has resulted in forests choked with fuel.” Prescribed burns are key to reducing the risks of fires growing to out-of-control infernos, and Jones would like to see insurers factor such risk reduction into their assessments.

  • Most significant, Jones said, is the need to dramatically and quickly cut the human-made emissions that affect our environment.

I’m kind of dubious when financial regulators, who seem to have challenges with regulating things currently and most notably in 2008 , may take their eye off the ball to worry about the climate future.  But then perhaps that’s a feature for them, not a bug.  I wonder what regulatory work they are now not doing and whom that not-regulating might benefit?  And could there be reasons for insurance companies to err on the side of overestimating future risk?

So we need to invest more in forest management?

And to the brake..

From the Flathead Beacon (op-ed by Jim Peterson):

How else to explain the Court’s rejection of two forest restoration projects on the Kootenai National Forest in only 41 days. Judge Donald Malloy shut down the Black Ram Project on August 17 and Judge Dana Christensen’s July 7 ruling upended the Ripley Project.

Lincoln County and the State of Montana have an agreement with the U.S Forest Service to restore – via thinning and prescribed burning – up to 10,000 acres of designated Wildland Urban Interface per year to protect homes and forests from catastrophic wildfire.

Again, like last week’s post, somehow I don’t think it’s true that if NEPA practitioners cleaned up their act, then these projects would move through smoothly.  The other interesting thing is that the Kootenai Tribe supports the project:

“The Tribe supports the Black Ram project, because it protects our Ktunaxa resources, furthers restoration of Ktunaxa Territory forests and was developed through our government-to-government relationship with the United States Forest Service,” said Gary Aitken, Jr., Vice-Chairman, Kootenai Tribe of Idaho.

So even their feet on the gas doesn’t seem to matter because at the end of the day a federal judge will decide.  I hope that any settlements will involve the Tribe.

Anyway, back to the op-ed – Jim suggests arbitration instead.. it’s been around awhile as an idea.. I think it might have been in some proposed least as a pilot.  Does anyone remember what bill that was? He suggests:

Let’s nix litigation in favor of baseball-style arbitration. You bring your best ideas for protecting forests and we’ll bring ours and three qualified arbitration judges will decide which ideas best meet the goals and objectives of the Forest Service’s decadal forest planning documents. No more bad juju.


Which reminds me that I ran across this idea also from Wildlife for the 21st Century by the American Wildlife Conservation Partners.

Increase Collaboration, Reduce Litigation
* Authorize collaboration in federal land decisions and protect collaboratively based decisions from litigation. Congress;Agriculture/FS; Interior/F WS, BLM; Defense/COE
* Authorize alternative remedies to litigation, including arbitration, and limit fee reimbursement to cases of direct and personal interest as defined in the Equal Access to Justice Act. Congress; Agriculture/FWS, BLM; Defense/COE; DOJ Collaboration is the voluntary work of citizens with each other and federal agencies to develop plans and projects.
These locally driven solutions achieve buy-in from diverse stakeholders. New policy must place collaborative agreements on par with lawsuits in determining the direction of federal land conservation. Arbitration between litigants and collaborative groups can avoid costly and disruptive litigation on projects where stakeholders have already agreed upon the best approach.

Of course, the forest kinds of collaborative efforts might work for forest resilience projects, probably not so much for transmission lines, solar and wind installations, carbon capture, mines and other kinds of facilities. Still, it may be worth it for vegetation projects.

1 thought on “Foot on the Gas. Log on the Brake and.. Arbitration?”

  1. George Ochenski’s rebuttal to Jim Peterson:

    “There are a lot of things that are easy to do in this world —but challenging the federal government in court is not one of them. Given that the resources of the entire federal bureaucracy are at the disposal of the Forest Service to fight lawsuits, for plaintiffs to win is very difficult indeed.”

    “Moreover in logging projects judges must give deference to an agency’s experts in technical matters. The only way to alter that deference is with solid evidence of violation of the law. And when indisputable evidence is produced, as it was in the decisions disparaged in the column, judges absolutely have the right to enjoin agency actions and remand the project to correct its illegalities.”

    “As the old saying goes: “If you have the facts on your side, pound the facts; if you have the law on your side, pound the law; if you have neither the facts nor the law, pound the table.” In recent years — and particularly in the prosecutions of the former president — there’s one more line to add: “When you lose because you don’t have facts or law on your side, pound the judge.””

    It’s interesting that he didn’t address the arbitration idea, but I suppose space was limited. It’s a little hard to see how “arbitration judges will decide which ideas best meet the goals and objectives of the Forest Service’s decadal forest planning documents” would be an improvement in anything. And how often have you seen “stakeholders have already agreed upon the best approach?” That’s probably always true of “some” stakeholders, but never true of “all” stakeholders. Which is why we have laws and courts for them.


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