Legislation

Fire Retardant Legislation in Congress: Introduction of HR 1586 and Companion Bill in Senate

by
The San Bernardino National Forest team works on the Pilot Fire behind Ryan Nuckol’s home in Hesperia on August 9th, 2016. The pink fire retardant line is one of the reasons why fire crews were able to save the home from the fire. Don Tuffs for KPCC.

Speaking of the co-evolution of statutes and court cases, and the idea that talking to all kinds of people- practitioners, academics, stakeholders- involved and hashing things out in dialogue is a better way to develop policy than behind settlement doors..

it looks like Andy has been successful at creating a bipartisan effort to do just that with regard to fire retardant.. check out this piece from the Plumas News.

Citing the importance of using fire retardant as an important tool for the Forest Service in fighting wild land fires, Congress is taking action.

Representatives Doug LaMalfa (R – CA) and Jimmy Panetta (D – CA) introduced the Forest Protection and Wildland Firefighter Safety Act of 2023 today, March 14. This bill creates a Clean Water Act exemption for federal, state, local, and tribal firefighting agencies to use fire retardant to fight wildfires. Fire retardant is an essential tool used to contain or slow the spread of wildfires. Currently the Forest Service and other agencies are operating under the assumption that a National Pollutant Discharge Elimination System (NPDES) permit is not required for the use of fire retardant because the regulations specifically state that fire control is a “non-point source silvicultural activity” and communications from EPA dating back to 1993 indicated a permit is not required.

This bill is being introduced because an environmental group is suing the Forest Service under the Clean Water Act to require a NPDES permit to use fire retardant, and they have requested an injunction on the use of fire retardant until the Forest Service receives this permit, which could take years. If the injunction is granted and fire retardant is not available for use in the 2023 fire year, firefighters and individuals living in forested areas would be in peril, millions of acres of forested land would be in danger, and billions of dollars of infrastructure would be at risk.

Congressmen LaMalfa and Panetta were joined by 22 Members of Congress: Reps. Dan Newhouse (R-WA), John Duarte (R-CA), Russ Fulcher (R-ID), Tom McClintock (R-CA), John Garamendi (D-CA), Austin Scott (R-GA), Amata Radewagen (R-AS), Troy Nehls (R-TX), Lauren Boebert (R-CO), Rick Crawford (R-AR), Young Kim (R-CA), Ryan Zinke (R-MT), Blake Moore (R-UT), Burgess Owens (R-UT), Mike Simpson (R-ID), Trent Kelly (R-MS), Ken Calvert (R-CA), Pete Stauber (R-MN), Darrell Issa (R-CA), Mary Miller (R-IL), Kevin Kiley (R-CA), and Matt Rosendale (R-MT).

Senator Cynthia Lummis (R – WY) introduced a companion bill in the Senate.

There’s a hearing on March 23, 2023 at 2 PM eastern which includes this bill, HR 1586. Here’s a link.

Giving EPA power over more aspects of a land management agency’s work could be a recipe for disaster, as per the GAO report we discussed last week.

Side note for those of you who know more about this.. if the drops in water are due to accidents or safety, how would getting a permit help with that? It seems to me that if there are things to be fixed, fixing should be approached directly, not through the EPA. But maybe the court case is just leverage for fixing.

Should ANILCA Access Provisions Apply Outside Alaska? New Case by Wilderness Workshop and Rocky Mountain Wild

by

The White River National Forest has approved year-round access and paving of Forest Service Road 780, a summer-only route above Edwards, to provide access to the proposed 19-home Berlaimont Estates project. (Jason Blevins, The Colorado Sun)
This is usually Jon territory, but since it’s in Colorado…
Interesting story by Jason Blevins at the Colorado Sun. Basically the plaintiffs are charging that ANILCA shouldn’t apply outside Alaska. Calling its use by Supervisor Fitzwilliams an “artful dodge” (plaintiffian hyperbole) is kind of silly in my view. TSW veterans of the great Village at Wolf Creek controversy (or as I called it “reasonable access for unreasonable people”) and other access issues across the country will know that Scott didn’t just dream it up.. after all, as the article says, the FS has been using the legal precedent since the 9th Circuit called it in 1981, and is certainly what FS folks are told by their lawyers.

has been deployed many times in the West and in Colorado to force the Forest Service to provide roads across public land to access islands of private property.

To me it says reasonable access and reasonable is in the eye of the beholder. Should this be changed to “not required to provide any kind of access?” Seems to me that that question should go back to Congress. Many of us could help with stories on the difficulties of interpreting “reasonable,” and ideas for useful clarifications. That’s one reason I prefer not to let courts handle these things..they can say what’s wrong, but can’t tell us what’s right, or what could work better.

Extra points to Jason for explaining this complex stuff accurately (or at least as far as I can tell) and attaching the complaint and a link to the precedent case Montana Wilderness Association v. US Forest Service. And Bob Zybach and others will appreciate that he spelled out how to pronounce FLPMA and ANILCA. If you appreciate his work, please consider sending him a note. Remember that old management idea “catch people doing something right”?

You don’t hear much about FLPMA and the Forest Service, since FLPMA is generally regarded as a BLM statute, based on the definition of public lands in it. See here.

This Complaint involves Forest Service decisions regarding National Forest System lands in Western Colorado. Defendants applied the mandatory access provisions of the Alaska National Interest Lands Conservation Act of 1980, 16 U.S.C. §§ 3101 et seq. (“ANILCA”) instead of the discretionary access provisions in the Federal Land and Policy Management Act of 1976 (“FLPMA”) that apply to federal public lands outside of Alaska, including National Forests. 43 U.S.C. § 1740 of 1976 (“Secretary of Agriculture, with respect to lands within the National Forest System, shall promulgate rules and regulations to carry out the purposes of [FLPMA]” when considering access requests.). The National Forest Management Act of 1976, 16 U.S.C. § 1600 et seq., (“NFMA”) also applies to the National Forests, but because access issues were inadvertently omitted from NFMA, the access provisions involving National Forests were included in FLPMA. Applying ANILCA’s Alaska-specific provisions to an access request
involving the National Forest in the Lower 48 States is contrary to the plain language of ANILCA and FLPMA.

It sounds like the FS was supposed to promulgate rules in NFMA.. did they? Lands people out there?

Check out the judges’ decision in that case, which goes back to mind-curdling details of the legislative history. And it returns to Colorado.

The appellees, however, have uncovered subsequent legislative history that, given the closeness of the issue, is decisive. Three weeks after Congress passed the Alaska Lands Act, a House-Senate Conference Committee considering the Colorado Wilderness Act interpreted § 1323 of the Alaska Lands Act as applying nation-wide:

Section 7 of the Senate amendment contains a provision pertaining to access to non-Federally owned lands within national forest wilderness areas in Colorado. The House bill has no such provision.
The conferees agreed to delete the section because similar language has already passed Congress in Section 1323 of the Alaska National Interest Lands Conservation Act.

Should be an interesting case..

The specific White River case seems to be about a summer only unpaved road being changed to an all-season paved road. We discussed it here, but it seemed like that story was used to take a swipe at Trump-era NEPA regs. And yet, here we still are…

Does Anyone Have Analysis of “Recreation Not Red Tape” Bill?

by

For those who don’t follow the comments, Greg Beardslee brought up and Steve Wilent posted a summary of this bill. It appears to have two D and two R cosponsors.

Update: I heard from a knowledgeable person that:

This has been merged into the current Outdoor Recreation Act S3266.   It passed the Senate Energy and Natural Resources Committee.  There is an effort to get it added to the National Defense Authorization Act.  Here’s a link to that bill, known as American’s Outdoor Recreation Act.

I was interested in finding analyses of the bill.  There was testimony at a hearing, including by the Forest Service, but I couldn’t find it. Hopefully someone has a link and can put it in the comments.

 

TSW Weekend Roundup

by

Please add other news items of interest in the comments.

Senate Energy Hearing on a Potpourri of Bills.. check out the different FS vs. BLM testimony on the same topics…

Here’s a post from Wildfire Today that shows the locations on the video of different times of interest.

*******************************

Could the proposed Sequoia bill have lit a fire under the FS feet (or the WH or Dept’s) to let them use existing emergency authorities?

Sometimes this is part of the “behind the scenes” cycle.  1. Congressional types want something to happen. 2. Admin doesn’t like being told what to do. 3. Comes up with “hey the Agency can already do it… if we let them..”. Therefore we don’t need legislation.  4. Congress loses attention. 5. Admin and interest group alllies stop supporting intervention and/or intervention is defeated in court.  6) Return to step 1 but if and only if Congress maintains attention AND interested Congressionals have enough clout to make things happen.

I have seen this happen most notably with Condition Based NEPA and bug projects.

We perhaps see this in the Sequoia Bill testimony from the FS. Perhaps the door will open for more uses of the emergency provisions- or, if the opening was directed to reduce Congressional interest in the Sequoia bill, perhaps not.

************************************

From E&E News..

Crockett said the agency supports several goals of the forest-thinning bill, S. 4904,introduced by Manchin and ranking Republican John Barrasso of Wyoming (E&EDaily, Sept. 22). But officials have “multiple concerns” with the bill’s language on forest-thinning targets, Crockett said. That bill, titled the “Promoting Effective Forest Management Act,” calls on the Forest Service to report regularly on whether land it manages is a net emitter or absorber of carbon on a regional basis.

It would also rein in the Biden administration’s efforts to define, take inventory of and potentially further limit timber harvesting on old-growth and “mature” forests — a section of the legislation that Crockett said the agency wants to “better understand” and help revise.

During the hearing, Sen. Steve Daines (R-Mont.) promoted his S. 2561 to undo the 9th U.S. Circuit Court of Appeals’ ruling in Cottonwood Environmental Law Center v. Forest Service that has resulted in longer consultations between the Forest Service and the Fish and Wildlife Service on certain forest management projects. He pointed to support for undoing the ruling from federal officials, including during the Obama Daines’ bill, which would clarify that new consultations on forest management plants aren’t required when new information about potential impacts on endangered species emerges, passed the committee by voice vote in July, over objections from Sen. Ron Wyden (D-Ore.) (E&E Daily, July 22). Daines said he’d like to see it attached to any revived permitting reform bill from Manchin.

Question to Oregonians… why does Wyden not support the Cottonwood fix?

************************

David Hayes is leaving the WH.. is that good news for people hoping to not have to deal further with MOG? Rumor has it that he was the main push. for the effort.   Only time will tell.

Interesting take on MOG and carbon in the NE by Yale scientists.

Note that I got pushback on this blog for stating “Dead trees sequester no carbon” which is actually pretty obvious. I didn’t say they can’t store carbon. And these scientists say the same:

When a tree dies from logging or on its own, that tree is no longer going to be sequestering carbon, and the carbon from that tree is eventually going to go back into the atmosphere.

Eagles Permitting EA from Nossaman blog.

On September 30, 2022, the U.S. Fish and Wildlife Service (Service) published a proposed rule to amend its eagle permit regulations (Proposed Rule) administered in accordance with the Bald and Golden Eagle Protection Act (BGEPA). The Proposed Rule seeks to improve administration of the eagle permit program by establishing a general permit pathway for eligible wind energy and power line applicants for incidental take of golden eagles and bald eagles. Eligibility criteria proposed by the Service for participation in the general permit program include factors such as eagle abundance and nest proximity. The Proposed Rule also establishes general permits for disturbance of bald eagle nests and removal of bald eagle nests under most circumstances. At the same time, the Service has published a draft environmental assessment evaluating alternatives to its proposed general permits. The Proposed Rule arises as part of a court settlement from a lawsuit brought by the Energy and Wildlife Action Coalition challenging the eagle permit regulations. The public will have until November 29, 2022 to submit comments on the Proposed Rule.

And this from the Center for Western Priorities:

The Biden administration is proposing a new permitting program to address the issue of wind turbines killing bald and golden eagles, without slowing down the construction of new wind energy projects. Bald eagle numbers have quadrupled since 2009 to about 350,000 birds, but there are only about about 40,000 golden eagles left.

The proposal, which comes after several major utilities have been federally prosecuted in recent years for killing large numbers of eagles without permits, calls for new permits tailored to wind-energy projects and power line networks. U.S. Fish and Wildlife Service Director Martha Williams said the new program would provide “multiple pathways to obtain a permit” while also helping conserve eagles.

Federal officials have declined to say how many eagles are killed illegally by wind farms each year. Last year, companies were permitted to “take” 170 golden eagles—meaning that many birds could be killed by turbines or lost through impacts on nests or habitat, according to permitting data obtained by The Associated Press. Companies are responsible for offsetting each death by ensuring at least one eagle is saved somewhere else.

 

Future webinars of interest:

A webinar on geothermal via the WGA (Western Governors’ Association), Oct. 6

Sparking Solutions: Reducing Risk at the Wildland-Urban Interface from RFF (Resources for the Future). Oct. 12

Fossil Fuels Litigation on Public Lands

by

In recent months we have seen a lot of litigation over fossil fuel production and climate change at the national level, (see comment), lease availability stage (resource management plans, see MT/WY), leasing stage (see North Dakota Resource Council) and drilling stage (see NM/WY permit case) (and then there’s the pipeline cases).  This does suggest there might be some efficiency to be gained by rethinking their planning/NEPA process for oil and gas, but that may be pointless given the political polarization of this issue.  Anyway, here is the latest installment.

Court decision in Citizens for Clean Energy v. USDI (D. Mont.)

On August 12, the United States District Court for the District of Montana ordered the Interior Department to pause the issuing of new coal leases pending compliance with NEPA requirements to consider climate effects.  The order reinstates a 2016 freeze on new federal coal lease sales, which the Trump Administration lifted two months after taking office.  The court found that a Bureau of Land Management environmental assessment of that order was insufficient.  A more comprehensive environmental review of the revocation of the coal leasing moratorium must be completed before the BLM can start coal leasing again.  There is a link to the opinion in the press release above, and here is a news article.

Court decision in Louisiana v. Biden (5th Cir.)

On August 17, the U.S. Court of Appeals for the 5th Circuit vacated a district-court injunction decision from last year that could have forced the Biden Administration to proceed with auction of oil and gas drilling rights in federal lands and offshore.  The case was remanded to the district court because the court’s order did not “state its terms specifically and describe in reasonable detail the conduct restrained or required.”  (The article includes a link to the opinion.)

The appeals court gives the Biden administration a potential path to pause leasing again.  However, the recently passed Inflation Reduction Act mandates new oil and gas sales off the coast of Alaska and in the Gulf of Mexico and also tethers the construction of wind and solar facilities to ongoing oil and gas auctions.

Court decision in Western Energy Alliance v. Biden (D. Wyoming)

In another attempt to force the government to drill, on September 2, a judge in the federal district court for Wyoming held that the Department of the Interior legally delayed a federal oil and gas lease sale because,  “…postponing the first quarter 2021 lease sales was done to ensure NEPA (National Environmental Policy Act) compliance with several then-recent federal court opinions that negated previously authorized oil and gas lease sales.”   The court also rejected challenges to the program-wide “pause” authorized by executive orders (the same issue as in the 5th Circuit appeal above).

“The court reaffirmed that BLM has broad leeway to postpone lease sales in order to make sure that it considers the environmental impacts of leasing,” said Michael Freeman, a senior attorney at Earthjustice’s Rocky Mountain office.  According the Western Energy Alliance, the ruling “essentially gives the government a get-out-of-jail-free card when it comes to the environmental analysis required for any lease sales,” adding that if Interior Department says it’s not done, “it doesn’t have to hold sales.”  “If the agency never makes the decision, then we have no recourse,” said Ryan McConnaughey, vice president of the Petroleum Association of Wyoming.  (These quotes are from this article.)

Plaintiffs don’t interpret it that way, but it is hard to make the government do something, especially if it argues it is required by law to do other things first.  (Regarding the idea of mandating leases, it’s also hard to get out of meeting NEPA requirements, even if there is a deadline.)

Settlement.

On September 6, the Bureau of Land Management settled a lawsuit in the Montana federal district court involving previously sold oil and gas leases in Montana and North Dakota which will require it to evaluate potential effects on climate, which is similar to recent agreements for other leases elsewhere.  The agency agreed not to approve any more drilling applications on the affected lands until that new leasing decision is made. The agreements don’t include deadlines for new environmental reviews, and they don’t cancel any leases.

 

H.R 5631 -Tim Hart Act as Stand-Alone Bill

by
No Grass Creek Fire East of Deer Lodge Montana, from Hotshot Wakeup Twitter feed.

The Hotshot Wakeup person I think has a good point suggesting that people contact their Representatives to urge them to support the Tim Hart Wildland Firefighter Classification and Pay Parity Act (HR 5631) as a stand-alone bill, and get it out from under being used as a political football. Here’s the link.  At least it sounds plausible to me. Other views welcome.

It looks like Liz Cheney is the only cosponsor on the R side, don’t know why that is.  Maybe someone can explain.  Maybe you, if you call your R Representative’s Office and ask them. , especially if you live in fire country.   Maybe there’s already an article about this somewhere? But please refrain from any pre-midterm-related anti-R vitriol in the comments.

PS..if you’re interested, check out the amazing fire photos and videos on The Hotshot Wakeup twitter feed.  Fire folks send them in from all over. Example on of Bolt Creek Fire in Washington.

Bipartisan “Save Our Sequoias Act” Introduced: HR 8168.

by

I’ve got some questions for those in the know…

1) Can’t NFF already accept private donations for things? Didn’t know it was restricted.

2) In the distant past (1970’s) I recall a set of sequoia plantations in California in various places (known as Prof. Libby’s sequoia plantings). Did anyone ever round up what information might be available from them about reforestation? Are the trees still alive and measured?

 

WASHINGTON – Today, House Committee on Natural Resources Ranking Member Bruce Westerman (R-Ark.) joined House Republican Leader Kevin McCarthy (R-Calif.), U.S. Reps. Scott Peters (D-Calif.), Jim Costa (D-Calif.), David Valadao (R-Calif.), Jimmy Panetta (D-Calif.), Tom McClintock (R-Calif.) and 23 other members in introducing H.R. 8168, the Save Our Sequoias (SOS) Act. That link wasn’t working, so here is the text until that one goes live.Save Our Sequoias Act

Background

In the past two years alone, catastrophic wildfires wiped out nearly one-fifth of the world’s Giant Sequoias. Covering only 37,000 acres in California across roughly 70 groves, Giant Sequoias are among the most fire-resilient tree species on the planet and were once considered virtually indestructible. However, more than a century of fire suppression and mismanagement created a massive build-up of hazardous fuels in and around Giant Sequoia groves, leading to unnaturally intense, high-severity wildfires. The emergency now facing Giant Sequoias is unprecedented – the last recorded evidence of large-scale Giant Sequoia mortality due to wildfires occurred in the year 1297 A.D., more than seven centuries ago.

Despite the looming threat to the remaining Giant Sequoias, federal land managers have not been able to increase the pace and scale of treatments necessary to restore Giant Sequoia resiliency to wildfires, insects, and drought. At its current pace, it would take the U.S. Forest Service approximately 52 years to treat just their 19 highest priority Giant Sequoia groves at high-risk of experiencing devastating wildfires. Without urgent action, we are at risk of losing our iconic Giant Sequoias in the next several years. Accelerating scientific forest management practices will not only improve the health and resiliency of these thousand-year-old trees but also enhance air and water quality and protect critical habitat for important species like the Pacific Fisher.

The SOS Act will provide land managers with the emergency tools and resources needed to save these remaining ancient wonders from the unprecedented peril threatening their long-term survival. The bill would:

*Enhance coordination between federal, state, tribal and local land managers through shared stewardship agreements and the codification of the Giant Sequoia Lands Coalition, a partnership between the current Giant Sequoia managers.
*Create a Giant Sequoia Health and Resiliency Assessment to prioritize wildfire risk reduction treatments in the highest-risk groves and track the progress of scientific forest management activities.
*Declare an emergency to streamline and expedite environmental reviews and consultations while maintaining robust scientific analysis.
*Provide new authority to the National Park Foundation and National Forest Foundation to accept private donations to facilitate Giant Sequoia restoration and resiliency.
*Establish a comprehensive reforestation strategy to regenerate Giant Sequoias in areas destroyed by recent catastrophic wildfires.
**

SOS Act original cosponsors: U.S. Reps. Scott Peters (D-Calif.), Bruce Westerman (R-Ark.), Jim Costa (D-Calif.), David Valadao (R-Calif.), Jimmy Panetta (D-Calif.), Tom McClintock (R-Calif.), John Garamendi (D-Calif.), G.T. Thompson (R-Penn.), Mike Thompson (D-Calif.), Ken Calvert (R-Calif.), Anna Eshoo (D-Calif.), Mike Garcia (R-Calif.), Lou Correa (D-Calif.), Doug LaMalfa (R-Calif.), Ami Bera (D-Calif.), Jay Obernolte (R-Calif.), Sanford Bishop (D-Ga.), Young Kim (R-Calif.), Ed Perlmutter (D-Colo.), Dan Newhouse (R-Wash.), Kurt Schrader (D-Ore.), John Curtis (R-Utah), Tom Malinowski (D-N.J.), Russ Fulcher (R-Idaho), Kaiali’i Kahele (D-Hawaii), Michelle Steel (R-Calif.), Juan Vargas (D-Calif.), Pete Stauber (R-Minn.) and Josh Gottheimer (D-N.J.).

More than 90 organizations support the SOS Act, including: ACRE Investment Management, American Conservation Coalition, American Forest & Paper Association, American Forest Foundation, American Forest Resource Council, American Loggers Council, American Sportfishing Association, American Wood Council, Aramark Parks & Destinations, Archery Trade Association, Associated California Loggers, Association of American Railroads, Association of California Water Agencies, Bipartisan Policy Center Action, Boone & Crockett Club, Calaveras Big Trees Association, Calaveras County Water District, Calaveras County, California Assemblyman Vince Fong, California Cattlemen’s Association, California Farm Bureau, California Forestry Association, California Senate President pro Tempore Toni Atkins, California Senator Shannon Grove, Carbon180, Center for Climate and Energy Solutions, U.S. Chamber of Commerce, Charm Industrial, CHM Government Services, Citizens Climate Lobby, Citizens for Responsible Energy Solutions, Congressional Sportsmen’s Foundation, ConservAmerica, Dallas Safari Club, Delek US Holdings, Drax, Ducks Unlimited, Edison International, Enviva, Evangelical Environmental Network, Federal Forest Resource Coalition, Forest Landowners Association, Forest Resources Association, Fresno County, Giant Sequoia National Monument Association, Grassroots Wildland Firefighters, Great Basin Institute, Hardwood Federation, Healthy Forests, Healthy Communities, Houston Safari Club, International Inbound Travel Association, International Paper, Inter-Tribal Timber Council, Kern County, Kern River Valley Chamber of Commerce, Kernville Chamber of Commerce, Mariposa County, National Alliance of Forest Owners, National Association of Counties, National Association of Forest Service Retirees, National Cattlemen’s Beef Association, National Forest Recreation Association, National Wild Turkey Federation, Niskanen Center, Outdoor Industry Association, Outdoor Recreation Roundtable, PG&E, Placer County Water Agency, Placer County, Public Lands Council, Rocky Mountain Elk Foundation, Rural County Representatives of California, Salesforce, Salt River Project, San Diego Gas & Electric, Save the Redwoods League, Sequoia Parks Conservancy, Sierra Forest Products, Sierra Pacific Industries, Society of American Foresters, Springville Chamber of Commerce, The Nature Conservancy, Trust for Public Land, Tulare County Farm Bureau, Tulare County Fire Department, Tulare County, Tule River Tribe, Tuolumne County, Vista Outdoor, Weyerhaeuser Company, Wildlife Management Institute, Yosemite Clean Energy, and Yosemite Conservancy.

Figure 1. Footprints of six wildfires that significantly impacted giant sequoia groves – Rough Fire (2015), Railroad and Pier (both 2017), Castle (2020), and KNP Complex and Windy (both in 2021). Giant sequoia groves in or near the fires are shown in red.
NPS / Joshua Flickinger

Other Groups’ Point of View

Here’s a link to why a Coalition of Conservation Groups oppose it (thanks to Nick Smith).

It’s nothing more than a trojan horse to diminish important environmental reviews and cut science and communities out of the decision-making process.”

It seems like they would like the committee to be a FACA committee, which seems reasonable and to have some kind of public involvement (I’m not sure that the Park Service and the Forest Service would actually propose a project without public involvement. They also argue that the NPS and FS have enough CEs to do the trick already.

Oregon legislation to define “climate-smart” forestry?

by

I’ve been keeping my eyes open for how anyone is defining the management practices or outcomes that should qualify as contributions to carbon sequestration.  They usually seem to stop short of that level of detail.  This does, too.  However, it sounds like they are going to try to get there.  This is a 1/11/22 draft of LC 240, to be addressed at the legislative session beginning now. We would have an answer “no later than April 30, 2023.”

(2) The Institute for Natural Resources, in coordination with the Oregon Global Warming Commission, shall jointly with the State Forestry Department, the State Department of Agriculture, the Oregon Watershed Enhancement Board, the Department of State Lands and the Department of Land Conservation and Development, and in consultation with federal land management partners, develop:

(b) Recommendations for activity-based impact metrics …

(3) Activity-based metrics must be designed to evaluate progress toward increasing carbon sequestration in natural and working lands and waters, as measured against the 2010 to 2019 carbon sequestration baseline. Activity-based metrics may include, but need not be limited to, acres of lands or waters for which certain management practices have been adopted or acres of lands or waters that represent an increase in natural and working lands and waters.

SECTION 8. (1) As used in this section: (a) “Climate-smart agriculture, forestry and conservation practices” means practices that protect and restore resilient carbon stocks in native ecosystems and increase resilient carbon stocks in vegetation and soils in natural and working lands and waters.

Conservation groups should be able to lease land to protect it

by

(I figured this from High Country News originally came from the Property and Environment Research Center, “the home of free market environmentalism,” and I wanted to make that clear.)

In much of the rural West, environmental groups have a reputation for suing to stop natural resource development. But some, like the Wyoming group, are attempting a new strategy: purchasing what they want to protect. The approach, sometimes called conservation leasing, could bolster “30 by 30,” the Biden administration’s ambitious conservation plan to conserve 30% of the nation’s lands and waters by 2030, without ending the leasing revenue that state governments have long derived from resource extraction.

The only problem: It’s often illegal.

These century-old “use it or lose it” requirements were designed to deter speculation and encourage white settlement. But today, they can bias resource management in favor of extraction.

We may have discussed this before, but not in the context of “American the Beautiful.”  (Note: they seem to assume that not all federal lands would automatically qualify, and that at least those committed to energy or grazing would not.)  Why not change the rules to allow non-consumptive/preservation interests to pay to prevent development (for a contractual time period that would count towards 30 x 30) on publicly owned lands?  I suppose a couple of answers are that 1) they shouldn’t have to pay, and 2) that money could be better used for something else.  But would just removing the legal barriers to allow that option to be considered in lieu of energy or grazing for areas where environmental protection is more valuable be that bad of a thing?

More Info on Infrastructure Bill: Pollack and Fite on the Emergency Action Authority

by

Previously, we had wondered a bit about the Emergency Action Authority and its implications.  Here is one take from Marten Law’s analysis.

The IIJA establishes a new statutory categorical exclusion (“CE”) from NEPA for fuel breaks.[xvii] A statutory CE altogether exempts projects meeting the statutory CE’s requirements from NEPA’s environmental analysis requirements.[xviii] This new fuel break CE applies to fuel break projects up to 1000 feet wide and encompassing up to 3000 acres. It also applies to lands administered by either the Forest Service or the Bureau of Land Management. As agencies continue to confront increased wildfire risks, this will provide a secure and timely path forward for fuel break projects that are needed to facilitate effective wildland firefighting.[xix]

The Act also establishes new “emergency action” authority to “mitigate the harm to life, property, or important natural or cultural resources on National Forest System land or adjacent land.”[xx] The Secretary of Agriculture can use this emergency authority to address a wide range of needs, including salvage of dead or dying trees, harvest of frost or wind-damaged trees, the commercial and noncommercial sanitation harvest of trees to control insects or disease (including trees already infested with insects or disease), the removal of hazardous trees in close proximity to roads and trails, the removal of hazardous fuels, replanting or reforesting of fire-impacted areas, restoration of water resources or infrastructure, and reconstruction of utility lines and underground cables, over up to 10,000 acres.

The emergency action authority has two major litigation implications. First, it limits the NEPA analysis required for any qualifying project. The Environmental Assessment or Environmental Impact Statement need only consider the alternatives of action or no action rather than a range of alternative actions. That change eliminates a potent argument that challengers use in NEPA cases.[xxi] Second, a court may only enjoin an emergency action project if the plaintiff shows it is “likely to succeed on the merits.” This in effect abrogates the “serious questions” or “sliding scale” standard that the Ninth Circuit applies when analyzing whether to issue an injunction.[xxii] That change would make injunctions significantly less likely for emergency action projects, particularly in western states within the Ninth Circuit. In concert, these two policy changes may streamline projects that previously would have been delayed by litigation.

According to these authors, the new emergency action authority would affect how many alternatives are needed (and possible ensuing litigation about specific ones that weren’t analyzed) (as we had previously discussed), but these authors bring up the 9th Circuit  “serious questions” or “sliding scale” standard.