Here’s the link to Hannah’s paper:
Large and destructive wildfires are becoming more common across the West. Although several factors contribute to this trend, the declining health of our nation’s forests is a primary cause. Our forests are filled with excess dead and dying trees, brush, and other fuels—to the point where an area larger than the state of California is in need of restoration. Removing those fuels through mechanical thinning and prescribed fire are urgently needed to reduce wildfire damage and promote forest resilience. A new meta-analysis published in the journal Forest Ecology and Management found that combining mechanical thinning with prescribed burns reduces the severity of subsequent wildfires in an area by 62-72 percent.
The Forest Service heavily depends on categorical exclusions to help get work done. In an appearance before the U.S. House Natural Resources Committee earlier this month, Forest Service Chief Randy Moore emphasized that 87 percent of the agency’s NEPA compliance is done through categorical exclusions.
To be fair, we need to compare apples (fuels projects) to apples, not oranges (CE’s for administrative site renovations or renewing outfitter guide permits or…)
The Lawsuit
Recently, however, the Ninth Circuit Court of Appeals—which oversees Montana and other Western states—ruled to limit the use of categorical exclusions. In Friends of the Inyo v. United States Forest Service the Court held that the Forest Service cannot use categorical exclusions to approve a project unless the entire project fits in a single categorical exclusion. This decision could severely hamper the Service’s ability to conduct forest restoration work as the agency routinely cites multiple categorical exclusions for bigger projects that combine more or more needed actions.
The Impact
Amidst current frustrations over how slow forest restoration activities take place, the process will get even more cumbersome and tangled with this new ruling. For example, PERC researchers found it takes an average of 3.6 years for treatment to begin on a prescribed burn project when a CE is issued. This timeframe extends to 5.6 years when an Environmental Assessment (EA) is conducted and further increases to 7.2 years when an Environmental Impact Statement (EIS) is used. Without the use of CEs, our forests face a significant risk of being destroyed in catastrophic fires while awaiting for a project approval.
Conclusion
The hopeful news is that policymakers in Congress are working to expand the benefits of categorical exclusions. The Farm Bill proposal from the House of Representatives includes policies to expand categorical exclusions focused on healthy forests and reduced wildfire risk to 10,000 acres. The bipartisan Fix Our Forests Act would similarly expand categorical exclusions and reduce litigation over forest projects.
Here’s what Fix Our Forests Act says about litigation reform (sorry about the formatting).
(a) IN GENERAL .—A court shall not enjoin a fireshed3
management project if the court determines that the plain-4
tiff is unable to demonstrate that the claim of the plaintiff5
is likely to succeed on the merits.6
(b) BALANCING SHORT – AND LONG -TERM EFFECTS7
OF FIRESHED MANAGEMENT ACTIVITIES IN CONSID -8
ERING INJUNCTIVE RELIEF .—As part of its weighing the9
equities while considering any request for an injunction10
that applies to any agency action as part of a fireshed11
management project, the court reviewing the agency ac-12
tion shall balance the impact to the ecosystem likely af-13
fected by the fireshed management project of—14
(1) the short- and long-term effects of under-15
taking the agency action; against16
(2) the short- and long-term effects of not un-17
dertaking the action.18
(c) LIMITATIONS FOR INJUNCTIVE RELIEF AND RE -19
MAND .—20
(1) IN GENERAL .—Notwithstanding any other21
provision of law, a court shall not vacate or other-22
wise limit, delay, stay, or enjoin a fireshed manage-23
ment project unless the court determines that—24
36
(A) the fireshed management project will1
pose a risk of a proximate and substantial envi-2
ronmental harm; and3
(B) there is no other equitable remedy4
available as a matter of law.5
(2) R EMAND .—6
(A) IN GENERAL .—Notwithstanding any7
other provision of law, if a court determines8
that a fireshed management project will not9
pose a risk of a proximate and substantial envi-10
ronmental harm—11
(i) the court may remand the fireshed12
management project to the applicable13
agency with instruction to correct (includ-14
ing specific directions) the errors or defi-15
ciencies within 180 days; and16
(ii) an activity under the fireshed17
management project may be carried out so18
long as such activity does not affect the er-19
rors or deficiencies described in clause (i).20
(B) REVIEW .—Unless the court finds that21
the applicable agency entirely failed to prepare22
a required environmental assessment or envi-23
ronmental impact statement, on remand—24
37
(i) the court shall not require such1
agency to prepare a new environmental as-2
sessment or environmental impact state-3
ment; and4
(ii) such agency may use another for-5
mat, including a memorandum or errata6
sheet, to document any new analysis re-7
quired.8
(d) LIMITATIONS ON CLAIMS .—Notwithstanding any9
other provision of law, a claim arising under Federal law10
seeking judicial review of a fireshed management project11
shall be barred unless—12
(1) with respect to an agency document noticed13
in the Federal Register, such claim is filed not later14
than 120 days after the date of publication of a no-15
tice in the Federal Register of agency intent to carry16
out the fireshed management project, unless a short-17
er period is specified in such Federal law;18
(2) in the case of an agency document not de-19
scribed in paragraph (1), such claim is filed not20
later than 120 days after the date that is the earlier21
of—22
(A) the date on which such agency docu-23
ment is published; and24
(B) the date on which such agency docu-1
ment is noticed; and2
(3) in the case of an authorization or action for3
which there was a public comment period, such4
claim—5
(A) is filed by a party that—6
(i) participated in the administrative7
proceedings regarding such fireshed man-8
agement project; and9
(ii) submitted a comment during such10
public comment period and such comment11
was sufficiently detailed to put the applica-12
ble agency on notice of the issue upon13
which the party seeks judicial review; and14
(B) is related to such comment.15
(e) DEFINITIONS .—In this section:16
(1) AGENCY DOCUMENT .—The term ‘‘agency17
document’’ means, with respect to a fireshed man-18
agement project, a record of decision, categorical ex-19
clusion, environmental document, or programmatic20
environmental document.21
(2) NEPA TERMS .—The terms ‘‘categorical ex-22
clusion’’, ‘‘environmental document’’, and ‘‘pro-23
grammatic environmental document’’ have the mean-24
ings given such terms, respectively, in section 111 of
the National Environmental Policy Act of 1969 (421
U.S.C. 4336e).