Recently there’s been some discussion about the use of ESD and whether it is really an emergency, and whether interpretations are due to the Trump Admin. Now I recall Chris French at some hearing or other telling Congress that they were using that authority during the Biden Admin in the Sierra (that is the mountain range, not the Forest although the Forest is included). I also posted about it last spring when the Sec expanded the area, here and here. In the latter, we even had a great discussion (thanks to legal friends) about injunctive relief standards (!).
Our more partisan friends are asking us to believe that it was good and appropriate for the FS under Sec. Vilsack to use this authority; it was wrong for the current Sec to expand those acres. It seems to me that there are two legal issues then..
Did the Sec inappropriately expand?
Is the FS following the law?
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But maybe not.. I’m not the lawyer here. Fortunately, the lawyers among us can weigh in.
So let’s go back to the statute that gave ESDs as we understand them, the IIJA.
As folks know, I am not the greatest at Congressional workings, so please correct me if I got this wrong. Here is the Senate vote on IIJA. Note that the nays were all R’s.
The sponsor in the House appeared to be Pete DeFazio (D OR). I’m not too sure about their last votes on the Senate bill and what they mean, but when it left the House it was a very one-sided vote by Ds. Now it’s possible that the ESD language was an amendment required to get some R votes in the Senate and maybe someone out there knows whether that’s the case. But that goes back to “if you are on record as voting for something, does that count as support in any way?”
Often here at TSW we can fall into holes unnecessarily by mixing up plain English, technical terms of various sciences and practitioners, and what statutes, regs, and case law say something means. Think of the many definitions of species, for example. In this case, “emergency” is defined in the statute.
Here’s my summary.
Sec of Ag gets to make determination (both recent Secs have).
If a project is covered, there only needs to be two alternatives (action and no action)
EA or EIS is done, following rules. Public comment specifically required.
No objection period.
Helpful suggestion to judges about PIs (in my experience, judges resist suggestions from Congress, but we’ll see).
Here is the text of the relevant section, sorry about any formatting issues. It’s short and relatively easy to understand.
SEC. 40807. EMERGENCY ACTIONS.
(a) DEFINITIONS.—In this section:
(1) AUTHORIZED EMERGENCY ACTION.—The term ‘‘authorized emergency action’’ means an action carried out pursuant to an emergency situation determination issued under this section to mitigate the harm to life, property, or important natural or cultural resources on National Forest System land
or adjacent land.
(2) EMERGENCY SITUATION.—The term ‘‘emergency situation’’ means a situation on National Forest System land for which immediate implementation of 1 or more authorized emergency actions is necessary to achieve 1 or more of the following results:
(A) Relief from hazards threatening human health and safety.
(B) Mitigation of threats to natural resources on National Forest System land or adjacent land.
Note that “mitigation of threats” not the same as the “immanent threat” language in the 2001 Roadless Rule.
(3) EMERGENCY SITUATION DETERMINATION.—The term ‘‘emergency situation determination’’ means a determination made by the Secretary under subsection (b)(1)(A).
(4) LAND AND RESOURCE MANAGEMENT PLAN.—The term ‘‘land and resource management plan’’ means a plan developed under section 6 of the Forest and Rangeland Renewable Resources Planning Act of 1974 (16 U.S.C. 1604).
(5) NATIONAL FOREST SYSTEM LAND.—The term ‘‘National Forest System land’’ means land of the National Forest System (as defined in section 11(a) of the Forest and Rangeland Renewable Resources Planning Act of 1974 (16 U.S.C. 1609(a))).
(6) SECRETARY.—The term ‘‘Secretary’’ means the Secretary of Agriculture.
(b) AUTHORIZED EMERGENCY ACTIONS TO RESPOND TO EMERGENCY SITUATIONS.—
(1) DETERMINATION.—
(A) IN GENERAL.—The Secretary may make a determination that an emergency situation exists with respect to National Forest System land.(B) REVIEW.—An emergency situation determination shall not be subject to objection under the predecisional administrative review processes under part 218 of title 36, Code of Federal Regulations (or successor regulations).
(C) BASIS OF DETERMINATION.—An emergency situation determination shall be based on an examination of the relevant information.
That seems fairly vague. Conceivably any forest on which wildfire could be a threat to human health and safety or natural resources.
(2) AUTHORIZED EMERGENCY ACTIONS.—After making an emergency situation determination with respect to National Forest System land, the Secretary may carry out authorized emergency actions on that National Forest System land in order to achieve reliefs from hazards threatening human health and safety or mitigation of threats to natural resources on National Forest System land or adjacent land, including through—
(A) the salvage of dead or dying trees;
(B) the harvest of trees damaged by wind or ice;
(C) the commercial and noncommercial sanitation harvest of trees to control insects or disease, including trees already infested with insects or disease;
(D) the reforestation or replanting of fire-impacted areas through planting, control of competing vegetation, or other activities that enhance natural regeneration and restore forest species;
(E) the removal of hazardous trees in close proximity to roads and trails;
(F) the removal of hazardous fuels;
(G) the restoration of water sources or infrastructure;
(H) the reconstruction of existing utility lines; and
(I) the replacement of underground cables.
(3) RELATION TO LAND AND RESOURCE MANAGEMENT PLANS.—Any authorized emergency action carried out under paragraph (2) on National Forest System land shall be conducted consistent with the applicable land and resource management plan.
(c) ENVIRONMENTAL ANALYSIS.—
(1) ENVIRONMENTAL ASSESSMENT OR ENVIRONMENTAL IMPACT STATEMENT.—If the Secretary determines that an authorized emergency action requires an environmental assessment or an environmental impact statement pursuant to section 102(2) of the National Environmental Policy Act of 1969 (42 U.S.C. 4332(2)), the Secretary shall study, develop, and describe—
(A) the proposed agency action, taking into account the probable environmental consequences of the authorized emergency action and mitigating foreseeable adverse environmental effects, to the extent practicable; and
(B) the alternative of no action.
(2) PUBLIC NOTICE.—The Secretary shall provide notice of each authorized emergency action that the Secretary determines requires an environmental assessment or environmental impact statement under paragraph (1), in accordance with applicable regulations and administrative guidelines.
(3) PUBLIC COMMENT.—The Secretary shall provide an opportunity for public comment during the preparation of any environmental assessment or environmental impact statement under paragraph (1).
(4) SAVINGS CLAUSE.—Nothing in this subsection prohibits the Secretary from—
(A) making an emergency situation determination, including a determination that an emergency exists pursuant to section 218.21(a) of title 36, Code of Federal Regulations (or successor regulations); or
(B) taking an emergency action under section 220.4(b) of title 36, Code of Federal Regulations (or successor regulations).
(d) ADMINISTRATIVE REVIEW OF AUTHORIZED EMERGENCY ACTIONS.—An authorized emergency action carried out under this section shall not be subject to objection under the predecisional administrative review processes established under section 105 of Determination. Study.the Healthy Forests Restoration Act of 2003 (16 U.S.C. 6515) and section 428 of the Department of the Interior, Environment, and Related Agencies Appropriations Act, 2012 (16 U.S.C. 6515 note;
Public Law 112–74).
(e) JUDICIAL REVIEW OF EMERGENCY ACTIONS.—A court shall not enjoin an authorized emergency action under this section if the court determines that the plaintiff is unable to demonstrate that the claim of the plaintiff is likely to succeed on the merits.
(f) NOTIFICATION AND GUIDANCE.—The Secretary shall provide notification and guidance to each local field office of the Forest Service to ensure awareness of, compliance with, and appropriate use of the authorized emergency action authority under this section.
The operative phrase appears to be: “immediate implementation of 1 or more authorized emergency actions is necessary” to achieve relief from threats or mitigation of harm. I think it could be considered arbitrary to say immediate implementation is necessary if the threats or harm or not also immediate. (But then, what is “immediate?”)
I don’t see the language on alternatives overriding NEPA requirements for a range of reasonable alternatives. It just specifies the two that are always required. It doesn’t say you can’t do more, and maybe more would normally be necessary. Of course, since those two are normally always required, this language would be redundant. But would courts try to make up for poor legislative drafting?