Help from the lawyers at TSW would be greatly appreciated for this section.
SEC. 121. Commonsense litigation reform.
(a) In general.—A court shall not enjoin a covered agency action if the court determines that the plaintiff is unable to demonstrate that the claim of the plaintiff is likely to succeed on the merits.
Maybe our legal friends can help us understand here, 1) what, if any criteria do judges use now? 2) Does this make extra work for judges (would they have to come to a pre-decision and do more work?)
(b) Balancing short-and long-term effects of covered agency action in considering injunctive relief.—As part of its weighing the equities while considering any request for an injunction that applies to a covered agency action, the court reviewing such action shall balance the impact to the ecosystem likely affected by such action of—
(1) the short- and long-term effects of undertaking such action; against
(2) the short- and long-term effects of not undertaking such action.
I don’t know how this will help.. some judges will think cutting trees is bad and wildfires won’t happen while the project is enjoined, and others think the other way. Judges, who are lawyers, tend to write really well, and will be describe quite eloquently how their decisions fit this requirement. Plus they make take some separation of powers umbrage, which I don’t think will help. Judges are, after all, necessarily human.
(c) Limitations on judicial review.—
(1) IN GENERAL.—Notwithstanding any other provision of law (except this section), in the case of a claim arising under Federal law seeking judicial review of a covered agency action—
(A) a court shall not hold unlawful, set aside, or otherwise limit, delay, stay, vacate, or enjoin such agency action unless the court determines that—
(i) such action poses or will pose a risk of a proximate and substantial environmental harm; and
(ii) there is no other equitable remedy available as a matter of law; and
(B) if a court determines that subparagraph (A) does not apply to the covered agency action the only remedy the court may order with regard to such agency action is to remand the matter to the agency with instructions to, during the 180-day period beginning on the date of the order, take such additional actions as may be necessary to redress any legal wrong suffered by, or adverse effect on, the plaintiff, except such additional actions may not include the preparation of a new agency document unless the court finds the agency was required and failed to prepare such agency document.
(2) EFFECT OF REMAND.—In the case of a covered agency action to which paragraph (1)(B) applies, the agency may—
(A) continue to carry out such agency action to the extent the action does not impact the additional actions required pursuant to such paragraph; and
(B) if the agency action relates to an agency document, use any format to correct such document (including a supplemental environmental document, memorandum, or errata sheet).
This seems to be about “when courts determine that something needs to be done with the document, just fix it don’t do a new document (unless..)”. This seems, together with the 180 day agency requirement, it would help with “you didn’t do this”, FS issues new doc, “you didn’t do that” recursive court cases, which are probably just as annoying for judges and their workload as for the agency.
(d) Limitations on claims.—Notwithstanding any other provision of law (except this section), a claim arising under Federal law seeking judicial review of a covered agency action shall be barred unless—
(1) with respect to an agency document or the application of a categorical exclusion noticed in the Federal Register, such claim is filed not later than 120 days after the date of publication of a notice in the Federal Register of agency intent to carry out the fireshed management project relating to such agency document or application, unless a shorter period is specified in such Federal law;
(2) in the case of an agency document or the application of a categorical exclusion not described in paragraph (1), such claim is filed not later than 120 days after the date that is the earlier of—
(A) the date on which such agency document or application is published; and
(B) the date on which such agency document or application is noticed; and
(3) in the case of a covered agency action for which there was a public comment period, such claim—
(A) is filed by a party that—
(i) participated in the administrative proceedings regarding the fireshed management project relating to such action; and
(ii) submitted a comment during such public comment period and such comment was sufficiently detailed to put the applicable agency on notice of the issue upon which the party seeks judicial review; and
(B) is related to such comment.
The time limit seems useful since this says that the party filing the claim must have participated in the administrative proceedings and submitted a comment. This also streamlines the process such that it requires the plaintiffs to have specific claims related to previous concerns. This signals to the agency what the real issues are. Perhaps it would relieve plaintiffs of writing “kitchen-sinkery” complaints?
(e) Definitions.—ln this section:
(1) AGENCY DOCUMENT.—The term “agency document” means, with respect to a fireshed management project, a record of decision, environmental document, or programmatic environmental document.
(2) COVERED AGENCY ACTION.—The term “covered agency action” means—
(A) the establishment of a fireshed management project by an agency;
(B) the application of a categorical exclusion to a fireshed management project;
(C) the preparation of any agency document for a fireshed management project; or
(D) any other agency action as part of a fireshed management project.
(3) NEPA TERMS.—The terms “categorical exclusion”, “environmental document”, and “programmatic environmental document” have the meanings given such terms, respectively, in section 111 of the National Environmental Policy Act of 1969 (42 U.S.C. 4336e).
In general terms, it’s an effort by one or more federal lawmakers to trim the sails of the Luddite-industrial complex and its endless public-lands lawsuits seeking to block anything and everything.
Who has introduced this legislation? Because the Luddite-industrial complex is a key component of the Democrats’ base of support, it is unlikely to advance in the Senate. Sen. Schumer will block it.
I was on a call with a House D staffer and asked how they got the 55 Ds on board. He said “talking to them and giving them their side of the story”. Ironically, the D cosponsor is from San Diego, so the “it’s all the timber industry” did not work as an argument. When I think about “who would go in and make the supportive argument” I realize that where there is no timber industry, there is no one to show up and support the bill, except maybe folks who want the bucks.
That might be Rep. Scott Peters (D-San Diego), who’s one of the more moderate House Democrats. I am impressed that 55 Democrats support this legislation, if that figure is accurate. The contradictions and hypocrisies of the Luddite-industrial complex may, albeit years later than one would wish, finally be having an impact on some Democrats.
Like I said in another post, it would be interesting to map the Districts of the supporters. I was hoping the Students here would do that. Perhaps there are no students 🙁
As far as I can tell all the D cosponsors are from Calif. https://www.congress.gov/bill/118th-congress/house-bill/8790/cosponsors
I found the vote here https://clerk.house.gov/Votes/2024448
It’s pretty interesting.. D from Mass yea, D from Vermont nay, D’s from Oregon all nay..
The California delegation’s support for the bill may be related to the massive wildfire-related losses that PG&E has suffered (and will presumably continue to suffer).
“Finally, a significant risk to communities remains hazard trees
within utility rights-of-way. The largest single wildfire in California
state history, the Dixie Fire, ignited when a tree fell onto
electrical lines.61 Instances mentioned above, including the Maui
and Texas fires, have also been linked to downed utility lines. Title
II strengthens existing expedited authorities with respect to rights of-
ways to allow the clearing of hazard trees within 150 feet of utility
lines instead of just 10 feet. This bill also requires automatic
approval of vegetation management plans submitted by electric
utility companies after a certain period and creates a new categorical
exclusion to expedite activities under a vegetation management,
facility inspection, and operation and maintenance plan.
These policies will help utilities address hazardous fuels in rightsof-
ways to significantly reduce the threat of a catastrophic wildfire
to nearby communities.”
https://www.congress.gov/118/crpt/hrpt674/CRPT-118hrpt674.pdf at 29.
Yes, that’s my next post! Interesting that Calif has many power line fires Oregon not so much.
Hi Sharon: I think it’s a “deep pockets” issue for lawyers to decide. These predicted “mega fires” of the past 30 years were easy to anticipate because of one factor: massive fuel build-ups on federal lands with documented histories of catastrophic wildfires. Ignition is either lightning or people or, occasionally, volcanoes, but depends entirely on fuel, topography, and weather for growth. Of the three, only fuel can be controlled.
The railroad was successfully sued for a wildfire by the City of Portland several years ago for a fire that I helped document with videotape showing the fire actually started from an illegal campfire and had nothing to do with the railroad.
You can’t sue the USFS, so folks get money where they can, and California utilities seemingly pay more: https://yachatsnews.com/pacificorp-and-many-victims-of-2020-echo-mountain-wildfire-in-otis-settle-claims-for-178-million/
Executive Office of the President- Office of Management and Budget issued a STATEMENT OF ADMINISTRATION POLICY on 23rd that “The administration appreciates that several provisions of H.R. 8790 align with recommendations released last year from the wildland fire mitigation and management commission… H.R. 8790, however, also contains a number of provisions that would undermine basic protections for communities, lands, waters, and wildlife; reduce opportunities for public input; and heighten the likelihood for conflict, litigation, and delay on needed forest restoration and resilience work. The administration therefore strongly opposes this bill.”
Thanks for finding this. The rumor mill says that the Admin position is not the FS’s natural position.
Everytime I say.. “OK what exactly do you get out of a CE that is different from an EA and can we build that into requirements?” Folks on the “undermine basic protections” side won’t engage. It would be an interesting discussion. So what is really wrong with what provisions?
With respect to section 121(a),
To obtain a preliminary injunction, a plaintiff must establish “[1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20 (2008).
The 9th Circuit at one time (and perhaps it still does this) would weigh all four factors, and if factors 2-4 strongly favored an injunction, a district court might issue one even if the likelihood of success on the merits was a close question. Section 121(a) would prevent courts from using that sort of overall balancing test in cases involving covered agency actions.
In theory this would save judicial time since the judge would only need to look at one factor. But if the merits question is a difficult one, this language would force a judge to spend more time analyzing it. I would guess, from a judicial resources standpoint, this language would be a wash. Indeed, in circuits outside the 9th, it might have little effect since I believe the other circuits used the overall balancing approach less (if at all).
With respect to section 121(b), language like this has appeared in various bills since (I think) the 1990s. I think it stems from proposed logging projects that would have adversely affected spotted owl habitat (in the short term) but (the agency argued) protect owl habitat from future fires (in the long term). Courts were not generally sympathetic to this argument, considering the long-term argument to be too speculative. Section 121(b) would force judges to take the long-term argument more seriously, although I agree that the new language would not itself dictate a particular outcome.
(I’m being deliberately vague using the the term “the agency” – I don’t remember if this issue first arose with FS, BLM, or both. It’s also possible that the owl originally at issue was the CASPO – so take all of this with salt!)
Rich J, thanks for all this illuminating information! Please explain what is meant by “balance of equities” that could mean a variety of things.
Hmm. Courts think that future wildfires are too speculative.. interesting. I followed some cases in which courts thought the BLM didn’t look enough into long-term effects of a project on climate change.. lots of speculation there!
Good point. But I think the difference is speculation about a particular event occurring in a particular location (fire) vs effects in the NEPA analysis (which is necessary for what is “reasonably foreseeable”).
“Balancing equities” is about what is fair, after considering the actions of and effects on the parties, and you are right that this can be pretty subjective.
“Balance of equities” can indeed mean a variety of things!
So there is no fixed definition. The term “equity” is a vestige of English common law. Back in the medieval day most suits between private parties (think feuding nobles or merchants) were for money damages – these suits were termed to be suits “in law.” But not every private dispute can be solved with money damages.
For example, if Duke of Blowhard has occupied Earl of Windbag’s pasture, money damages don’t remedy the Earl’s harm – he doesn’t need the money, he needs that valley to graze his sheep. So the Earl would bring a suit “in equity” – a suit that seeks an injunction to force the Duke off the land claimed by the Earl. The court would then evaluate the facts and circumstances in a fairly free-form way and craft an order that could be a complete wiin for either party or something in between.
Judges evolved this “equity” idea slowly – in the middle ages documents (like land titles) were notoriously forgeable and violence was always near the surface. Balancing the interests of the Duke and the Earl was the best way for the judge to ensure that he would live to hear the next case (and not issue a ruling that would inadvertently disturb the King’s peace).
This idea – that two opposing litigants often both have a point – has survived to the present day as the “balance of equities” test. It is perhaps better characterized (and often is) as “balance of harms.” Given that, in order to obtain an injunction a plaintiff must already establish that it will suffer “irreperable harm,” the “balance of harms” test then requires the court to look at the injury to the government if the injunction is issued. But, as you suggest, this evaluation of harms is often at least somewhat subjective.
Here are a couple of cases illustrating the balance of equities.
https://casetext.com/case/earth-island-inst-v-muldoon-5
https://casetext.com/case/envtl-prot-info-ctr-v-carlson-1
In both cases, environmental plaintiffs establish that failure to issue an injunction against a veg management project will result in irreperable harm. (In logging cases, this isn’t hard to achieve – a tree, once made horizontal, cannot be made vertical again). But in the first case, the court holds that the harm of issuing an injunction (delaying a Park Service project that would make future firefighters in the area safer) clearly outweighed the recrational harm suffered by the plaintiffs.
In the second case, the court strikes the opposite balance. This is probably because the court also held that the Forest Service had attempted to use an inapplicable CE for the project at issue. The court seemed to believe that the Forest Service could well have achieved its stated safety aims with a smaller project that would have fit within the CE.
And re: the long-term issue, it’s not that courts don’t believe that fire will happen, but they (or at least those that are skeptical) do not think the relevant administrative record establishes the likelihood that an owl-habitat-destroying fire will occur in the project area. This is a special case of the more general difficulty the agencies have had in establishing that fuel treatment projects are cost-beneficial. I suspect (though cannot document) that courts will gradually move at least somewhat away from this position as large and costly fires continue to become more prominent in general public discourse.
Thanks for all the coverage, Sharon.
“What do we get from and EA that we don’t find in a CE?” Maybe we build these attributes into improved mechanisms?
My instinctual response to that is that, which harkens back to the acreage limitation, is that an EA would ideally capture any impact management might have on broad ecological functions/connectivity that the specialist (and motivated public) consulted through EA/EIS would be able to analyze. In short, doing the same thing just on more acres, could be ignoring complexity that is relevant on the scale of +10000 acres, but not at +1200 acres.
Overall, I think this is an insightful line of questioning. For me, it highlights an unspoken reality of the cultural divide around public land management. Unfortunately, NEPA analysis is often a time/convenience hurdle, which doesn’t actually reveal new insights, because it doesn’t leverage high-resolution datasets or scientifically rigorous modeling.
Nevertheless, NEPA is still an essential mechanism. To put it bluntly “Let’s move arbitrarily slow, that way we don’t move too much”. Given past management and fire suppression, no action is a foregone alternative. Still, the scale of variability and complexity in a project area requires so much more data and analysis than managers have available to them today, and so “moving slow” has become a low-tech surrogate for “right action”.
Maybe it’s in the Fix Our Forests bill, but I would like to see investment in technology related to data acquisition and analysis. I think this is an under appreciated facet of the problem. To build consensus, I think we need more analysis, not less. I also don’t think more analysis necessarily means moving slower. More data and more analysis tech, also means more opportunities for automation.
Wyatt, you raise some really good questions. As for me, I would like to see some examples of specific things that are different at 10K acres, especially since the larger projects wouldn’t be all done at once. I completely understand species issues (that’s why there’s wildlife biologists), connectivity, and what we might call “podliness” or the need for PODs to link up. My assumption would be that that would be considered. Maybe require the CE documentation to address those?
I wonder also if you could be more specific about “it doesn’t leverage high-resolution datasets or scientifically rigorous modeling. ” I think we actually know a great deal about how forests grow, respond to standard treatments, and the impacts. Have models and high resolution data yielded information that has led to greater knowledge? When and where?
I guess I come from a place where “models have grown more and more complex but we still have an idea what happens when you thin trees and what habitat wildfire likes, that losing veg cover leads to sedimentation and so on.”
Of course my idea of doing forest plan amendments EISs with PODs and project and maintenance analysis might take care of some of your concerns.
Yes, Fix our Forests has the opportunity to siphon megabucks toward NOAA and NASA ish data collection and analysis. On the other hand, the Sequoia paid to have wildlife surveys all over the forest so that data is available for planning.
Also, when I interviewed Jason Kuiken the Forest Supe on the Sequoia, he did say some modeling was helpful in developing the landscape scale projects. It might be interesting to go back and get more detail.
I thought that CEs were supposed to streamline projects that had small expected impacts, which could be mitigated and/or accepted. “More Analysis” is what the Feds want to avoid, on projects which fit into existing categories. If the projects don’t fit, in your opinion, I guess there are legal paths for you to explore.
Many projects might include huge acreages of non-commercial fuels work, with some thinning units scattered within the project area. Maybe there are also some pockets of timber within a fuels unit. The amount of acres in a project like that doesn’t really matter, as long as it fits within the CE. I’m not saying there aren’t any impacts, due solely to the size of the project. Those projects’ negative impacts are short-lived and not significantly consequential.
The latest in a series that seems to be Westerman’s primary job, but I would go with “none of the NEPA provisions would last in the Senate.” A few thoughts …
“shall balance the impact to the ecosystem likely affected by such action of—
(1) the short- and long-term effects of undertaking such action; against
(2) the short- and long-term effects of not undertaking such action.”
If this is a CE, there is no analysis of the short- and long-term effects, so these “facts” will be entirely up to the “expertise” (not) of the judges, not just their opinion of the equities resulting from the facts. I’d call this a fatal flaw. (Conversely, if they have done this effects analysis of action and no-action, it’s basically an EA, and it should be made available for public review and comment.)
“such additional actions may not include the preparation of a new agency document unless the court finds the agency was required and failed to prepare such agency document.”
Usually on remand, the requirement is to correct or add analysis and documentation. So, if on remand, the agency itself discovers new information, or that it made a mistake, it must essentially not tell anyone about it?
“Perhaps it would relieve plaintiffs of writing “kitchen-sinkery” complaints?”
Courts already apply the principle of exhaustion of administrative remedies, which requires that a party to a lawsuit has pointed out the issue to the agency in whatever agency proceedings were available. It’s not obvious to me what this would change.