NEPA Research Project

Science Friday: Research on EAs vs. EIS’s, Mortimer et al. 2011

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We haven’t come back to Ryan Sabelow’s  question for a while.  He said

“I would love to see the results of a survey of district rangers, local forest NEPA people and biologists on the challenges of doing this work on a landscape level.”

Certainly there are plenty of financial and organizational challenges, as have been studied.  But specifically about NEPA, the closest I could find was this Mortimer et al. paper from the Journal of Forestry in 2011, funded and developed through the NEPA for the 21st Century research project. There’s a great deal of interesting information in this short paper. I think it would be helpful for practitioners today to engage with this paper and its findings.

Let’s look at the methods first.

This article is an amalgam of three related research efforts, each with its own methodological approach. The first was a qualitative pilot study relying on primary environmental document analysis and subsequent in-depth personal interviews with 25 respondents in the US Forest Service (n = 8), the National Park Service (n = 6), the Bureau of Land Management (n = 9); and the US Army Corps of Engineers (n =2) in the winter of 2006-2007.

These numbers seem low (though I’m not a social scientist) and this was a while (15 years) ago.

On Mar. 20, 2008 an invitation to participate in an online survey was sent to all identifiable ID team leaders of recreation-related NEPA processes within the US Forest Service involving the issuance of an EA or EIS between December 2005 and March 2008.

Why recreation projects? The authors have a variety of reasons, including the importance of travel management at that time. Still, I would have selected vegetation management projects.

As such, these projects typify the complexities of many other types of projects involving multiple stakeholders and are squarely within the dominant paradigm of multiple uses of the national forests.

The third study analyzed all federal court cases filed from Jan. 1, 1989 to Dec. 31, 2006, in which the US Forest Service was a defendant in a lawsuit challenging a “land-management” decision.

The authors focused on wins and losses on the NEPA claims.

Here are some quotes:

The interviewees presented several themes for preferring an EIS over an EA that went beyond the considerations outlined in the CEQ regulations: [4J
• The threat of litigation and the ability to withstand legal challenges:
“Our solicitors push us to, they would much prefer us to do an EIS because it’s easier to defend in court.”
“The decision with sometimes doing an EIS is whether it’s going to litigation or not …”
• The desire or ability to incur or demonstrate significant environmental impacts on the landscape with an E1S:
“If you really want me to have an EIS, then I’m going to go for the gusto and have some significant impacts.”
“We had no idea what the outcome was going to be, hut with an EI5 you can have a significant effect. And we wanted to have a significant effect on the landscape.”
• The level of public controversy:
“If you have more than a 30% suspicion that if you try to go the EA route someone is going to stop you or threaten to sue you, you’re better to … put your NOI out and circulate a draft EIS.”

I’m not sure that the above is still true, but it was in my day. In fact, we often have the “they should have done an EIS discussion” here on TSW.

Here’s what they came up with numerically:

Possibly discussion-worthy parts of the conclusions..

On the other hand, excessive analyses have delayed critical decisions and commonly produce unintelligible documents of little usefulness to any audience, which may often obfuscate rather than disclose or clarify agency decision making processes (Sullivan et al. 1996, US Forest Service 2002, Stern and Mortimer 2009). Our  study suggests that a more detailed understanding of how ecological risks and social risks influence agency environmental analyses could further illustrate the extent to which process risk aversion influences the achievement of the intents of the NEPA and agency objectives concerning land management.

And:

Any assessment of risk particular to litigation and the NEPA process is inherently subjective and uncertain. For example, our findings contradict the prevailing wisdom among agency respondents that an EIS is more legally robust than an EA and, therefore, preferred when litigation over a project is expected. Although we focused specifically on travel management projects, data suggest that at a broader scale the pattern of document defensibility is similar (Table 7). As such, each of these behaviors may be contributing to the well-accepted notion that the agency’s resource management obligations have been compromised by excessive an.d unnecessary analysis (US Forest Service 2002) in efforts to strengthen certain areas of the NEPA document and the administrative record.

A point I would have made, had I reviewed this paper, is that there are other key actors that have a role in the EA/EIS decision; those being OGC for USDA or Solicitors from BLM.  This is difficult, as with so many aspects of litigation, I’m not sure they are allowed to participate in surveys (?).  It doesn’t really help to tell FS NEPA practitioners what the “data show” if the folks who need to be convinced are the in-house counsel.  I would be very interested in hearing from those retirees; so far my efforts to rope them in to these discussions have been unsuccessful.

Our Joint NEPA Study III: Introducing the “Index of Annoyance”

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We had a number of good ideas for research topics discussed earlier this week.  I’m going to post some research that’s been done, and some of my own ideas and experiences. TSW readers are encouraged to submit posts either with your own ideas or research you consider relevant.  These may serve to generate more ideas and/or to hone the ones you already have.

Unusually enough, we actually had a question by a journalist Ryan Sabelow, reporter for the Sacramento Bee on Twitter. I removed some language.

As to Ryan’s point, there have been some studies along the lines he suggests, including budget and staffing, and I’ll talk about one in the next post on this.

Still, Ryan’s friend was expressing something… litigation has an impact, that is commonly believed among many Forest Service folks,  but has not been shown in the relevant literature. So there’s a gap between academia (and others) and practitioners. It’s not the academics’ fault.. it’s our own fault, in my view,  for not explaining our point of view better. Of course, it’s awkward or impossible to do that in public without being retired (except if you’re anonymous), so there’s that.

The tweet from Ryan’s friend reminded me of a conversation I had about 10-15 years ago with Denise Keele, who had co-authored a NEPA litigation paper, which also concluded … everything is fine. I was joking when I said “let’s develop an index of annoyance..talk to practitioners about what factors about litigation they find irritating, and develop a score for each project. Perhaps people could get extra pay for working on projects with a high projected annoyance score?”  Now I think perhaps even describing annoyance factors will help to bridge the gap.  I have some that I have written about, and more that I will add, and others are welcome to add theirs via post or comment.

I’ll give an important caveat here. Of course, litigation has an important place in the public policy ecosystem. Agencies need to follow the law.  Sometimes Agencies screw up and their shortcomings need to be brought to light.  Litigation can be a way to achieve these goals outside the political process.  But with the need (not agreed to by everyone) to build renewable energy projects in certain places, and to help protect communities from fire (not agreed to by everyone) in other places,  it seems like it’s a good time to talk about how this way of achieving goals is working to all parties involved.

Even talking about the landscape of litigation, from the FS practitioner’s point of view, can be uncomfortable outside the office (thank you, Ryan’s friend, and Ryan, for sharing this).  FS folks generally don’t want to be offensive, and realize that litigation is part of the government system that we pledged to uphold.  Plus whining or complaining is not always a preferred cultural norm. At the same time, I think it’s important to hear the FS employees and stakeholders’ side of the story (as well as the perspective of litigants, of course!).

So my idea is to help others understand how different kinds and approaches to litigation may impact FS people, the NEPA process, and stakeholders involved in projects.  There may be some value in simply airing frustrations; but certainly it will help  folks like Forrest and Ryan understand some of the complexities.  Both things are true: (1) generally NEPA works well and (2) in some cases it’s frustrating.

The end result might be- besides mutual understanding- a paper that academics can cite, e.g.,  (TSW et al. 2023) “litigation of projects can have perceived negative impacts on employees and stakeholders.  These include both short-term impacts during the litigation process, and long-term adaptive impacts as litigation and agency decision-making co-evolve.”

 

Let’s Co-Design and Co-Produce a NEPA Study! II. What Are Your Questions?

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Forrest asked the question yesterday , “how can a research project be designed to provide input that might actually be used in a productive way by the agency.  Perhaps co-production is part of the answer to that, but there might be other factors (e.g. perhaps we should focus on some variables that are more amenable to change?).”

My thoughts on that are we have more than 100 years of land grant institution experience about how to link users and producers of knowledge.  Researchers need to be in dialogue with practitioners and understand their needs. I’ve found this to vary by type of school (land grant or liberal arts), the specific school and sub-school culture, discipline and individual professor’s interests (and their kind of appointment, research, teaching and extension percentages).  Plus of course what there is research funding for.  Which is a whole other study that could be done: Factors that Influence Faculty/Practitioner Interaction. To get at that, we could take the forest-related faculty at a variety of schools and survey to what extent they interact with people in practice.. and through what virtual or physical places, meetings, whatever.  I remember a prof at Oregon State (was it Tom Adams?) saying he learned as much from teaching at Silviculture Institute as he taught (or maybe it was CEFES).   But I digress.

Anyway, in terms of questions, it’s  OK to be simply curious but also OK to be focused on practical outcomes.  So in the broadest context of the “NEPA” ecosystem (NEPA-system) we have these actors:

Directly Involved:

Forest Service- line officers, NEPA folks, specialists

Parties Who Want to Do/Benefit From Projects-  communities, industries (recreation, powerlines, etc.), wildlife interests and so on

Parties Who Do Not Want or Want to Change Projects – ENGOs  and/or local groups of various kinds, with or without legal representation

OGC

DOJ

Judges

Observing:

Media

Politicians

Researchers

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What questions do you have about anything within the NEPA-system?

Here’s one example, if you’re the kind of person who needs ticklers… like me.  Chief Moore mentioned in his talk at SAF that he thought BLM in some cases, was more efficient with NEPA (can’t remember his exact words off the top of my head).  That would bring up the question for me.. what would we find out if we surveyed a bunch of bi-agency folks (with experience in NEPA in both agencies) on the topic of “what works best for one that the other agency might try?”.

If you can’t think of any right now, please feel free to come back to this thread as we discuss more and put your questions (and proposed ways of getting at them, if you’d like) in the comments.