Proposed CEQ NEPA Regs: Interpretation Help Requested

I could use some help.. I’m working on comments for the Proposed CEQ NEPA regulations. Here’s a link to the redline.

Here’s what the White House said about it:

CEQ’s Bipartisan Permitting Reform Implementation Rule would modernize and accelerate environmental reviews under the National Environmental Policy Act (NEPA), encourage early community engagement, accelerate America’s clean energy future, strengthen energy security, and advance environmental justice

Sure.. doing more analysis and “accelerating environmental reviews” are the same thing (reminds me of the 2012 Planning Rule claims). Because if agencies involve the public sooner and do more analysis..everyone will agree and there won’t be litigation. And if there is successful litigation, it’s proof that those agency NEPA practitioners are doing things wrong – again. Ah.. the Circle of NEPA Life!

Anyway, the legal minds out there could really help me out by helping me understand if I am missing something. The Proposed Reg uses the term “vulnerable communities” which it doesn’t define. It also talks about “communities with environmental justice concerns.” Now conceivably, any community could have “environmental justice concerns”.. so that’s confusing to me.

The Proposed Reg does define environmental justice..

“(§1508.1 k) Environmental justice means the just treatment and meaningful involvement of all people, regardless of income, race, color, national origin, Tribal affiliation, or disability, in agency decision making and other Federal activities that affect human health and the environment so that people: (1) Are fully protected from disproportionate and adverse human health and environmental effects (including risks) and hazards, including those related to climate change, the cumulative impacts of environmental and other burdens, and the legacy of racism or other structural or systemic barriers; and (2) Have equitable access to a healthy, sustainable, and resilient environment in which to live, play, work, learn, grow, worship, and engage in cultural and subsistence practices.”

If I read this correctly, it means “all people” so that community members are “fully protected from disproportionate and adverse health and environmental effects.” So I thought about say, new transmission lines and wind facilities, even offshore wind. It seems to me that every new facility would have at least some (certainly) disproportionate and (litigatably) adverse health and environment impacts. I don’t quite understand being “fully protected from and environmental effects.. including those related to the legacy of racism or other structural or systemic barriers.”

Now as far as I can tell, the regs don’t say that agencies can’t do disproportionate things, but must analyze them in § 1502.16.

The potential for disproportionate and adverse human health and environmental effects on communities with environmental justice concerns.

Never fear, though, the Council may actually streamline some particular NEPA compliance:

§ 1506.12 Innovative approaches to NEPA reviews.

(a) The Council may authorize an innovative approach to NEPA compliance that allows an agency to comply with the Act following procedures modified from the requirements of the regulations in this subchapter, to facilitate sound and efficient environmental review for actions to address extreme environmental challenges consistent with section 101 of NEPA. Examples of extreme environmental challenges may relate to sea level rise, increased wildfire risk, or bolstering the resilience of infrastructure to increased disaster risk due to climate change; water scarcity; degraded water or air quality; disproportionate and adverse effects on communities with environmental justice concerns; imminent or reasonably foreseeable loss of historic, cultural, or Tribal resources; species loss; and impaired ecosystem health.

Note that “increased wildfire risk” is on the list.. as is the more generalized “impaired ecosystem health”. I could rationalize quite a few FS projects that way.. In fact, the FS has used existing CEQ emergency authorities on some projects.
And…”disproportionate and adverse effects on communities with environmental justice concerns” which, if I interpret correct, could be.. any community. It’s a pretty broad window. But if projects are to pass through it, they must go through two layers at least of environmental law folks, first to get the “innovative approach” and then through the courts if someone has the bucks to litigate. Also note that there is no public comment on the innovative approach, and only consultation with potential cooperating agencies.

If these regs go through, I’m hoping the FS will use “wildfire risk” to justify perhaps a regional PODs network in each Region?

There are many interesting things about this proposed reg.. but my question is “do you read it the same way?”- that any disproportionate impact (project) could lead to any community having an “environmental justice concern?”.

16 thoughts on “Proposed CEQ NEPA Regs: Interpretation Help Requested”

  1. Excellent job on this trying to make some sense out of this! I believe they have found some professional word-salad writers to produce this stuff! Same goes with what was provided on the proposed mature, old-growth rule. Why can’t they write this stuff so that an ordinary person can understand it? I mean, we are pretty knowledgeable on these topics, and it is a major effort to decipher this gobbledygook!

    Of course, they can’t just come out in plain English and say what they are thinking. It has to be couched in all of this other PC language. Back when I was doing NEPA, the intent was to write at something like a sixth-grade level. I think that was good business and it was serving the public. But what is this stuff?

      • I’d be glad to. It’s a good article that sums things up pretty well. In short, things are a mess on the Black Hills NF right now. Last spring, Jeff Tomac, who was the Forest Supervisor, was removed from his position by the Regional Forester, Frank Beum. To this day, there has not been an explanation why. People suspect, myself included, it was because he wouldn’t play ball in the overcutting of the Forest and he paid a price for that.

        Subsequently, they have had a series of Acting Forest Supervisors. The Forest has some great employees, but they are under tremendous pressure (from the RO and WO) to keep getting the cut out at levels that they can no longer produce. Everyone in the Agency knows what a mess the Black Hills is right now, and no one wants to touch it with a ten-foot pole. It’s just a sad situation and it’s not the fault of the Forest employees.

        • It seems like the Black Hills doesn’t get a lot of litigation to help motivate them. No ESA-listed wildlife species and not in the 9th Circuit probably contribute to that, but also not much public revulsion (in comparison to other places)? I mean if NFMA was about anything, it was about overcutting.

          • There are several factors in play here. To date, none of the large NGO’s have been willing to financially support a lawsuit. Not having T&E species has played a role in that. However, that has now changed with the Northern Long-Eared bat.

            A lot of the overharvesting has occurred in the back forty where it is not readily seen to the average person traveling through the Black Hills. That is changing though as they are running out of places like that, and things will get more visible in the future. There have been a number of things in NFMA that have more or less been disregarded here. The truth is, that if the Forest Service chooses to not follow some of these things, the only way to get them to make a course correction is to file a lawsuit. Asking private citizens to come up with $100,000 to get the FS to do the right thing is asking a lot.

          • As the veteran of one such case, overcutting lawsuits are tough. First off, the limit on overcutting applies only at the end of the decade after a plan is adopted. That is, NFMA allows for any particular year’s sales amount to exceed the sustained yield level so long as the decade’s total remains within the limit. In practice this means that the law can only be enforced at a decade’s endpoint, which also happens to be when a new decade begins. At that point the FS could argue that everything is reset; there’s no explicit legal requirement to make up for its excess sales from the previous decade by reducing the current decade’s sales level. Maybe that argument would carry the day; maybe not.

            More challenging is the exception for salvage sales of “timber stands which are substantially damaged by fire, windthrow, or other catastrophe, or which are in imminent danger from insect or disease attack. Salvage timber sales “may either substitute such timber for timber that would otherwise be sold under the plan or, if not feasible, sell such timber over and above the plan volume.” The law provides no guidance as to what is “feasible,” which gives a judge little to hang her hat on if the FS says “we couldn’t not sell our regular green sale volume” because of some excuse made up for litigation (oh, you say, that never happens? Ha! ha!].

            Then there’s the timber measurement accounting nightmare. Is the sustained yield limit calculated in board feet, cubic feet, weight, or a mixture of metrics? Are the sales measured in boards, cubes, tons, cords, or a mix? What conversion factors should be used, which differ by species, diameter, taper, and God knows what else. How should timber removed from unsuitable timberland be counted? How is a member of the public to know whether unit #8 of a sale was on unsuited vs. suited land? Compound these accounting challenges over a ten-year period and any litigant is faced with an uphill battle to prove the FS has violated NFMA.

            As if this all this were not tough enough, at the end of the day, should the FS fear losing such a case, it can always do a post hoc amendment to its forest plan and “depart” from sustained yield. So what would be the point in suing?

            • I appreciate your feedback. You bring up many good points. It is a tough row to hoe for the many reasons you mention. It is sad that the Forest Service in these instances, can’t simply do the right thing. NFMA is pretty clear that Forests need to manage their timber sustainably in perpetuity. If all indications are that they are overcutting, they should make the adjustments and pay the political consequences. I know that is wishful thinking, maybe fanciful thinking. I still believe that there are some leaders within the Agency that are capable of doing something like that, but they may be few and far between. Quite frankly, Randy Moore has not shown that he is capable of it. He is fully aware of what is going on, on the Black Hills and has not supported doing the right thing.

              There are some other legal options that are currently being explored. Not going directly after the overcutting issue. That’s a tough one, as you well laid out.

              • Yes, I’ve also been mystified why the FS cannot still find a way to do the right thing. I have noticed that on the O&C lands in Oregon that the BLM has inventory foresters whose job is to keep track of the inventory and to ensure that the requirement for sustained yield in the O&C act is met. I would like to think that the FS might also benefit from that (and I remember that one Forest Silviculturist I worked for used to do that), but I think that the FS still would not be able to do the right thing if the inventory forester showed something that didn’t match what leadership thought it should be.

                • There is a lot of pressure right now on the FS to produce volume. This correlates with “treated acres” which is how everyone says will save our forests from burning up. Never mind that there are a lot of ways to treat acres and some of them are not all that beneficial in reducing wildfire threats. From what I hear, the FS will not meet its timber volume sold target by a significant amount. The last thing FS leadership wants to hear, is that they have a forest that needs to reduce its cut due to sustainability issues. That doesn’t follow the narrative “we’ll cut more (and treat more acres) just give us the money”. I would say that Randy Moore will have some splaining to do when the FS doesn’t meet its target after it has been given tons of money.

                    • Maybe this was sarcasm because the Black Hills ASQ obviously has changed. ASQ/sustained yield is something that should be monitored (through new model runs based on updated data), and then used to determine if the ASQ or something else in the plan needs to be changed.

            • Thanks, Andy! This is all very helpful, I had never thought of all this.
              I’m forgetting the details, and maybe Dave remembers, but there was a court case (?) or something which caused the BH to do a forest plan amendment.. I remember our RF signing the ROD. During my time as Planning Director so that would be 2005-2012 ish. Don’t know how or if that amendment relates to all this.

              I wonder if there’s a history of all this somewhere…

              • Your memory is pretty good! There was a lawsuit around 2001 or so and the settlement of that was that the Forest had to do a plan amendment dealing with suitable habitat for various species. That resulted in a large amendment called the Phase II Amendment. In some ways it does have some overlap with today’s situation but not in a significant way.

            • I think they are on the right track by reevaluating the sustained yield, and through the revision process they will have to defend that. The Black Hills might be a great place to litigate the way the Forest Service has redefined the sustained yield limit (so that it isn’t a limit any more). You are right that there are ways to cut more than that, but I think it’s going to be harder to hide what they are proposing to do at the plan level (especially if it amounted to a departure), and adequately addressing the effects of doing that in a NEPA document. And I have to think that will have some effect at the project level.

              “How is a member of the public to know whether unit #8 of a sale was on unsuited vs. suited land?” That should be evident from the purpose and need for the project. If they are not distinguishing the purposes on suitable and unsuitable land, I think they are going to get themselves in trouble ….

  2. I hesitate to comment on this because I don’t think I understand it (either). This reminds me of “emergency procedures” that already exist and seem readily available, but the idea of giving CEQ authority to void NEPA requirements based on “extreme environmental challenges” (and the rest of this “word salad”) is pretty scary (especially when one contemplates a Trump CEQ). I think it would be hard for a court to reverse them.

    I think the key would be how they define “disproportionate effect.” Obviously, when you put a facility somewhere it affects those closest to it disproportionately. I think it should mean something else. It would make more sense to me if the question of proportionality was considered broadly, as in a pattern affecting one group of people more than another. But this wouldn’t work well in the context of a single project determination unless information about the broader pattern exists.

    That gets to the question of what groups (“vulnerable communities”) could trigger environmental justice concerns. I don’t think it’s “any community.” The proposal lists “income, race, color, national origin, Tribal affiliation, or disability.” When they refer to “communities,” I think they should be referring to these groupings rather than to a physical place made up of a mix of these groupings. Any physical community could include groups for which there might be environmental justice concerns (which again should be viewed across physical communities at a broader scale). When it refers to “all” people, I believe it assumes that the non-listed groups are already getting these benefits (disproportionately).


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