Going through the Fix Our Forests litigation tweaks (which hopefully someone understands better than I), I was reminded of another Nick Smith story about the Pintler Face Project on the Beaverhead-Deerlodge. I did see a time limit for filing in Fix our Forests, which seems like a good idea, especially when we look at this case.

According to AFRC,

Almost three years after the Pintler Face Project’s approval, and after nearly half of the commercial timber harvest had been completed, anti-forestry groups filed a complaint alleging that the Forest Service violated the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA). Three months later, just as commercial harvest was about to resume, anti-forestry groups filed a motion for a preliminary injunction to halt all project activities, alleging irreparable harm under their NEPA and ESA claims.

On June 25, Judge Christensen held a hearing on the preliminary injunction, with strong support for the Forest Service, AFRC, and Defendant-Intervenors, evidenced by over 30 supporters present in the courtroom. This community support underscores the importance of projects like Pintler Face, which benefit forest health and the rural communities relying on a steady source of timber from federal lands.

In his decision, Judge Christensen ruled that the commercial harvest component of the project, encompassing 3,934 acres, can proceed. However, the non-commercial work, covering 7,765 acres, is enjoined until the court decides the case’s merits. Operations, which were suspended in May, can now resume on July 16 following the spring bear season’s close.

The Pintler Face Project includes four timber sales, all timber salvage contracts aimed at removing dead and dying trees from pine beetle infestations. One sale is complete, two are approximately 25 to 30 percent complete, and the last is set to begin in November.

Anti-forestry challenged the project based on a remapping of lynx habitat by the Forest Service in 2020, which reduced habitat without a NEPA analysis. They also contested the adequacy of the Fish and Wildlife Service’s Biological Opinion (BiOp) for the project concerning the grizzly bear.

During the hearing, the federal attorneys argued for the dismissal of anti-forestry groups’ claims on the 2020 remapping due to their failure to raise concerns during the project’s objection and public commenting period. The government also argued against the preliminary injunction, highlighting the groups’ nearly three-year delay after the project’s approval in 2021 to file their motion.

In denying the injunction, Judge Christensen recognized that enjoining the project’s commercial activities would harm the local, timber-dependent communities, noting the significant economic investments made and the many jobs provided by Iron Pine and Sun Mountain. The judge highlighted the salvage nature of the commercial work: “Because dead and dying timber loses its commercial value rapidly, even a short-term injunction would jeopardize the local economy.”

Here’s a link to the project site. It has a 367 page EA, an 84 page Decision Notice, and the Decision Notice was signed on 9/09/21. To me, the timing of half-way through the completion of the project seems odd.  I wonder why the plaintiffs chose that timeframe.

The story says plaintiffs “challenged the project based on a remapping of lynx habitat by the Forest Service in 2020, which reduced habitat without a NEPA analysis.” Not to sound too Ohio Forestry-esque, but mapping without specific projects doesn’t actually reduce habitat.  And that was done in 2020 before the decision was made, so they could have commented or objected.  There must be more here than meets the eye. Plus the trees involved are dead or dying.   Guess who the plaintiffs are?  AWR, Native Ecosystems Council and a group called Yellowstone to Uintas. Y to U advocates for a wildlife corridor, from Yellowstone to the Uinta Mountains in Utah. Now I’m not the greatest at Montana geography, but the site of the Pinteler project doesn’t seem anywhere near the corridor that Y to U’s are proposing.

Anyway, back to the discussion we had here.  There is something different about Montana (or R-1) and I think it’s due to the presence of certain litigation-oriented groups.  And I don’t think the FS or BLM proposing only projects supported by AWR is a good solution.

The Breakthrough Institute posted an interesting report today- so shout-out to them for digging into the litigation question.  They are mostly interested in litigation and possibly permitting reform affects infrastructure projects, but, as usual, Forest Service vegetation projects continue to play a starring role in the NEPA litigation drama.  I’ll excerpt the main points they make about the FS.  Others are welcome to add their thoughts.

Breakthrough Institute analysts, in collaboration with legal experts at Holland & Knight, compiled and analyzed 387 NEPA cases brought to the U.S. appellate court system over the 2013-2022 period and categorized them by project type, environmental review, length of judicial review, federal agency, and plaintiff. Our results indicate that NEPA litigation overwhelmingly functions as a form of delay, as most cases take years before courts ultimately rule in favor of the defending federal agency.
As Congress deliberates reforms to NEPA, it is essential that policymakers recognize the degree to which the legal status quo prioritizes procedure over outcomes. To enable more effective environmental review, reforms should minimize the potential for extended, unproductive legal battles while still promoting the fair assessment of environmental impacts.

Here are their Key Findings:

Between 2013 and 2022, circuit courts heard approximately 39 NEPA appeals cases per year, a 56% increase over the rate from 2001 to 2015.2
• Agencies won about 80% of the 2013-2022 appeals cases, 11% more per year than from 2001 to 2004, 8% more than from 2001 to 2008, and 4% less than from 2009 to 2015.3 The rate at which agencies’ reviews are upheld is high, meaning these environmental reviews are seldom changed as a result of litigation.
• On average, 4.2 years elapsed between publication of an environmental impact statement or environmental assessment and conclusion of the corresponding legal challenge at the appellate level. Of these appealed cases, 84% were closed less than six years after the contested permit was published, and 39% were closed in less than three.
• Among the challenges, 42% contested environmental impact statements, and 36% contested environmental assessments. Agencies won about 80% of challenges to both.
• NGOs instigated 72% of the total challenges. Of those, just 10 organizations initiated 35% and had a success rate of just 26%, merely 6% higher than the average for all types of plaintiffs.
• Only 2.8% of NEPA litigations pertained to agency assessment of environmental justice issues.
• Public lands management projects were the most common subject of litigation (37%), the greatest share of which (47%) challenged forest management projects. Just 10 groups filed 67% of the challenges to forest management projects and collectively won only 23% of those cases, adding 3.7 years on average to the process of implementing the 77% of projects on cases they lost.
• Energy projects were the second most common subject of litigation (29%). Litigation delayed fossil fuel and clean energy project implementation by 3.9 years on average, despite the fact
that agencies won 71% of those challenges. NGOs filed 74% of energy cases, with just 10 organizations responsible for 48% of challenges.

We’re #1! We’re #!!

Forest management projects were the most common subject of litigation.
Despite public outcry over NEPA’s impact on clean energy deployment, energy projects don’t constitute the largest share of legal challenges in this dataset. Instead, the majority (37%) of total NEPA challenges contested public lands management projects. The U.S. Forest Service and Bureau of Land Management together manage the majority of
federally owned land in the United States, about 437 million acres.25 A NEPA review is required whenever these agencies perform management activities, like removing dead trees or building roads. This highlights a key distinction between the requirements NEPA imposes on public lands management agencies and those that focus on building infrastructure. Where NEPA acts as a mechanism to regulate private industry activity when permitting mines or wind farms, it also governs how land management agencies execute their core, legislatively mandated responsibilities. Thus, NEPA litigation poses a unique challenge for these agencies, allowing the public to contest the minutiae of their every decision.

In this dataset, forest management projects were most often the subject of appeals (Table 5), constituting 47% of land management cases and 17% of cases overall. Just 10 organizations filed 67% of these cases (Table 6), underscoring that NEPA litigation often originates from activism efforts advanced by a small number of NGOs. Collectively, this group of organizations won only 23% of their cases, while adding about 3.7 years on average to the process of implementing projects on cases they lost.

I don’t think that any TSW-ites will be surprised by this.  As I recall, when the GAO report came out about appeals and litigation, Region 1 was the outlier in terms of having the most litigation.  I posted about that here in 2010.  My hypothesis was that more lawsuits was due to the presence of more regional litigatorily-inclined NGOs. This seems to continue to be the case. After all, it’s not the Alliance for the Wild Sierras nor Shenandoahs.

Here is Breakthrough’s  broader look at litigants for all projects.

And finally, for energy, this is what it looks like:

So take a look if you’re interested and put your thoughts in the comments here.

I think there was a lot of concern about the “foundational regulatory structure” being overturned by the Loper decision, perhaps by reporters who didn’t have time to digest it, or people who simply want to generate fear and clicks.  The media push might not even be so much about the decision itself, as fitting the decision into the current political “bad Supreme Court” narrative.

So I’ve been curious to back up and see what legal minds, after some reflection and careful thought, have to say about the “grandmothering” of decisions I mentioned yesterday.  Fortunately, Dan Farber of the UC Berkeley Law School addressed this directly in a Legal Planet blog post. 

Remember, new regulations are relatively few in Forest Service world.  The OG effort is a national plan amendment, and the NWFP is a regional plan amendment.  Perhaps there are more regulations in BLM world, most notably the recent Public Lands Rule.

Farber also has a post specifically on “Is the sky falling?”

But unlike many commentators, I don’t think the sky is falling. I was teaching environmental law before Chevron was decided, and I can testify that agencies like EPA were able to succeed in that setting.

It is interesting to consider what having old people around who remember the past adds to the discussion.

Anyway, back to the details of grandmothering.

To cushion the shock of abandoning Chevron, the Supreme Court created a safe harbor for past judicial decisions. This was well-advised. The Court itself applied Chevron at least seventy time, as did thousands of lower court decisions. The key question will be the scope of the grandfather clause.

The Court’s discussion began by saying that “we do not call into question prior cases that relied on the Chevron framework.”  Thus, “the holdings of those cases that specific agency actions are lawful—in­cluding the Clean Air Act holding of Chevron itself—are still subject to statutory stare decisis [Latin for standing by past decisions] despite our change interpretive methodology.” “This means that “mere reliance on Chevron cannot constitute a ‘special justification’ for overruling such a holding, because to say a precedent relied on Chevron is, at best, ‘just an argument that the precedent was wrongly decided.’”  And “That is not enough to justify overruling a statutory precedent.”

It seems clear that the specific regulation upheld by an earlier decision is protected by that previous decision.  Thus, the idea that overruling Chevron makes it open season on existing regulations is an exaggeration, because many of those regulations are protected by binding precedent.  The next question is the scope of the protection given an agency. The Court begins by referring to specific regulations but then talks more broadly about statutory stare decisis (precedent).

It’s significant that the Court referred to statutory stare decisis, because the general rule is that cases interpreting statutes are especially difficult to overrule.  Unlike a constitutional decision, a case interpreting a statute can be reversed by Congress passing a new law.  Therefore, error correction by the courts is less needed for statutory precedents. That means that overruling cases from the Chevron era will be very difficult.

What happens if a regulation that was upheld under Chevron is later amended? If the features of the regulation that were challenged in the earlier case remain unchanged, that should mean that the validity of those features is still binding law.  Presumably, the same should be true even if the agency repeals the earlier regulation and replaces it with a new regulation that retains those features. The innovations in the new regulation might be subject to attack, but stare decisis (respect for precedent) should protect the features inherited from the earlier regulation.

For example, EPA issued an interstate pollution rule that was based on an earlier Supreme Court decision called EME Homer.   Less than a week before Loper, the Court stayed that decision for other reasons, but nowhere in that opinion was there a hint that EME Homer was in any way in doubt.

There has been talk about a surge of litigation challenging regulations that were upheld under Chevron.  The Court seems to have been trying to shut the door to such challenges. Doing otherwise would have introduced chaos into many areas of regulation, with a devastating effect on everyone who had relied on those decisions – investors, agency officials, states, and Congress itself. No doubt there will be a few lawless judges – probably in the Fifth Circuit – who will ignore the Court’s directives. They will deserve summary reversal by the Supreme Court.

I don’t know what things the Fifth Circuit has done to irritate Farber. There are several National Forests, but not that much FS litigation that I recall.