TSW Request for Information: Examples of Agency Decisions Affected By Litigation Avoidance

As I’ve mentioned, I’ve been talking with some folks in the “permitting reform” space.  Which is where the larger world, those interested in renewable and transmission build-outs, seek policy changes to honor environmental and public review, but also speed things up, in the interests of dealing with climate crises and emissions reduction timelines.  We have plenty of real-world experience, which may or may not be relevant, since vegetation management projects are different in many ways than infrastructure projects.

Here’s the question:

Do you know of any example where a federal agency chose an action they knew was suboptimal because they wanted to avoid litigation? It seems apparent that they do this frequently but it’s very difficult to find documented examples. Is there an example of a forest treatment project getting pared down to avoid litigation even though the agency believed a larger project would be more effective?”

I told the questioner that suboptimality is in the eye of the beholder.  He was interested in “examples where informed officials have to make a choice they believe is suboptimal to avoid litigation.”  I remember that Don Yasuda mentioned something like that about controversial-ness causing units to be dropped in the Sierra (sadly his powerpoint is no longer) in this 2017 post.  For those of you following our managed fire discussion, one bullet was “we’ll use more prescribed fire and managed wildfire”  because.. mechanical fuel treatments (for a number of reasons he outlined) are too difficult.

The key thing here is “suboptimal.”  Certainly groups with litigation arms and histories can propose considerations and changes that make projects better.

4 thoughts on “TSW Request for Information: Examples of Agency Decisions Affected By Litigation Avoidance”

  1. The other part of this is the meaning of “avoid litigation.” Is this about not breaking the law (a change in the decision to avoid violating a substantive requirement), or is it about the degree of opposition (which would include the above plus legal attacks on the process)? Also, how would we know whether changes in agency decisions are the result of legal risks or just response to public comments? It’s common to see decision-makers cite the latter for paring down a project, but I’d be surprised to see any “documented examples” of the former. If this question is mostly about how to avoid resistance, my suggestion would be look for the path of the least of it – using a front-end strategic planning process.

  2. Many times I have seen a forest propose a reforestation/release project or a fuels reduction project that should have proposed the use of herbicides but has not. The ‘controversy’ and fear of appeal/litigation in many cases will steer decision makers away from making any decision that includes herbicide use, even when it can be proven that herbicide use is essential for success or in order to meet the purpose and need of the project. I have seen this many times over my career.

  3. I would term it risk avoidance, not necessarily litigation avoidance. The conversations at the public Northwest Forest Plan Amendment FACA meetings bring this up – and look for ways to not give managers a choice that helps them avoid risk – the cumulative effect of this risk avoidance has been a lack of treatment where it is needed on the landscape – and the resulting fires, loss of old-growth forest, impacts on communities have been severe in some cases. When you are evaluated based on outputs (like cubic feet and acres) and faced with a static or declining budget, the highest priority projects are not always carried out in the desire to meet short-term targets and stay within your budget.


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