We’ve been following the Fix our Forests Act. Nick Smith posted an article in the Durango Herald that I think is worth taking a look at. There seems to be a repeated statement that implies that CEs are not part of NEPA, which kind of implies that only EAs and EIS’s are “real NEPA.” Unfortunately, no NEPA person was interviewed other than John Rader of the San Juan Citizens Alliance.
But newly proposed changes, now in the form of legislation that would let fuel mitigation projects, including logging, in high-risk zones like the forest surrounding Durango skirt the public input process have some environmental groups up in arms.
The Fix Our Forests Act is an attempt to “undermine public process and judicial review,” said John Rader, an attorney and the Public Lands Program manager at the Durango-based San Juan Citizens Alliance.
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In those areas, of up to 10,000 acres (which includes a swath of the San Juan National Forest north of Durango), the bill outlines a slate of vegetation management tactics that would be exempt from the scrutinous review prescribed in the National Environmental Policy Act.
I feel like a broken record. CEs are a part of NEPA. CE’s are a part of NEPA. I think it would be more correct to say “currently CEs are allowed for up to 4K (or whatever).
But, he pointed out, whether a forest is best treated by logging, mastication, prescribed fire or some other method, is a question asked in the early stages of the NEPA process.
“That’s the initial stages of NEPA, right?” Kimple said. “Where are we? What does this look like? Where are we in proximity to values?”
And there are already some 650,000 acres of national forest approved through NEPA and ready to burn, the SJNF told the Herald in 2023. The Forest Service treated 25,000 acres last year, meaning it’s likely to take many years to burn all acreage that has already been approved.
Although new prescribed fire plans would be exempt from NEPA review, it is fears of unchecked logging projects and heavy livestock grazing nationwide that has environmental groups concerned that the bill is a Trojan horse masquerading as wildfire hazard mitigation.
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CEs are not “exempt from NEPA review.”
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“It’s kind of the template to erase all these environmental protections in the name of creating more wildfire protection,” he said.
By exempting projects from NEPA review, the Fix Our Forests Act would keep the public in the dark, Rader fears, while fast-tracking projects that could be detrimental to the natural environment.
“Every step of the way, it’s cutting out public input and keeping the public from being informed about the details of these projects,” he said.
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Rather than the traditional NEPA public input process – a lengthy undertaking that can take years to complete – the Fix Our Forests Act would establish a far quicker public comment review timeline and radically overhaul how those projects are subject to legal scrutiny. The bill contains a “common sense litigation reform” provision that limits public comment to a 120-day period with the intention of reducing frivolous lawsuits.
Rader warns this “really insidious” provision could have the opposite effect, arguing that the shot-clock may increase the proportion of poorly prepared lawsuits.
Not sure that would be the FS’s, DOJ’s, or the public’s problem.
Forest Service CEs are required to have scoping (public input). They are also required to review extraordinary circumstances and follow standards in the forest plan, which had an EIS associated with it. On the other hand, EAs have alternatives (although in some conditions, only one no action) and an additional process of objections.
An interesting question might be the value of the objection process compared to the costs associated with dealing with them (in our Region in the past, these were run out of the RO by siphoning off talent from forests, which would have a host of opportunity costs). I’d think that some academic group might want to take a sample of CEs and EAs for fuels projects of similar size and nature (prescribed fire vs. mechanical thinning) and compare the timelines, expenses, and value added by the additional analysis (if any) and process.
Previous iterations of streamlining have included putting requirements on the use of CEs such as HFRA requiring projects to be in a certain condition class and be part of a collaborative effort. If I were a group who was concerned about public input, I’d work with the Congressional staff to standardize what is in the scoping document and timeframes for scoping, or other ideas to improve that aspect of public involvement during the use of CEs. Especially with changes to the CEQ regulations, at some point the agency NEPA regs would be updated, so this would be a chance for folks to review the current use of CE’s, which is widespread, and instead of saying “they’re not NEPA, and they’re bad”, work on how to improve their use.
Categorical exclusions were poorly named and have led to wide-spread public confusion that they “except” or “exclude” certain actions form NEPA. As Sharon points out that is incorrect. In my experience, as a policymaker at Interior, developing a CE/CX is a well-vetted process. In summary, it begins with looking at a defined category of action – forest treatments under x acres- analyzing existing NEPA documents for that category on how frequently the conclusion of the EA process was a FONSI. Reaching out to BLM Field Offices. The Department then proposed the described CX to CEQ for their approval. The policy point on CXs is that the agency has conducted NEPA many times on the same category of action with the same FONSI result. It is inefficient and not required by NEPA to conduct EAs anticipating the same result. That is why NEPA includes categorical exclusions. Extraordinary circumstances review is the backstop. The vast majority of NEPA compliance is through CEs.
Completely agree.
With respect to the 120-day limitation in FOFA, here’s how the actual provision reads:
(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;
https://www.congress.gov/bill/119th-congress/house-bill/471/text#H287FEA68F3E74A1BA23FD1FBA7B006E5
In light of this language, here are a couple of observations:
o I think what Rader was probably trying to say in his last quote in the article was that the 120-day time limit would result in more lawsuits rather than fewer, because would-be litigants would have less time to assess the strength of their cases before filing. That would indeed be the FS’ problem if it were true, but I doubt it. Contrary to the impression some may have, most environmental groups are not flush with cash – I doubt there is a vast untapped reservoir of litigation energy out there, because that would require a vast untapped reservoir of money. (And no, EAJA is not relevant here, because that only helps recover costs already incurred.)
o Assuming, as I do, that the 120-day filing limit would reduce the number of lawsuits filed, that might also reduce the volume of objections, since a principal incentive for filing objections is to preserve issues for litigation.
Rich, I agree that “most environmental groups are not flush with cash” but the ones I frequently see as litigants, Sierra Club, Center for Biological Diversity, Earthjustice, NRDC seem to have some bucks for litigation. It also looks to me like the 120 day time limit is only for CE projects that meet the specific requirements (in firesheds, etc.) and CE’s don’t have objections do they? That’s one reason they save time.
Here’s what CE actually means: “categorically excluded from documentation in an environmental assessment or environmental impact statement.” And the inference is that it excludes the level of public participation associated with those processes. It is correct that the objection regulations at 36 CFR §218 do not provide for objections to decisions based on CEs.
You could also argue that EA’s “exclude the level of public participation associated with EIS’s”. Suppose the scoping notice for a CE has a high degree of specificity as to where and what. Then people comment. I have seen response to comments in CE documentation. For an EA, in some cases (HFRA?) only requiring one alternative the no- action alternative, for the FS (whose NEPA regs require scoping) they scope it more vaguely, and then have public comment on the proposed alternative, described in as much detail as the CE scoping.
So to me, public involvement can actually be quite similar between an EA and a CE. It depends on a) the degree of specificity presented to the public and b) how exactly the public is informed (basically what lists are used), and c) how many bites at the public comment apple are granted.
There’s a difference between “can” and “shall,” and you can’t really do a comparison based on what “might” happen. And there’s this:
Ҥ 218.23 Proposed projects and activities not subject to legal notice and opportunity to comment.
The legal notice and opportunity to comment procedures of this subpart do not apply to:
(a) Any project or activity categorically excluded from documentation in an environmental assessment or environmental impact statement.
I was talking about scoping being a public involvement process and it is required when CEs are used. Certainly people have the opportunity to comment during scoping..
https://www.fs.usda.gov/about-agency/regulations-policies/handbook/190915-30-categorical-exclusion-documentation
“31.3 – Scoping
If the responsible official determines, based on scoping, that it is
uncertain whether the proposed action may have a significant effect on
the environment, prepare an EA. If the responsible official determines,
based on scoping, that the proposed action may have a significant
environmental effect, prepare an EIS.
(36 CFR 220.6(c))
Scoping is required for all Forest Service proposed actions, including those that
would appear to be categorically excluded (section 11). Scoping is important to
discover information that could point to the need for an EA or EIS versus a CE.
Scoping is the means to identify the presence or absence of any extraordinary
circumstances that would warrant further documentation in an EA or EIS. Scoping
should also reveal any past, present, or reasonably foreseeable future actions with
the potential to create uncertainty over the significance of cumulative effects.
Scoping complexity should be commensurate with project complexity.
The flow chart at section 11.6, exhibit 01, shows how scoping can be applied in the
CE process to help determine at an early point whether the use of a CE is
appropriate.”
So a CE has one required public participation opportunity and an EA/EIS two or more. Moreover, the comments beyond the scoping stage are informed by more information from the EA/EIS (a “hard look” is legally required). I agree with the criticism that CEs are not required to provide the same level of public participation.
My point was that instead of saying CEs are bad, another point of view is that “if public participation is a problem, then why not propose amendments to FOF that directly address that question? ” Specifically, a required round of public comment-post scoping for certain CEs? There are plenty of specific requirements for some CEs already, including collaboration for some of them.
If that is their real concern with FOF CE’s, then it seems the solution is simple.
Unless one of the goals is to do things faster/cheaper and therefore reduce public participation.
“CEs are part of NEPA” is like saying “A penny is part of a dollar.” It’s true but rather misleading.
Not only do CE’s get very limited analysis of alternatives, effects, and trade-offs, but they also have lousy public involvment, and no opportunity for objections. The simultaneous expansion of CEs and the elimination of objections is a real travesty.
I’d like to stick to things that are true and we can jointly agree or disagree on whether they are misleading. But can we go deeper? I’ve seen many objections and prior to that appeals. What exactly is it about objections that is important to you? I’ve sat in on many appeal reviews and read many objection meeting notes. Is it just another bite at the apple? Or is there something special about the process?