collaboration and public involvement

A Unification Approach to Bears Ears: Let’s Swear Off Political Sharp Sticks in the Eye

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Conservation Lands Foundation board member and former Interior Secretary at a meeting in Durango, Colorado. Photo by Steve Lewis, Durango Herald.
Lisa Friedman of the New York Times wrote an interesting article about the top things the new administration could do for the environment.

Most of her nine are about climate change. Of most interest to us, is perhaps one she calls “Restore Wildlife Areas”

According to her, Mr. Biden has pledged to take “immediate steps to reverse the Trump assault on America’s national treasures” including major cuts in 2017 to Bears Ears and Grand Staircase-Escalante National Monuments as well as opening parts of the Arctic National Wildlife Refuge to oil exploration. He has said on the first day of his administration that he will sign an executive order to conserve 30 percent of US lands and waters by 2030.”

We’ll be continuing to discuss the details of a 30 x 30 goal.

One concept I’ve never heard political writers talk about is what I would call the “sharp stick in the eye” factor, which I think deserves more exploration. Bears Ears was monumentized following the loss of an election. We have heard from the same people that it’s bad for Supreme Court nominees to be picked too close to an election, but the same folks argue that it was fine to Monumentize an area where many elected officials are of the opposing party after an election. It seems to me that these positions are inconsistent, and I’ve found that inconsistent and or illogical positions are often guideposts to decisions that are ultimately political (in the sense of pleasing someone at the expense of others). Anyway, to me that was an intentional sharp stick in the eye. It will be interesting to see if we agree on the SSE (sharp stick) factor. I’d give Bears Ears an 8 on a 1-10 scale.

I don’t think the “uniting” approach would be to “immediately reverse” what the Trump Administration did. That would be just another sharp stick in the eye.. haven’t we had enough of those? What about sitting down again with folks in the area and concerned groups looking at a variety of alternatives without the drama of the Nationally Significant Focus by Some Groups as a Symbol. Certainly the only choice is not “these 2016 lines with these 2016 restrictions”. As Chris Wood said about the 2001 Roadless Rule, “it wasn’t written on stone tablets.”

Despite the fears, we didn’t see any oil and gas nor additional uranium development. Maybe, as we have seen, increasing recreation in the area would be bad for the environment, or people come whether or not it’s a Monument, or people overuse trails and spread Covid to locals. Seems like the last four years have had changes that could be considered in such a discussion.

Mark Squillace, a professor at the University of Colorado Law School, tells the story of when he accompanied Interior Secretary Bruce Babbit to affected communities to discuss Grand Staircase-Escalante national Monument. The way his story goes, talking person to person with Babbit may have actually changed minds, or at least reduced the atmosphere of antipathy. (Of course, that’s Mark’s side of the story, but we don’t have another one, so I’ll go with it.)

Here’s my unifying approach based on that:
1. Send the Secretary out there (presence is a great symbol) as part of a public comment period
2. Determine to listen respectfully to the other sides, including elected officials from the other party (!). As the President-elect said, they are not your enemy.
3. Do a deal with the goal of stability.. “can everyone live with this?”

Actually, it sounds a lot like plain old collaboration. It’s also what states have to do regularly, which is why I like former western governors and DNR directors for Interior Secretaries.
It’s interesting to think about why it is that when the stakes are higher than at the State level, it seems like collaboration takes a back seat and “winner takes all” takes over. But internationally, we’d reject that approach in supporting peace processes. Perhaps national politics are some kind of anomaly. Not in a good way.

I ran across this article from only five years ago from the Durango Herald on Babbitt’s then-current activities:

The pushback from the energy production industry is a major obstacle, but Babbitt said he has long held the belief that the two, preservation and industry, can co-exist.

“How many of you know, that there is gas production at the Canyon of the Ancients?” Babbitt asked the crowd of about 30 members and non-members. “The opponent says you’re taking things off the slate of use and production, that the land is just being set aside for weak environmentalists. But (oil and gas) can be managed with minimal impact. It is possible to make them work together.

And one reason the BLM is taking such good care of that place is because they’re looking over their shoulder,” he said. “That’s the model for the entire West, and it began right here in Durango.”

I think by “they” in the last sentence Babbitt meant local people given the context. Also Babbitt talks about BLM’s National Conservation Lands which sounds like it could be an alternative to monumentizing, especially when an Administration starts with enough time for such a process.

Administrative and Judicial Review Opportunities for Collaborators: Webinar with Susan Jane Brown

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Susan Jane Brown posted about this webinar a while back. I was driving and listened in, except for when the call dropped, so I missed some of the Q&A. I thought Susan Jane Brown did an excellent job of explaining how cooperative groups can get involved, among a variety of other topics. She was clear, accurate and easy to understand in explaining a complex topic- not an easy thing to do. Sustainable Northwest put on the webinar, so thanks to them!

Here’s a link to the webinar.
Here’s Susan’s white paper
So.. how can collaborative groups get involved in litigation?

She has an informative discussion about the roles and difficulties of collaboratives becoming Amicus curiae and even how to hire an attorney.

In general, some things collaborative groups may want to consider when retaining a lawyer include:
• Cost. Pro bono and reduced cost attorneys are not the norm, and most lawyers will want to be paid for their representation. As mentioned previously, most private attorneys charge their clients based on hourly rates, and will vary based on experience, expertise, and location (for example, an attorney in John Day, Oregon who does not specialize in environmental litigation and recently graduated from law school will charge a much different rate than a Washington, DC lawyer who has been practicing natural resources law before the Supreme Court for 40 years). You should always ask prospective attorneys about their hourly rates.

• Expertise. Experience with federal environmental law is extremely useful in litigation of the type discussed in this memo, but not necessary. Simply because a prospective attorney has little experience with environmental or natural resources law does not mean they will not be able to competently and zealously represent a collaborative group in litigation. Nevertheless, familiarity with the issues common to this type of litigation is a relevant consideration.

• Scope of representation. When engaging an attorney, it is critical to know what you are getting for your money and time. Will the attorney represent the collaborative group in just the district court, or on appeal if the Forest Service loses the case? Will the attorney engage in any post-litigation work, such as review of settlement agreements? What happens if the attorney puts in more work than expected: is the collaborative group responsible for paying the attorney for that additional work? Must the collaborative group pay for any time the attorney’s clerk spends writing a brief? These are some of the questions you should ask prospective attorneys about what they will be doing for your collaborative group. After these discussions, your attorney will prepare an attorney-client representation agreement that will set out in writing the rights and responsibilities of both the client and the attorney.

• Personality. As collaborative groups know, it is all about relationships. Whether you like and can get along with a prospective attorney is an extremely important consideration, given that you may be spending substantial time with that person, not to mention paying them for an important service: representing you on an issue in which you are heavily invested. Someone may be an excellent attorney but an impossible person.

It all sounds very expensive (and difficult to become an effective Amicus curiae). I wonder whether collaborative groups have approached foundations about support for legal costs? I know the larger foundations do fund environmental groups. I also wonder if when the policy landscape favors litigation as a policy tool, policies tend to be unduly influenced by well-intentioned but distant rich people?

It’s National Forest Week – so let’s think about forest planning for tribal areas

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But we all knew that, right?  Here’s the National Forest Foundation link.

But here’s the rest of the story:

It’s National Forest Week, and members of the Crow Tribe are celebrating recognition of a special place in Montana.

In the U.S. Forest Service’s final draft of its Custer Gallatin National Forest plan released last week, the agency recognized the cultural and spiritual significance of the Crazy Mountains, designating it an “Area of Tribal Interest.”

The Custer Gallatin plan recognizes only the southern part of the Crazies. The Forest Service did not include the cultural significance of the northern part in its Helena-Lewis and Clark National Forest plan from May.

Ideally, Doyle (a Crow tribal member) said, the tribe would like to see both sections recognized, but he noted that the region in the Custer Gallatin National Forest is most significant.

Why?  If there was one thing that everyone involved in developing planning regulations agreed on, it was that management direction should not change just because of an administrative boundary with a different staff member in charge.  And now this.  Two adjacent forest plan revisions, on roughly the same schedule, and different ideas about what?  Maybe there’s some legitimate resource reasons, but here’s the extent of the plan components for this area (and they don’t require much):

Desired Conditions (BC-DC-TRIBAL)

01 The Crazy Mountains embody a tribal cultural landscape significant to ongoing traditional cultural practices of the Crow Tribe.

02 Research, education, and interpretation of the Crazy Mountain tribal cultural landscape provides public benefits and enhances the understanding and appreciation of Crazy Mountain’s natural environment, precontact, contact, and Crow traditional cultural values.

Goals (BC-GO-TRIBAL)

01 The Custer Gallatin National Forest protects and honors Crow treaty obligations, sacred land and traditional use in the Crazy Mountains through continued consultation with the Crow Tribe.

This is not the only “area of tribal interest” on the Custer-Gallatin.  The Helena-Lewis and Clark plan has plan components for “areas of tribal importance,” but does not identify them (other than the Badger-Two Medicine area).  The plan dedicates one descriptive sentence to the tribal history in the Crazy Mountains.  So, again, how does the Forest Service explain the line they have drawn here?

(Related to the consistency idea, there was a lot of debate about whether plan decisions should be made by forest supervisors or regional foresters.  The Forest Service went with the former (I was told so the Chief wouldn’t be involved in objections), and this is the kind of problem they created.)

Collaborating on national forest exploitation – an oxymoron?

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“Attendees engaged in fruitful conversations during the Green Mountain and Finger Lakes National Forests hosted Environmental Analysis and Decision Making collaboration summit. USDA Forest Service photo.”

“Before retiring, James Burchfield worked as a field forester for the Forest Service and served as dean of the W.A. Franke College of Forestry and Conservation at the University of Montana.”  Where our careers overlapped, he was known for his support of and expertise in collaboration in national forest management.  We have argued on this blog about the proper role of collaboration (it flared up again in the Rim Fire recent example), but in this Missoulian column he points out what I think most would agree is an improper role (on his way to making another point about adequately funding the Forest Service).

In 2002, former Chief Dale Bosworth, who now resides in Missoula, reminded the agency of the concept of stewardship, where the focus is not what we take from the land but what we leave on the land. I fear we may be forgetting these vital lessons.

The June 12 visit to Missoula by Agriculture Secretary Sonny Perdue to announce his Secretarial Memorandum on new agency priorities reminds us how easily we may be lured in the wrong direction. His mandate to “increase America’s energy dominance” and “reduce regulatory burdens” comes on the heels of a June 4 Presidential Executive Order that orders federal agencies to set aside environmental impact requirements because of the economic downturn caused by the COVID-19 pandemic. Certainly, the nation must take assertive measures to restore the economy, but a command to exploit complex ecological systems without appropriate environmental reviews, guaranteed by the National Environmental Policy Act (NEPA), abandons the sound principle of “look before you leap.” Further, forcing the Forest Service to meet production targets on a narrow range of resource benefits — those that can be commodified in the marketplace — discounts other critical resource values such as clean water, wildlife habitat and recreation opportunities that are well-recognized as central to Montana’s economic vitality.

Moreover, the Forest Service has learned its best outcomes emerge only after ongoing deliberations among partners and local residents to apply their nuanced knowledge and experience. This process actually happens in Montana via the decades of efforts by the 20-plus voluntary groups known as forest collaboratives that regularly engage with agency staff to improve project design, build understanding, and help get work done. These collaborative groups do not enter their deliberations with presupposed notions of resource exploitation. They want the best for the land.  

(My emphasis.)  I was always skeptical that including those with strictly monetary interests in collaborative efforts comported with this principle.  I assumed that there would have to be collaborative agreement with the desired outcome as step 1.  (This is also where forest plans should make an important contribution by defining the desired condition of the land.)  After Perdue’s announcement, it’s hard to see how any truly collaborative effort today could get past that step.

 

 

Range of variation webinar (and more)

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This is a topic that at least Sharon and I like to debate (though for some reason she didn’t weigh in here).  The Western Environmental Law Center is offering this hour and half webinar on July 17.  As far as I know, it’s open to the public.

PNW Forest Collaboratives Workshop Series Part 3: Historical Range of Variability (HRV): Uses and Various Approaches
 
Range of Variability (ROV) concepts – including Natural (NRV), Historic (HRV), Current (CRV), and Future (FRV) – are frequently used by the US Forest Service to help define land management goals. Nathan Poage, Forest Service Ecologist, joins us to provide an introduction to ROV terminology and examples of how the Malheur, Umatilla, and Wallowa-Whitman National Forests in the Blue Mountains have applied ROV concepts during project planning when addressing key requirements of the Eastside Screens. The discussion will include overviews of tools commonly used to conduct ROV analyses. Q&A will follow the presentation.
This webinar will be on Friday, July 17 from 10-11:30am Pacific Time.
Registration is required for this event. Register today by clicking this link.
Note that it also involves the Eastside Screens.  I don’t think I can make it, but I’d be interested in hearing about it.  I also wanted to point out that this is about how to apply these concepts to projects developed under antiquated forest plans that don’t include the concepts.  It was this kind of thinking that drove development of the requirement to do this instead as part of revising forest plans under the 2012 Planning Rule.  Natural Range of Variation (NRV) embraced by the Planning Rule is a required desired condition for ecosystems, which should not change over time, and therefore should not be redecided for each project.  I’d be interested in knowing how, once ROV is determined for a particular project here, it is then documented and used for future projects in the same ecosystem.
But maybe there would be more interest in this one:
PNW Forest Collaboratives Workshop Series Part 2: Collaborative Administrative and Judicial Review Opportunities
In this follow-up webinar to NEPA 101, WELC attorney Susan Jane Brown will give a presentation on and answer your questions about collaborative administrative and judicial review opportunities, and dig deeper into the administrative review process for the Forest Service, judicial review of agency decisions, and how collaborative groups can engage in these processes.
This webinar will be on Thursday, July 9 from 10-11:30am Pacific Time.
Registration is required for this event. Register today by clicking this link.

Trump’s latest marching orders on public lands

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Trump – Nailed it

The Trump Administration declared the coronavirus pandemic to be a “national emergency” in March. On June 4, the president issued an executive order on “Accelerating the Nation’s Economic Recovery from the COVID-19 Emergency by Expediting Infrastructure Investments and Other Activities.”  It has been characterized as “waiving environmental protections,” in particular the National Environmental Policy Act and the Endangered Species Act, and would include actions taken on public lands. This has been condemned in the usual places.

It will be interesting to see how this plays out on federal lands, and whether it makes any difference.  Trump already has the pedal to the metal on development activities, so I wonder what more they could do – without actually violating a law.  Maybe we should expect more lawsuits.

Here’s some of the key language in the EO (with my emphasis):

Sec. 2.  Policy.  Agencies, including executive departments, should take all appropriate steps to use their lawful emergency authorities and other authorities to respond to the national emergency and to facilitate the Nation’s economic recovery.  (I assume that means other non-emergency authorities, and not other unlawful authorities 🙂 )

Sec. 5.  Expediting the Delivery of Infrastructure and Other Projects on Federal Lands

b)  To facilitate the Nation’s economic recovery, the Secretary of Defense, the Secretary of the Interior, and the Secretary of Agriculture shall use all relevant emergency and other authorities to expedite work on, and completion of, all authorized and appropriated infrastructure, energy, environmental, and natural resources projects on Federal lands that are within the authority of each of the Secretaries to perform or to advance.

Sec. 6.  National Environmental Policy Act (NEPA) Emergency Regulations and Emergency Procedures.

b)  To facilitate the Nation’s economic recovery, the heads of all agencies are directed to use, to the fullest extent possible and consistent with applicable law, emergency procedures, statutory exemptions, categorical exclusions, analyses that have already been completed, and concise and focused analyses, consistent with NEPA, CEQ’s NEPA regulations, and agencies’ NEPA procedures.

Sec. 7.  Endangered Species Act (ESA) Emergency Consultation Regulations.

(b)  The heads of all agencies are directed to use, to the fullest extent possible and consistent with applicable law, the ESA regulation on consultations in emergencies, to facilitate the Nation’s economic recovery.

Sec. 10.  General Provisions

(b)  This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

Of course an executive order can’t change the law or regulations, and this one explicitly refers to existing procedures that can be used in emergencies.  All I see Trump doing here is pointing out that there are existing authorities to expedite projects, and agencies should be using them.  But maybe the intent might be to expand the situations that are considered emergencies to include an economic recession.  I doubt that could be done “consistent with applicable law” related to emergency determinations.  Here is the language applicable to Forest Service NEPA (36 CFR §220.4):

The responsible official may take actions necessary to control the immediate impacts of the emergency and are urgently needed to mitigate harm to life, property, or important natural or cultural resources.

If there is a need to mitigate immediate harm to life, property or important resources, it would be consistent with applicable law to use the established emergency procedures.  There is either nothing new in the executive order, or if there is, we should expect it to be challenged.  (And then there is the question of why he waited three months to address this “emergency.”)

But these are dark days.  The Washington Post quoted an attorney at a large national law firm (Perkins Coie) that doesn’t usually represent environmental plaintiffs.  He noted that the National Environmental Policy Act was enacted 50 years ago partly to prevent arbitrary federal decisions such as building highways through parks and communities of color and that the current administration cannot simply set aside laws aimed at protecting vulnerable Americans or the environment. “I will not be surprised to see many observers comparing this move — declaring an emergency to shield agency decisions from the public — to the order to clear Lafayette Square on Monday evening,” Jensen said, referring to actions in a Washington park this week. “It’s just one more face of authoritarian ideology, with a clear link to issues of race and equality and government accountability.”

 

Forest planning for mechanized use in recommended wilderness

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We’ve talked about whether mountain bikes should be allowed in areas recommended for wilderness designation by the Forest Service in a forest plan, for example, here.  Most of the angst has been related to a policy adopted by Region 1 that many interpret as excluding this use because allowing it would reduce the likelihood that an area would actually be designated.  Here’s an example from another region of how a forest plan would address this question.  This language is from the draft EIS for the Nantahala-Pisgah National Forest revised plan (North Carolina). While this is written about the effects of wilderness designation, the DEIS also makes it clear what activities the Forest thinks would create a risk to future wilderness designation options.

Wilderness recommendation and designation would remove the potential to generate revenue from timber production, forest product sales, and other land uses which support surrounding development such as utility or transportation corridors. No new mineral claims would be filed, but valid existing claims would be allowed to operate.

Existing roads within recommended areas would either continue to be maintained as linear wildlife fields or decommissioned and allowed to return to a natural state. No new wildlife fields would be created nor any timber harvest activities allowed. Restoration activities where the outcomes protect wilderness characteristics would be allowed to continue, including monitoring, relocation of animals, habitat improvements such as removal of nonnative fish species and nonnative invasive plant species, stream improvements, and rehabilitation of recreation impacts.

Existing trails would continue to be maintained to allow for hiking and equestrian use per current trail-use designations, but mechanized transport such as bicycles or carts would be prohibited in all recommended areas (with exception of approved mobility devices for the impaired). Commercial collection of non-timber forest products such as galax or ginseng, would not be permitted; however, collection for non-commercial or tribal purposes would be allowed. Other commercial activities such as recreation special-use events would also be prohibited in areas recommended for wilderness designation.

The mountain bike decision by the Forest was the followed discussions with a public working group, which also included consideration of whether future wilderness recommendations could be conditioned on providing adequate mountain bike trails.  The location of the trails was potentially less important than the amount, but it is unknown at this time where additional trails might be and how that might affect wilderness boundaries.  Consequently, trails in a potential wilderness area could be managed to phase out the existing but unauthorized mechanized use gradually after providing other comparable opportunities, and when certain conditions were met, appropriate areas would be formally recommended, with the full support of both mountain bike and wilderness groups.  But the Forest ended up recommending the area for wilderness, which would exclude the use.
In effect, the Forest appears to have considered an alternative that would have not recommended an area, but committed to a process that would recommend some or all of it as wilderness in the future (presumably with a plan amendment) when certain objectives are achieved.  You don’t find this alternative mentioned in the DEIS, though, as one considered but eliminated from detailed study.
Back in R1, the Nez Perce-Clearwater draft revised plan includes a suitability designation regarding mechanized use in all areas recommended for wilderness designation in a particular alternative.  Of the four action alternatives, one has no recommended wilderness and one would allow mechanized use in the areas recommended.  (The DEIS does not say what the current direction for recommended wilderness is.)  There is no preferred alternative.

 

The popularity of categorical exclusions

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WildEarth Guardians noticed that the Forest Service is approving more and more vegetation management projects using categorical exclusions from NEPA procedures:  “a category of actions which do not individually or cumulatively have a significant effect on the human environment.”  They decided to do a little research, and found someone to report on it.

Rissien used Forest Service postings to tally all the logging and/or burning projects proposed for the past quarter – January through March – where forest managers had applied a “categorical exclusion” to avoid the public process normally required by law.

For just those three months, 58 national forests– that’s three-quarters of the forests in the West – proposed 175 projects that would affect around 4 million acres.

Rissien found, during the past quarter, USFS Region 4 – which covers southern Idaho, Nevada and Utah – proposed four projects that exceeded 100,000 acres each. One was 900,000 acres alone.

USFS Region 1, which includes Montana, northern Idaho and North Dakota, proposed 30 projects with CE’s last quarter, totaling more than 215,000 acres.

Logging projects intended to reduce insect or disease infestation or reduce hazardous fuels can be as large as 3,000 acres with some limitations. One CE created by the Forest Service for “timber stand and/or wildlife habitat improvement” has no acreage limit. Rissien found the Forest Service uses that for a majority of projects, and doesn’t even give a reason for others.

(There is also the “road maintenance” CE that has been the subject of litigation, including EPIC v. Carlson, here.)

There are some things to question in the article, but the slant of the article is not so much that what the Forest Service is doing is illegal, but that it is being done without much public information or awareness.  The article also points out that the Forest Service just seems to be following its marching orders from the president.  Tracking through the links gets you to this letter from the acting deputy chief, which says:

Consistent with this direction, Regional Foresters are to ensure that the Agency meet minimum statutory timeframes for completion of National Environmental Policy Act documentation and consultation with regulatory agencies. Categorical exclusions to complete this work should be the first choice and used whenever possible. I encourage you to explore creative methods and set clear expectations to realize this priority effort.

There’s a few points to make here.  I’m not aware of any “minimum statutory timeframes” for NEPA or consultation (the consulting agencies do have a deadline for providing a biological opinion).  I would translate “explore creative methods” into “take legal risks.”  Artificial deadlines aren’t creative, but they also result in legal risks.  Last is the implication that the use of categorical exclusions somehow avoids the need for an administrative record that shows that the use of the categorical exclusion isn’t arbitrary – that it fits the requirements of the category and does not have any extraordinary circumstances that could result in significant effects.  The lack of public review or an administrative objection process may save time, and it forces an opponent to sue, but it increases the risk of losing the case on an issue that could have been resolved before the decision.  (But if it gets points on the board during the game, does it matter what happens after?)  WEG said, “But we have to take their word for it since there is no supporting analysis we can review.”  If that’s what is really happening, it would eventually be a problem for the Forest Service in court.

Texas congressional delegation wants federal oil & gas leasing to fire up in the state

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From the Forest Service scoping notice:

The National Forests and Grasslands in Texas (NFGT) is initiating the preparation of an environmental impact statement (EIS). The EIS will analyze and disclose the effects of identifying areas as available or unavailable for new oil and gas leasing. The proposed action identifies the following elements: What lands will be made available for future oil and gas leasing; what stipulations will be applied to lands available for future oil and gas leasing, and if there would be any plan amendments to the 1996 NFGT Revised Land and Resource Management Plan (Forest Plan).

The Forest Service withdrew its consent to lease NFGT lands from the Bureau of Land Management (BLM) for oil and gas development in 2016. The reason for the withdrawal of consent was due to stakeholder concerns, including insufficient public notification, insufficient opportunity for public involvement, and insufficient environmental analysis. There is a need to analyze the impacts of new oil and gas development technologies on surface and subsurface water and geologic resources; air resources; fish and wildlife resources; fragile and rare ecosystems; threatened and endangered species; and invasive plant management. There is also a need to examine changed conditions since the Forest Plan was published.

These leasing availability decisions are forest plan decisions that were most recently made in 1996.  The action proposed by the Forest Service would result in changes in the stipulations and would therefore require a forest plan amendment.  The changes would shift about 11,000 acres from “controlled surface use” to “no surface occupancy,” and remove timing limitations from about 35,000 acres.

A letter from five Republican members of the delegation disagrees with the premise that the 1996 analysis was inadequate, and is unhappy with the pace of the amendment process.

The published timeline anticipated a Draft EIS in the winter of 2019 with the Final EIS expected in the fall of 2020. We are concerned that this timeline is no longer achievable given current pace of progress.

We request that USFS end the informal comment period, issue a Draft EIS this spring and ultimately approve the Final EIS that reinstates BLM’s ability to offer public competitive leases of National Forest and Grasslands in Texas for oil and gas leases before the end of 2020. While USFS is required by law to respond to eligible comments received within the public comment window (CFR218.12), the Forest Supervisor also has the authority to declare the available science sound, conclude the public comment period, and proceed with the issuance of the scoping comments and alternative development workshops as the next steps ahead of a Draft EIS (CFR219.2.3, 219.3) (sic).

That last sentence got my attention as the kind of congressional attention to Forest Service decision-making that might cause them to cut a legal corner here or there (especially when there is an election coming).  I also noticed the absence of any reference to the new requirements for amendments, and maybe the delay could have something to do with this becoming evident to them as a result of scoping.  36 CFR §219.13(b)(6):

For an amendment to a plan developed or revised under a prior planning regulation, if species of conservation concern (SCC) have not been identified for the plan area and if scoping or NEPA effects analysis for the proposed amendment reveals substantial adverse impacts to a specific species, or if the proposed amendment would substantially lessen protections for a specific species, the responsible official must determine whether such species is a potential SCC, and if so, apply section §219.9(b) with respect to that species as if it were an SCC.

I found nothing in the EIS for the 1996 revision about effects of oil & gas development on at-risk wildlife species.  You’d think the new information since 1996 might have something to do with effects on climate change, too.

Supreme Court to look at science and politics

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In my experience, there have been lots of controversies where the issue is about what scientific information was considered by an agency but was suppressed or ignored by an administrator, often for allegedly political reasons.  It’s not unusual for the results of litigation to turn on documents that show an agency decision being arbitrary and capricious (violating the Administrative Procedure Act) because it is not supported by the record.  But do those kinds of documents have to be available to the public, and what if they weren’t?  The Supreme Court will be addressing such questions in U. S. Fish and Wildlife Service v. Sierra Club.  The case involves the Freedom of Information Act, and its requirement to make government records available subject to exceptions that may cause harm, in particular protection of an agency’s “deliberative process.”  (This exception generally lines up with requirements for what must be in an agency’s administrative record for a decision.)

The dispute stems from the Environmental Protection Agency’s 2011 proposal to change how it regulates power plants’ cooling water intake structures, which can crush or boil fish and other aquatic creatures.

The U.S. Fish and Wildlife Service and the National Marine Fisheries Service advised the agency on how the plan would affect threatened and endangered species. The services crafted draft opinions that said the EPA’s proposal was likely to harm protected species, but they later changed their conclusion and issued a “no jeopardy” finding.

When the Sierra Club used FOIA to get records related to the consultation process, the agencies withheld the draft opinions. After years of litigation, the U.S. Court of Appeals for the Ninth Circuit in 2018 ordered the government to turn over the records.

The Trump administration in October asked the Supreme Court to step in, arguing that the circuit court ignored FOIA Exemption 5, which protects records from an agency’s “deliberative process.” The Sierra Club countered that the documents were labeled drafts but functioned as final opinions.

While this article doesn’t talk about it, the major federal environmental statutes have requirements to use the “best science,” including the Endangered Species Act involved in this case, but also NEPA and the Forest Service Planning Regulations.  Agencies must prove they have done this by “showing their work.”  This includes disclosing contrary science, and providing the rationale for not relying on it.  It seems to me that any changes in the use of science or how it is viewed would be relevant to this requirement and must be explained to the public.  This is probably why there are comments like these on this case:

Margaret Townsend, a Center for Biological Diversity attorney who focuses on government transparency, said her group will be watching the case closely, as the Supreme Court “has a crucial opportunity to tell agencies they can’t hide science at the expense of our endangered animals and plants.”

Brett Hartl, government affairs director for the center, noted that expanded use of FOIA’s “deliberative process” exemption could allow the EPA and others to block disclosure of critical documents that explain agency decisions.

Lewis and Clark Law School professor Daniel Rohlf said a win for the government at the Supreme Court could help agency leaders overrule their own scientists and other experts.

Here’s what the government would like us to believe (according to the apparently pro-government-secrecy advocates the Pacific Legal Foundation):

“And here the agencies decided that the draft should not be finalized because further consultation was necessary, and then actually engaged in more consultation before issuing a final opinion.”

Consultation with whom, I wonder.  Since the Supreme Court agreed to review the case, the assumption is they would like to reverse in favor of the government.  The Sierra Club may decide to fold, also because FOIA has been amended since this case was filed to restrict the use of this FOIA exemption and promote greater disclosure.