The Vital Role of Categorical Exclusions in Forest Restoration Projects: Hannah Downey

Here’s the link to Hannah’s paper:

Large and destructive wildfires are becoming more common across the West. Although several factors contribute to this trend, the declining health of our nation’s forests is a primary cause. Our forests are filled with excess dead and dying trees, brush, and other fuels—to the point where an area larger than the state of California is in need of restoration. Removing those fuels through mechanical thinning and prescribed fire are urgently needed to reduce wildfire damage and promote forest resilience. A new meta-analysis published in the journal Forest Ecology and Management found that combining mechanical thinning with prescribed burns reduces the severity of subsequent wildfires in an area by 62-72 percent.

The Forest Service heavily depends on categorical exclusions to help get work done. In an appearance before the U.S. House Natural Resources Committee earlier this month, Forest Service Chief Randy Moore emphasized that 87 percent of the agency’s NEPA compliance is done through categorical exclusions.

To be fair, we need to compare apples (fuels projects) to apples, not oranges (CE’s for administrative site renovations or renewing outfitter guide permits or…)

The Lawsuit

Recently, however, the Ninth Circuit Court of Appeals—which oversees Montana and other Western states—ruled to limit the use of categorical exclusions. In Friends of the Inyo v. United States Forest Service the Court held that the Forest Service cannot use categorical exclusions to approve a project unless the entire project fits in a single categorical exclusion. This decision could severely hamper the Service’s ability to conduct forest restoration work as the agency routinely cites multiple categorical exclusions for bigger projects that combine more or more needed actions.

The Impact

Amidst current frustrations over how slow forest restoration activities take place, the process will get even more cumbersome and tangled with this new ruling. For example, PERC researchers found it takes an average of 3.6 years for treatment to begin on a prescribed burn project when a CE is issued. This timeframe extends to 5.6 years when an Environmental Assessment (EA) is conducted and further increases to 7.2 years when an Environmental Impact Statement (EIS) is used. Without the use of CEs, our forests face a significant risk of being destroyed in catastrophic fires while awaiting for a project approval.


The hopeful news is that policymakers in Congress are working to expand the benefits of categorical exclusions. The Farm Bill proposal from the House of Representatives includes policies to expand categorical exclusions focused on healthy forests and reduced wildfire risk to 10,000 acres. The bipartisan Fix Our Forests Act would similarly expand categorical exclusions and reduce litigation over forest projects.

Here’s what Fix Our Forests Act says about litigation reform (sorry about the formatting).

(a) IN GENERAL .—A court shall not enjoin a fireshed3
management project if the court determines that the plain-4
tiff is unable to demonstrate that the claim of the plaintiff5
is likely to succeed on the merits.6
ERING INJUNCTIVE RELIEF .—As part of its weighing the9
equities while considering any request for an injunction10
that applies to any agency action as part of a fireshed11
management project, the court reviewing the agency ac-12
tion shall balance the impact to the ecosystem likely af-13
fected by the fireshed management project of—14
(1) the short- and long-term effects of under-15
taking the agency action; against16
(2) the short- and long-term effects of not un-17
dertaking the action.18
MAND .—20
(1) IN GENERAL .—Notwithstanding any other21
provision of law, a court shall not vacate or other-22
wise limit, delay, stay, or enjoin a fireshed manage-23
ment project unless the court determines that—24
(A) the fireshed management project will1
pose a risk of a proximate and substantial envi-2
ronmental harm; and3
(B) there is no other equitable remedy4
available as a matter of law.5
(2) R EMAND .—6
(A) IN GENERAL .—Notwithstanding any7
other provision of law, if a court determines8
that a fireshed management project will not9
pose a risk of a proximate and substantial envi-10
ronmental harm—11
(i) the court may remand the fireshed12
management project to the applicable13
agency with instruction to correct (includ-14
ing specific directions) the errors or defi-15
ciencies within 180 days; and16
(ii) an activity under the fireshed17
management project may be carried out so18
long as such activity does not affect the er-19
rors or deficiencies described in clause (i).20
(B) REVIEW .—Unless the court finds that21
the applicable agency entirely failed to prepare22
a required environmental assessment or envi-23
ronmental impact statement, on remand—24
(i) the court shall not require such1
agency to prepare a new environmental as-2
sessment or environmental impact state-3
ment; and4
(ii) such agency may use another for-5
mat, including a memorandum or errata6
sheet, to document any new analysis re-7
(d) LIMITATIONS ON CLAIMS .—Notwithstanding any9
other provision of law, a claim arising under Federal law10
seeking judicial review of a fireshed management project11
shall be barred unless—12
(1) with respect to an agency document noticed13
in the Federal Register, such claim is filed not later14
than 120 days after the date of publication of a no-15
tice in the Federal Register of agency intent to carry16
out the fireshed management project, unless a short-17
er period is specified in such Federal law;18
(2) in the case of an agency document not de-19
scribed in paragraph (1), such claim is filed not20
later than 120 days after the date that is the earlier21
(A) the date on which such agency docu-23
ment is published; and24
(B) the date on which such agency docu-1
ment is noticed; and2
(3) in the case of an authorization or action for3
which there was a public comment period, such4
(A) is filed by a party that—6
(i) participated in the administrative7
proceedings regarding such fireshed man-8
agement project; and9
(ii) submitted a comment during such10
public comment period and such comment11
was sufficiently detailed to put the applica-12
ble agency on notice of the issue upon13
which the party seeks judicial review; and14
(B) is related to such comment.15
(e) DEFINITIONS .—In this section:16
(1) AGENCY DOCUMENT .—The term ‘‘agency17
document’’ means, with respect to a fireshed man-18
agement project, a record of decision, categorical ex-19
clusion, environmental document, or programmatic20
environmental document.21
(2) NEPA TERMS .—The terms ‘‘categorical ex-22
clusion’’, ‘‘environmental document’’, and ‘‘pro-23
grammatic environmental document’’ have the mean-24
ings given such terms, respectively, in section 111 of
the National Environmental Policy Act of 1969 (421
U.S.C. 4336e).

CBD FOIA Finds BLMers Disagree About Lithium Mine Analysis Process

Interesting story from E&E News, and no paywall on this one (perhaps because it came as a link from Center for Western Priorities).  When groups disagree about a project, it seems like once again the BLM is darned if it does and darned if it doesn’ the interests of fair use, I can’t post the whole thing, but there are good parts I am leaving out.


A senior Bureau of Land Management official warned the federal government might be rushing the review of a controversial lithium mine in Nevada that’s at the center of a raging fight over an endangered wildflower, according to an internal email.

“This is a very aggressive schedule that deviates from other project schedules on similar projects completed recently and concurrently at the District and State,” said Scott Distel, a supervisory project manager, in a Dec. 21, 2023, email.

Distel told Douglas Furtado, a BLM district manager in central Nevada, the review of Ioneer’s Rhyolite Ridge project was poised to move forward with limited input. “The groundwater model is approved on 12/26/2023, without any edits or comments that need to be addressed,” he wrote in the email, which was also sent to officials at Ioneer.

Check out the email yourself.  I don’t know what the right way to go about it is, but in my experience agreement about processes, analysis and documents is difficult to get.  There are naturally forces to “move it along” versus forces to analyze more.  Sometime different specialists disagree about the same topic (e.g. fish bios and hydrologists). Someone has to make a call at some point.  Or maybe agencies will just give up on trying to do things.

The email illuminates the challenges federal regulators face in complying with legally required deadlines for completing environmental reviews of complicated projects under the National Environmental Policy Act. BLM and its parent, the Interior Department, declined to comment on the email, which the Center for Biological Diversity obtained under the Freedom of Information Act and shared with E&E News.

BLM’s ongoing environmental review of Ioneer’s proposed Rhyolite Ridge lithium mine has drawn national attention because of the sprawling mine’s potential impact on the habitat for an endangered desert flower, Tiehm’s buckwheat. The project is in the Silver Peak Range, about 40 miles southwest of Tonopah.

The CBD cited Distel’s email in an unsuccessful request asking BLM to extend the comment period on a draft environmental impact statement the agency released in April. That draft review concluded the mine — through fencing, locked gates and dust-tampering measures — would not drive the endangered wildflower to extinction.

Currently, BLM appears poised to make a decision on the mine in October. Once a record of decision (ROD) is issued, the project is expected to receive a conditional loan of up to $700 million from the Department of Energy.

According to Distel’s email, the revised schedule under NEPA shows BLM approving a “camera ready” final EIS in August along with a briefing at the agency’s headquarters, followed by a final ROD in October.


The timing, duration and intensity of environmental reviews have become an issue both within agencies and on Capitol Hill, as regulators review projects needed to produce minerals like lithium while protecting pristine areas and critical habitat.

Distel’s email illuminates the tensions.

Kevin Minoli, a partner at the law firm Alston & Bird and a former career EPA lawyer who served during the Clinton, Bush, Obama and Trump administrations, said the language Distel used about the “very aggressive” schedule is not incredibly unusual for federal officials. But Minoli said it does appear to reflect a federal employee’s concern with the time frame.

“What appears to be the case is the person expressing that they wish they had more time … to do something like this,” said Minoli, who also advises clients on complying with NEPA.

Minoli said the email appears to show BLM complying with revisions to NEPA that came into effect fairly recently through amendments that set two-year time frames for agencies to complete EISs. BLM confirmed the agency is complying with the Fiscal Responsibility Act (FRA) amendment to NEPA, which includes a two-year timeline for EISs.

“What I expect is happening is you’re seeing an agency midaction having to comply with that deadline and some concern about that being expressed,” said Minoli.

But Minoli cautioned against equating longer NEPA reviews with better work, noting that regulators can do good work quickly. He also noted that while some have been pushing for deeper reviews, especially for contentious projects, others have been long fighting to reach a final decision more quickly.

“People are probably unhappy on both sides, it’s a timing question,” he said.


Pat Parenteau, emeritus professor and senior fellow for climate policy at the Vermont Law and Graduate School, said amendments in the FRA don’t change the legal requirements for NEPA reviews. Any issues raised in the email will need to be addressed, said Parenteau, including those tied to the groundwater model, which was highlighted in Distel’s email.

“If this is, in fact, someone within BLM in a position to know, who’s raising questions about the process … if these are not corrected by the time the ROD is issued, it’ll be grounds for a lawsuit,” said Parenteau.

There is language in the law, Parenteau noted, that allows agencies to take more time to conduct reviews and EISs, but that will ultimately be up to BLM. He also emphasized that BLM isn’t alone in facing the pressure caused by artificial deadlines.

“We’re going to see a lot of these cases, a lot of these issues,” he said. “Any time you put artificial deadlines in the law, you run into this problem because it denies the reality of the way the world works.”


Bernard Rowe, managing director of Ioneer, said in a statement last week as the public comment period for the draft EIS closed, that the company has engaged with federal, state and tribal officials, as well as community members, for more than five years, and sought a “new standard for domestic lithium project development.” Added Rowe: “Listening has made our project stronger, and we look forward to addressing feedback to the Bureau of Land Management from the public comment period.”

Conservation groups and tribes disagree and are warning the draft EIS doesn’t give a full picture of just how much water the mine will use. The critics contend the mine could drive the Tiehm’s buckwheat to extinction. The plant was listed as endangered in December 2022.

Currently, eight subpopulations of the plant have been mapped and extensively studied within the mine’s project area. The most recent population census was conducted last May and June and counted 24,916 plants.

In the draft EIS, BLM concluded that while the plant’s desert habitat would be disturbed by construction of the Rhyolite Ridge project, the agency also pointed to steps that Ioneer would take to minimize and mitigate the potential damage. The company also modified its original plan to reduce the environmental impact.

A coalition of groups including the CBD, the Western Shoshone Defense Project, the Sierra Club and Earthworks argued in comments to BLM that the draft EIS is insufficient and fails to fully consider the effect on groundwater and cultural resources


I have much sympathy for the BLM,  and wonder whether the FRA timelines are retroactive for ongoing projects.   The BLM is definitely “darned if they do and darned if they don’t”. Also,  I wonder what the weight of one employee’s concern should be, when the complete array of tedious details of substance and process will no doubt be part of future litigation.

9th Circuit Appeals and the Inyo Exploratory (12 Hole) Drilling Case: Did The Forest Service Ask Them to “Do Violence to” NEPA? Updated

NOTE: This post has been updated with information from Dan Farber of UC Berkeley Law. Thanks, Dan!  I’ve added his thoughts in red below.

It’s a bit hard to keep track of what’s in the statutory amendments of last year and what’s in the new NEPA regs that Jon covered yesterday. I think this is a fascinating story that illustrates the confusion that can result when Congress and Admins mess around with the NEPA statute and regs..but this is only the tip of a future iceberg of glacial progress as the courts redo NEPA case law with the new NEPA regs. It reminds me a bit of the Paul Simon song:

Slip slidin’ awaySlip slidin’ awayYou know the nearer your destinationThe more you’re slip slidin’ away

The basic story of this case  is that there is a request for a permit for exploratory drilling which will be completed in a year as per an existing CE.  But the FS wanted them to do habitat restoration and monitoring, which would take longer.  So they used the habitat restoration CE for that. Here are the details of the project according to Courthouse News:

Kore Mining Ltd. wants to drill 12 holes, 600 feet deep, to try to find gold on federally owned land — which is legal, so long as it applies for a permit. The federally owned land in question is, as Mueller describes it, “a wide and gently sloping expanse of 1,848 shrubby acres” pocked with hundreds of holes bored by mining companies in the 1980s and 1990s. At the time, technical limitations meant that those holes couldn’t go deeper than a few hundred feet. But Kore Mining believes there might be gold up in them there hills and that deeper drilling might be possible today.

Kore’s proposal would require clearing vegetation and building about a 1/3-mile temporary access roads. The U.S. Forest Service concluded in 2020 that the project “was unlikely to have any significant effects on the environment” since it would take less than a year and require less than a mile of new roads.

During the public comment period that followed, numerous environmental groups, nearby towns and government agencies objected to the project. Of particular concern was the bi-state sage grouse, an iconic bird famous for its extravagant mating dances — “Picture a spike-tailed, puff-chested small turkey in a brown tuxedo, shaking and strutting in the brush,” Mueller wrote.

The Forest Service then said it would not allow Kore Mining to undertake any “disturbance activity” between March and June, the sage grouse’s mating season. It also said Kore would have take a number of steps to restore the land after its exploratory drilling, including returning the land to its original slope and sowing native seeds. And a biologist would have to monitor the area for three years after the drilling stopped.

Four groups — the Center for Biological Diversity, the Western Watersheds Project, Friends of the Inyo, and the Sierra Club — filed a lawsuit in October 2021 against the U.S. Forest Service and Kore Mining to halt the project.

“This drilling project will cause exactly the kind of noise and commotion that make bi-state sage grouse abandon their habitat,” said Ileene Anderson, a senior scientist at the Center for Biological Diversity, in a statement at the time. “It’s appalling that the Forest Service is willing to push these beautiful dancing birds closer to extinction for a toxic mine.” Environmentalists also worried about the impact the drilling would have to the groundwater in the area that feeds into the Owens River, which supplies water for Los Angeles.

So basically, some groups don’t want the project.  The court case seems to have focused on the two-CE issue;that is, they used two CEs instead of an EA.

Here’s what the Judge Mueller  said about this when finding for this in March of 2023.

While the mining operation was covered under the second exception, the habitat restoration, and in particular the three-year monitoring period, would of course take longer than a year, and would those need to be covered by that first exception.

“It is undisputed that all drilling, grading and construction will finish within a year; Kore will regrade the pads and roads and cap its wells within a year; revegetation is a nonherbicidal wildlife improvement for sage grouse; and Kore will construct less than a mile of new access roads,” Mueller wrote. The question, then, was: “Can a project be approved in two or more parts, each covered by a different exclusion?”

Mueller decided yes — though it may not be ideal, “a patchwork of individually-insufficient-but-collectively-sufficient exclusions can cover a single project or action.” Or: “Zero plus zero is zero.”

I do think that restoration is a different kettle of fish than other CEs, the whole point is to improve the environment.

Now as Dan Farber of Berkeley Law said in an interesting post today,  the (so-called) Fiscal Responsibility Act was signed in June 2023 (after the court decision), saying that

After the 2023 amendments, Section 111(1) of NEPA now defines a CE as “a category of actions that a Federal agency has determined normally does not significantly affect the quality of the human environment within the meaning of section.”  And section 106(a)(2) says that an agency doesn’t need an environmental assessment “if the proposed agency action is excluded pursuant to one of the agency’s categorical exclusions.”  It seems clear that the action  — a combination of drilling and restoration — does not fit “one of the agency’s categorical exclusions.”

However, that was after Judge Mueller made her decision.  So that changed the statutory landscape. Ah… but there was an appeal.

Dan says in his piece:

But what’s most striking isn’t what the court did discuss but what it didn’t mention : the fact that last year’s NEPA amendments  speaks directly to one of those issues. Apparently the word that NEPA was extensively amended a year ago hasn’t yet reached the federal courts.

So I asked Dan whether the statutes and regs for the original decision applied, here’s his emailed response:

The general rule is that an appeals court applies the law as it exists at the time of the appeal. The NEPA amendments were effective immediately, and there’s no indication in the statute that they apply only to agency decisions occurring after the amendments. So the Ninth Circuit should have considered them (or at least given some reason for refusing to apply them).  I don’t think that judges are really aware of the new law, to tell the truth, since they’re so used to operating in a setting where the statute itself is very vague and thinking all the rules come from the CEQ regs or the courts.

This is of concern (unless the goal of government is a full employment program for lawyers) for two reasons. Agencies can’t predict the future regulatory environment or future case law.  Also the idea that judges aren’t aware of this law.. this seems problematic.  Can lawyers make recommendations for topics for them to cover in their next training? Back to Dan’s original post.

The majority  said that the agency’s justification for avoiding the NEPA process was wrong, and that refusing to do an environmental assessment was such a basic violation of NEPA that it could not be considered harmless.   The dissent, on the other hand, says that the Forest Service had plainly taken as close a look at the environmental issues as it would have in an environmental assessment.  (If that’s true, one wonders, why didn’t the Service just do an environmental assessment in the first place?) For that reason, the dissent argues, any procedural error by the agency was harmless.


This is an example of why  Forest Service people sometimes think “litigation is a crapshoot”, as my colleague JR was known to say.  From a Sierra Club piece:

The Court held that “The Forest Service asks us to adopt a view of categorical exclusions that will swallow the protections of NEPA. We decline to do such violence to NEPA’s procedural safeguards.” (Court decision at p. 25). As the Court explained: “when an agency applies CEs in a way that circumvents NEPA’s procedural requirements and renders the environmental impact of a proposed action unknown, the purpose of the exclusions is undermined. That is the case here.” (Court decision at p. 24).

Just think about it.. Judge A says “0 plus 0 equals zero”; I say restoration is by definition positive, so the sum is >0, and the Appeals judges- I think do a bit of over-hyping (is that their usual kind of language?)- “do violence to NEPA’s procedural safeguards,””swallowing the protections”- I’d argue that using the restoration CE might regurgitate a protection or two.

Do they think Mueller was “doing violence” by agreeing with the FS? Or was she just “promoting” violence?

Anyway, back to Farber’s piece:

The dissent doesn’t have a bad argument, but there are some differences between what the agency did and the environmental assessment process that could be significant. The Service did solicit public input, but the regulations governing environmental assessments require fuller opportunities to participate. Instead, “agencies shall involve the public, State, Tribal, and local governments, relevant agencies, and any applicants, to the extent practicable in preparing environmental assessments.” Asking the public whether it agrees with use of a CE isn’t the same as involving them along with governments at all levels in the preparing an assessment.

Yet according to the Courthouse News article,

During the public comment period that followed, numerous environmental groups, nearby towns and government agencies objected to the project.

It sounds like the public involvement process was similar to that of an EA in that respect (without looking at the documents).  Here’s what Dan brought up in his email:

In terms of the harmless error doctrine, the idea is that you violated the proper procedure but that it didn’t affect the outcome — no harm, no foul.  The question I raised is whether we can be sure of that. In response to one of your other questions, we do know (as I said in the post) that there were a lot of comments filed. But were they as detailed as the commenters would have offered in an environmental assessment?  After all, they were really only designed to get the Forest Service to agree to at least consider the environmental consequences rather than doing a categorical exclusion.  If there had done an environmental assessment, would the state or federal fish & wildlife people have been consulted?

That’s a really interesting take. Every CE public comments I’ve read (that being, when people don’t like the project) have been more general than “does this CE fit”? I’ve appended the summary of the response to comments below.

In fact, the agency did originally say an environmental assessment was needed, but the company complained and the agency quickly reversed itself.  (Is it a coincidence that this was the Trump Administration?) Maybe the agency should have stuck with its original position rather than shortcutting the process in its haste to approve the mining project.

Remember the 9th Circuit judge (appointed by Obama) agreed with the FS that it was a  legitimate approach.  I’m calling “unnecessary invoking of Trump” here.

In addition, an environmental assessment would have required a  Finding of No Significant Impact (FONSI), which would also have had to discuss alternatives to the proposal.  None of the judges cites any discussion of alternatives by the agency.  We don’t know if there were other, less sensitive, locations that might have been used. If there had been an environmental assessment, the agency would have had to discuss that.

This is exploration.. not a final plan.  It could well not be economic to extract there or there might not be any gold.  It makes sense to me to look at alternatives when an actual mine is proposed.  Exploration to me is mostly collecting information that is useful in preparing environmental documents and .. there is a CE for that.


I think this illustrates a couple of things.. how judges can disagree, how some of them might not be able to keep up with NEPA at this point in time. My own experience with industry is that they did not want us to use available CEs because if it’s going to be litigated, then there’s better documentation and it’s safer. Or so the timber industry individual said, and so our OGC folks told us. If it hadn’t been for the appeal, the two CEs would have worked.

I also think Dan’s comment here is of interest, when do the facts of the case matter, and when is the idea that applying the law to this case would lead to some kind of generic CE-piling

In terms of piling up CEs, if the Forest Service’s theory was right, it wouldn’t just apply to this case.  It could potentially give agencies the power to use a bunch of CEs, shortcut the normal procedures for environmental assessment, and then claim that even though they didn’t used the required process, it was all o.k. in the end.

But of course all this is moot with the new amendments to NEPA.

You may be right that this is a situation where there couldn’t possibly have been an environmental impact, but then you wonder why there was so much opposition from the Sierra Club and others. 

My experience is that slowing a project, step by laborious legal step, is a strategy to stopping it.  I’d guess that this isn’t about the exploratory wells at all but about making an inhospitable environment for the developers.  I doubt that if the FS does an EA, that there will be no further litigation.  The company can look uphill to possible litigation on the EA, an EIS for the mine, litigation, appeal court rulings,  and so on.  Maybe the next Admin will refuse to defend the FS for some reason, who knows? With current interest rates, this degree of uncertainty would make companies (and investors) wary.

If we project this onto renewable energy projects, solar, wind and transmission may be better off because there is no exploratory stage, as with geothermal. Anything mining related will have trouble, I predict, even strategic minerals.


Here’s the response to comments:

This action was originally listed as a proposal on the Inyo National Forest Schedule of Proposed Actions (SOPA) and updated periodically during the analysis. The project was first published in the SOPA on January 1, 2021. Public scoping was opened on April 8, 2021 and closed on May 13, 2021, which included a one-week extension of the original scoping period. Scoping letters were mailed to one address and electronic delivery was made to another 37 project subscribers through GovDelivery. Comments were collected online in the Comment Analysis and Response Application as well as through hardcopy, and email. In response to public requests, the Responsible Official decided to extent the scoping period by one week, and notified the public with a news release and email to the original email list.
The comments received expressed concerns on a number of subjects that included potential impacts to tourism, wildlife, cultural resources, water quality and recreation which was primarily about the fishery on Hot Creek. Comments also addressed geothermal and seismic activity, air quality, noise and light pollution. Technical studies completed in response to comments include KORE Long Valley Exploration Sage‐Grouse Lek Baseline Noise Monitoring and Drilling Noise Analysis; and Hydrogeologic Evaluation. Additional project design features and/or mitigations measures were also added to the plan of operation. These include:
• Sound barriers for equipment to reduce noise that might affect sage grouse.
• Shielded and directed lighting to limit potential light pollution.
• Air quality permits, if required, to be obtained through the Great Basin Air Quality
Management District
• Operator is responsible for immediate repairs of any, and all damages to roads, structures,
and improvements, which result from the operations.
• Noxious weeds will be controlled.

Most of the public comments associated this exploration drilling project with the development of a  long-term open pit mine and processing facility, which has not been proposed. The purpose of a  mineral exploration project is to assess the potential for mineral concentration at a volume that would be economically feasible to produce and does not automatically lead to an actual mine. An application has not been submitted or proposed for a mineral extraction project and if that were to occur, that application would be processed as a separate project.


The latest and greatest NEPA requirements

Image: Scout Environmental

For any NEPA nerds out there, the last few years have seen an unprecedented tug-of-war over the law’s requirements.  In 2020, the Trump Administration put its stamp on the CEQ regulations implementing NEPA, the first substantial editing of its procedural requirements since 1978.  Upon taking office, the Biden Administration began to undo many of the changes.  On October 7, 2021, CEQ finalized the first phase of its changes to the 2020 Regulations, in which the agency made a handful of targeted revisions.  On June 3, 2023, President Biden signed into law the Fiscal Responsibility Act of 2023 (FRA), which made a number of changes in the law itself, summarized here as follows:

  • Codify that environmental impact statements should include discussion of reasonably foreseeable effects of a proposed action, reasonably foreseeable effects that cannot be avoided, and a reasonable range of alternatives to the proposed action. (Sec. 102(2)(C); 42 U.S.C. § 4332(2)(C)).
  • Clarify requirements for determining whether to prepare an environmental document and the appropriate level of NEPA review. (Sec. 106; 42 U.S.C. § 4336).
  • Clarify the roles and responsibilities of lead agencies and cooperating agencies, including designation of such agencies. (Sec. 107(a); 42 U.S.C. § 4336a(a)).
  • Promote development of a single environmental document. (Sec. 107(b); 42 U.S.C. § 4336a(b)).
  • Set page limits and deadlines for environmental impact statements and environmental assessments. (Sec. 107(e) and (g); 42 U.S.C. § 4336a(e) and (g)).
  • Direct agencies to develop procedures for how, under Federal agency supervision, project sponsors may prepare environmental assessments and environmental impact statements. (Sec. 107(f); 42 U.S.C. § 4336a(f)).
  • Provide time lengths and circumstances for when agencies can rely on programmatic environmental documents without additional review. (Sec. 108; 42 U.S.C. § 4336b).
  • Establish a process for Federal agencies to use another agency’s categorical exclusions. (Sec. 109; 42 U.S.C. § 4336c).
  • Require CEQ to conduct a study of online and digital technologies to help provide for efficient reviews and improve public accessibility and transparency. (Sec. 110; 42 U.S.C. § 4336d).
  • Define terms used in NEPA, including cooperating agency, environmental document, lead agency, major Federal action, participating Federal agency, programmatic environmental document, and special expertise. (Sec. 111; 42 U.S.C. § 4336e).

On July 31, 2023, CEQ published proposed Phase 2 Revisions to the agency’s NEPA implementing regulations.   On May 1, 2024, the Council on Environmental Quality (CEQ) published its final Bipartisan Permitting Reform Implementation Rule (Final Rule).  These will be the NEPA requirements for the foreseeable future (that would be until January, 2025 anyway).  The Federal Register Notice with the final regulations may be found here.

Nossaman is providing a series of reviews of various aspects of the changes that have been made.  They provided this initial overview of what they think is noteworthy (their perspective seems usually be that of a private party):

  • Changes in the definition of “major federal action”;
  • Changes to the way federal agencies approach NEPA’s threshold question of whether the effects of a major federal action are “significant”;
  • Codifying environmental justice and climate change as among the effects that must be examined during the NEPA process;
  • Updated requirements relating to public engagement;
  • Codification of CEQ’s 2023 greenhouse gas guidance;
  • Additional flexibility for federal agencies to establish new categorical exclusions;
  • Codification of CEQ’s longstanding practice of relying on mitigated findings of no significant impact (FONSI);
  • Providing clarity on the requirements for mitigation to form the basis of a mitigated FONSI;
  • Removal of language added by the 2020 Regulations that sought to limit the ability of third parties to challenge NEPA determinations; and
  • Adoption of provisions intended to speed the NEPA review process.

The second installment, discussing the first two bullets, is found here (others will follow).  One of the topics it addresses is the criteria for “significance” that would require an EIS.  The new regulation mostly affirms past practices, but it explicitly recognizes a situation that may arise for “restoration” proposals on public lands.  In determining significance:

Agencies may also consider the extent to which an effect is adverse at some points in time and beneficial in others (for example, in assessing the significance of a habitat restoration action’s effect on a species, an agency may consider both any short-term harm to the species during implementation of the action and any benefit to the same species once the action is complete).  However, agencies shall not offset an action’s adverse effects with other beneficial effects to determine significance …

The Preamble warns:

In some circumstances, an effect may be significant due to the harm during one period of time regardless of the benefit at another.  For example, if implementation of a habitat restoration action may extirpate a species from the area, then an agency could not reasonably rely on long-term habitat improvements resulting from the action to determine that the overall effect to the species is not significant.

(I would like to say this is just an extreme example to make the point that if short term effects may be significant, you can’t discount them based on long-term benefits to avoid preparing an EIS.  However, they follow this with a comparison to mitigation, where it IS possible to offset adverse effects with beneficial mitigation to the point that they are no longer significant.)

“Indirect containment” for San Juan wildfire

We’ve had some good discussion recently (which searches couldn’t find) of how to count acres burned by wildfires towards burning targets, and how to comply with project planning requirements (i.e. NEPA and ESA) for such actions.  An implication I got was that a national forest could count a lot of acres if it just let a wildfire burn, and there wouldn’t be any process requirements.

Well, this sounds like the opposite of that, and like what I think should be the proper way of doing this – a wildfire started in an area that had been “prepped” for a prescribed burn.  Assuming that “prepped” includes the usual public  participation and effects analysis.

Fire managers plan to expand the footprint of a 10-acre lightning-caused wildfire burning northeast of Dolores on the Haycamp Mesa next week, and could burn upward of 4,500 acres.

Last month, the Dolores Ranger District announced plans to burn 4,577 acres across Haycamp Mesa Units 5, 6 and 9. Fire managers plan to use existing roads as fire lines within which they would contain the blaze.

The Spruce Creek Fire started Tuesday afternoon along the northern perimeter of Unit 5.

“It’s all prepped and ready to go, conditions are ideal,” said Pat Seekins, prescribed fire and fuels program manager for the San Juan National Forest. “It’s low-intensity surface fire, it’s doing exactly what we need it to do.”

If the weather continues to cooperate, fire managers hope to burn between 4,000 and 5,000 acres. Seekins said crews have prepared around 5,600 acres to burn.

“With prescribed fire this spring, we’ve accomplished just shy of 4,000 acres, which is good – we’ve had a good spring,” Seekins said. “But we’re taking this opportunity to expand those acres.”

It’s not clear exactly how active they would be to “expand” those acres.  Interestingly,

Last year, fire managers used three natural blazes that began inside units already prepped for treatment to return fire to the landscape in the San Juan National Forest. With the help of firefighters, those three wildfires ultimately treated 4,000 acres of forest.

Is the San Juan just lucky, or well-prepared, or does this happen a lot?

Inventory of Environmental Permitting Tools

The Forest Service and BLM are part of  “permitting world,” so while this is a little NEPA-nerdy for TSWites…

I ran across this application inventory from the Federation of American Scientists , their idea being to:

“survey permitting tools for interested users, open up lines of dialogue for cross-application learning, and highlight where we see needs for further permitting tech investment. ”

It’s pretty interesting to look at the federal lineup of apps.. I didn’t know that EPA has all EISs since 2012 online (of course, I retired in 2012); also CEQ has a comprehensive list of all CEs. Hopefully the descriptions of FS and BLM apps are accurate.

New Flathead National Forest Supervisor interview

Anthony Botello took the job as forest supervisor on the Flathead at the beginning of the year, and provided this extended interview to the Missoulian.  This may be paywalled, but I’ve pulled out a few quotes related to things I tend to talk about.

Staffing of NEPA specialists is especially hard:

We have staffing challenges all across our workforce, but the one that pops to mind right now — because much of what we do revolves around very smart people who lead our ID (interdisciplinary) teams through our NEPA (National Environmental Policy Act) process, and those are folks that are in high demand and we have very limited numbers of them that are interested in our jobs.

For example, we have three interdisciplinary teams on this forest that do the work all across the forest, and we plan projects that then we go and implement. It could be timber, it could be fuels reduction, recreation. And we need team leaders — we call them environmental coordinators or team leaders — to lead those teams to get us through that legal NEPA process. And we’re struggling, not just this forest but the forest I came from was struggling.

Condition-based NEPA:

Some projects have a very focused purpose and need, they’re very focused in what we’re wanting to do, and so we have more of the traditional, our specialists go out there and monitor and look at conditions and then use that for our analysis to determine.

And then we have some places where we want to look at bigger landscapes, we want to look at more adaptive management, so we pull into this idea of, let’s make conceptual decisions and then when we go to implement we’ll do more of the site-specific look at things.

A new forest plan is a good thing:

We’ve got really good strong language in our forest plan. The forest plan that we have here is a relatively new plan. In my career I’ve worked on forests with 20-, 30-year-old forest plans. The Payette had a relatively new plan when I was there, the Wallowa-Whitman had a pretty old plan.

And this one, thankfully, has been redone as of ’18. In that, we worked very closely with some of our U.S. Fish and Wildlife Service, Montana Fish, Wildlife & Parks partners to come up with the standards that are in there.

And our forest plan — through public involvement, through NEPA, through line officer decision — withstood all of those thresholds, which was good. And we’re implementing the forest plan. The forest plan does have some pretty good, strong, prescriptive language about all those things — about roads, about (recreation) sites, about grizzly habitat — it’s a very contemporary plan when it comes to that.

Litigation and policy decisions:

The role of a line officer is not to interpret any kind of court ruling, decision, etc. We wait for our agency to promulgate a rule or a regulation.

(Follow-up question)

Just to make sure I understand: In a situation where the forest plan or a project loses in court in a certain issue, any sort of reaction to that is not going to come from you as the forest supervisor, it’s going to come from higher-up in the agency with either a new rule or amendment to a plan? And then when that comes down, you simply keep following the plan or the rule? 

Kind of, yeah. Litigation, obviously, can affect the way we manage. But there’s a whole bunch of steps between that and changing our forest plan. We have a legal staff that advises us on that, and until that happens we’re managing the way our forest plan has guided us to manage.

There’s a whole bunch of steps that would happen between some theoretical court case and us changing our management, and we’ll do that when it goes through the process that it needs to go through before it changes something that we’ve already adopted.

Condition-Based Management: Forest Service FAQs

Apologies to the Forest Service, the WO Press Office provided this excellent summary of  “What is Condition-Based Management: FAQs” in February,  and it got lost in my e-pile.  My idea was that people of all persuasions often mean different things by CBM and that our discussion would be clearer if we started with “What the Forest Service Thinks it is” since they are the ones using it. There are six pages attached here and I only excerpted the first questions below. Conceivably, we could also look at cases in which the use of CBM wins in court and when it loses, and see if that relates in any way to the topics as addressed below, or to other factors. I was hoping that some law students would look at these cases and share their observations. The Forest Service Office of General Counsel probably has done this work and shared it with the Forest Service, so if anyone would like to share that, it would help our joint learning also.


What is Condition-Based Management (CBM)?
CBM is a management approach which supports responsiveness and flexibility between planning and  implementation in natural resource management. Condition-based management allows for proposed treatments to be aligned—post-decision but prior to implementation—with current conditions on the ground. It does this by focusing on collecting the right data at the right time and selecting the right management activity to move toward desired conditions. Validation surveys completed prior to implementation will determine the current precise site conditions and the best treatment(s).

Here is how it works. At the onset of project planning, known or expected environmental conditions are examined as well as a range of possible management activities. This is done by using mid-scale and site-specific data of current conditions to propose a variety of appropriate treatments to meet the purpose and need and move toward desired conditions. This framework of expected environmental conditions, possible management activities, and likely outcomes are what is disclosed and assessed throughout the NEPA environmental analysis process. Then, once a NEPA decision is made but prior to implementation, current site conditions are confirmed where implementation is to occur. The appropriate management activities are assigned for the site conditions at that time according to the selection criteria and range of management activities in the NEPA analysis and decision. If adjustments are needed to what was proposed, these are made within the constraints of the identified and analyzed range of possible management activities and design features.

NEPA Requirements and CBM
Condition-based management is a method to meet NEPA’s requirements, not to avoid or shortcut them. The increased flexibility CBM offers requires additional work in developing the proposed action, analyzing effects, and engaging the public, and is designed to implement the right treatment in the right place.
CBM projects must meet the site-specificity and public involvement requirements of NEPA. There is no get-outof-NEPA-free card with CBM. CBM is both front-loaded (NEPA) and back-loaded (validation). The courts ultimately decided that NEPA is a procedural statute with twin aims requiring agencies to (1) consider the environmental impacts of their proposed actions and (2) inform the public that they (the agencies) considered environmental concerns in their decision-making process.

It is incumbent upon the Forest Service to provide enough site-specificity in the proposed action, existing conditions, and effects analysis in order to comply with NEPA. A CBM project needs to define and analyze the effects from a range of management activities for defined site conditions in the project area. Using common and easy-to-measure selection criteria (e.g., stand density, level of mistletoe, amount of invasive species) and filters (e.g., vegetation type, critical habitat, nesting habitat) to delineate site-specific conditions for proposed management activities are ways to establish site-specificity. This also gives flexibility to implementers (for example; avoiding important new TES species habitat, putting the right treatment in the right place to move toward desired conditions, and revising stand boundaries if needed to reflect current site conditions).

The following components are recommended in a CBM project:
• Describe the rationale/reasoning for using the CBM approach for the project in the Purpose and Need section. See “When and where should condition-based management be used” section below.
• Use best available site-specific data, for example stand-level data (or data on groups of stands) to describe existing conditions.
• Define a range of treatments/prescriptions needed to move the project area toward desired conditions.
• Based on site-specific data, develop selection criteria (e.g., vegetation/habitat conditions) that will be used to determine which management activities, or range of treatments, should be prescribed, as well as habitat or other filters that will control where treatments will NOT be considered (i.e., condition-management pairings, if-thens).
• Develop design features to be used in alternatives, including those connected to the habitat and other filters described (areas you won’t treat). Include “caps” on number of acres for each management activity/treatment.
• Map anticipated treatment areas by alternative in as much detail as possible.
• Analyze the impacts/effects from the most anticipated treatments for each alternative. Don’t analyze the worst-case scenario, but the “expected,” “anticipated,” or “most likely” scenario or alternative. Clearly and carefully set out all assumptions and methods used in the analysis. Conduct the analysis at the stand or groups-of-stands scale to make the analysis as site-specific as possible. Make the ecological benefits clear.
• Be transparent with the public in identifying the agency’s expectations and anticipated scheduling/timing for implementation. Develop an estimated implementation plan in the NEPA
documents and share with the public.
• Identify in the implementation plan and in the decision how the agency will conduct the required “validation” prior to implementation, such as in a validation checklist. The Responsible Official must ensure that all validation work occurs.

Science informs CBM in the proposal, in the selection criteria used, and in the proposed management activities that will be used with certain site conditions to move them toward desired conditions and make forest ecosystems more resilient to disturbances such as climate change and insect and disease infestations. CBM, as in any other NEPA, uses the best available science to determine what treatments may be needed to do so, to support your effects analysis, and relay uncertainties, but allows the flexibility to determine what is best for site-specific conditions at the time of implementation (rather than a preset prescription based on what is expected).

Why use condition-based management?

Condition-based management allows managers to make decisions with the flexibility to respond to changes in on-the-ground conditions and confirm the right treatment is prescribed and conducted at the right time. This is important because site conditions may change by the time management activities are implemented, they may change rapidly due to disturbance, or a certain order or timing of implementation may be needed. Using a CBM approach works well when there is enough known information to conduct a reasonably detailed analysis and fulfill the twin aims of NEPA. CBM assures that the assigned management activity is responsive to any changes in environmental conditions and is the appropriate treatment to move toward desired conditions. With
the focus on conducting the right treatment(s) for the current condition, more precise implementation choices can be made and there is more certainty in meeting the project purpose and need.

When and where should condition-based management be used?

The CBM management approach is best used when vegetation management activities are being assessed in a landscape where there is a need for flexibility in assigning treatments due to the potential for environmental changes over time. The rationale for this approach and the process for how CBM will be implemented is best described clearly and upfront in the project NEPA document as well as in the decision.
Some situations that indicate when and where CBM may be applicable include:
• When site conditions are dynamic and unpredictable due to reasonably foreseeable environmental stressors, such as insect and disease outbreaks, invasive plant encroachments, and climate change.
• When implementation may take place over a long period of time after the decision, such as in larger, landscape-scale projects.
• Where existing or current data is sufficient to predict effects and outcomes from treatments, but additional site-specific surveys may be needed to confirm the precise current conditions and assign activities at the time of implementation.

These situations are independent of each other and all of them do not need to be present for the potential use of CBM. Condition-based management is not needed when site conditions are predictable and site-specific information and field data are robust and comprehensive for fine-grained analysis. It is recommended that you don’t use CBM if it’s not needed.


What Do We Think? BPC Goldilocks Report on Permitting Reform: 1. Public Engagement

Reminder: why we are interested in “permitting reform”? 1. BLM and FS authorize energy projects, 2. think tanks involved have really smart people and more political clout than traditional forest groups, but 3) my experience with Coastal think tanks is that may not be talking to NEPA practitioners. So they have fun and novel ideas that may actually get implemented, and maybe we can contribute by some ground-truthing.

As I’ve pointed out (yes, I know, tediously) before, there seems to be a thread of “if only agency practitioners did their jobs better” that I first noticed at CEQ.

CEQ: your documents are too long.  Agencies: but case law requires it.

CEQ: programmatics should be used more.  Agencies: they generally don’t do much in practice.. suck up a lot of time and go out of date readily.

(Note that recently the Biden Admin said it had to redo an LNG analysis as it was out of date after five years (not sure it was a NEPA analysis, but still); if it takes three years to do a programmatic.. you do the math)

CEQ: if you only did better public involvement, you wouldn’t have litigation.

What these views have in common is a kind of punching down on the lowest ranking people in the system, and not looking at the problem as real-world policy disagreements that need to be ultimately settled through political processes.

Anyway, let’s check out what BPC has to say.

The Bipartisan Policy Center recently published “Finding the Goldilocks Zone for Permitting Reform.”  and if TwitX is to believed, folks from there are currently making Hill visits.

How does BPC characterize the “permitting reform” quest?

A more efficient permitting system for energy infrastructure would reduce energy costs, increase energy reliability, increase quality of life, and reduce emissions.

One could argue that “a more efficient permitting system for fuel treatment projects and prescribed burns would reduce risks of catastrophic wildfire and associated safety, health, watershed, wildlife and infrastructure impacts.” So maybe these would be relevant to other kinds of FS and BLM work?

They used stakeholder roundtables to help develop and rate the recommendations across two dimension: Effectiveness and Controversy.  Let’s see what they came up with.  It’s kind of a neat approach.  So let’s see what we think of these.. I’ll post each set of recommendations in a separate post.  We can discuss and I’ll give feedback to the BPC.

It seems to me that the question facing energy infrastructure is “why do we have to have this here and impact my community and wildlife and so on?” It doesn’t seem to me that any of this really answers the question of “why here and not there?”

If we are talking about energy infrastructure (onshore and offshore wind turbines, solar installations, transmission lines), it looks like their most promising is:

Conduct and provide resources for extensive community information hearings that address public comments and concerns of the community .

Which to me is a bit like “do public involvement better”.. which is good, but hard to say it increases efficiency in any way.  Some people just don’t want projects no matter how they are educated.  I’ve had grumpy people turn around with more information, but at the end of the day that’s not what delays projects.

I also thought it was interesting that BPC thought that this.. which sounds a bit like the successful Blue Mountain Partners in our world:

Establish a monitoring committee for individual projects, comprised of local stakeholders, that ensures standards are met and provides an avenue for continued public engagement for the life of the project [Pg. 21]

Here are their 3’s..

Require or incentivize agencies to engage stakeholders before developing a public notice of intent to prepare an Environmental Impact Statement [Pg. 23]

This is interesting. Right now it seems a bit random.  Like the FS probably does before an EIS for a large vegetation project; and maybe that counts for the national OG EIS, but I don’t think it helps increase “efficiency”.

The underlying idea seems to be “if only agencies had better public involvement processes, there would be less resistance and projects that are unpopular in some quarters will move forward readily.” I think good public involvement processes are important, and I also know that the FS and BLM have pretty robust ones,  and there are still disagreements about the project at the end of the day.

The funniest one to me was this one, which they fortunately rated as “not worth discussing”.

Establish commissions to advise agencies on the design, implementation, and evaluation of public participation processes [Pg. 24]

Increase efficiency by .. establishing commissions!

These ideas seem to reflect the “if practitioners only did it right, there wouldn’t be a problem” school of thought.

Next: Linear Infrastructure

Hermits Peak Calf Canyon and Luna Post-Fire Recovery Project: Draft EA in One Year

Thanks to Tim at the Hotshot Wakeup for pointing out this project.

Here’s the link to the project documents. The EA is 60 pages, including five pages of response to comments.  The draft EA was released on August 14 2023, and the final DN and FONSI on October 30, 2023.  There were two fires involved, Hermits Peak Calf Canyon in 2022, and the Luna Fire in 2020.  Acreage and time for the project: 24,420 acres over the next 1-10 years or until completed.

Some interesting things about it:

* Speed- draft EA out in one year.

* Tiers to FEMA programmatic.

* Uses emergency authorities so no  objection process (helped with speed).

* As far as I have been able to ascertain, the woody material is being given to local not-for-profits or governments to distribute.  There are no sawmills in the area.

Here’s the clause in the DN about objections:

“The Hermits Peak Calf Canyon and Luna Post-Fire Recovery Project has been approved by Forest Service Chief Randy Moore for use of the Emergency Authority Determination under Section 40807 of the Infrastructure Investment and Jobs Act of 2021 (Public Law 117-58 Nov. 15, 2021 ). Under section D in this authority,

An authorized emergency action carried out under this section shall not be subject to objection under the predecisional administrative review processes established under section 105 of the Healthy Forests Restoration Act of 2003 (] 6 U.S. C 6515) and section 428 of the Department of lnterio,; Environmental, and Related Agencies Appropriations Act, 2012 (16 USC 6515 note; Public Law 112-74).”

Here’s the project description:

“The Proposed Action provides the opportunity to implement a suite of restoration activities on approximately 24,420 acres over the next 1-10 years or until completed, as part of the Hermits Peak Calf Canyon integrated response and recovery approach to the current disaster and to possible future events associated with FEMA-4652-DR-NM. The “Proposed Action” section of the EA lists four items that the decision incorporates. Per the Final EA “Purpose and Need” section, implementation of the project as analyzed includes:
• Aerial re-seeding
• Re-forestation
• Ground-based material removal
o Using ground-based equipment on steep slopes
o Removal using conventional ground-based equipment
o Personal fuelwood
o Temporary road use on 58.1 miles, with decommissioning of these routes after
project completion
o Treatment of slash, including pile burning
• Recreation site stabilization
• Other recovery efforts, after assessments have been completed within the Hermits Peak Calf Canyon Fire portion of the project area:
o Noxious weed abatement (treatments approved in the Final Environmental Impact Statement for the Invasive Plant Control Project. Carson National Forest and Santa Fe National Forest (USDA 2005),
o Restoration and reforestation of fire-adapted vegetation types,
o Restoration of riparian areas,
o Post-wildfire hillslope stabilization treatments, including aerial seeding,
o Post-wildfire channel treatments,
o Post-wildfire road, culvert, and trail flow diversion treatments,
o Post-wildfire ash, sediment, and debris removal and infrastructure repairs,
o Structure demolition, relocation, or alteration, and
o Hydraulic capacity improvements and protection of water infrastructure.
Based on the resource specialists’ analysis/reports, as summarized within the EA, and tiering to FEMA Programmatic Environmental Assessment for the State of New Mexico Watershed Resiliency and Post-Wildfire Treatment Projects, the implementation of the Proposed Action and associated activities (including design features) can be implemented such that the proposed project will not result in a significant impact. This determination is based on the following:
• How well the selected alternative achieves the need.
• How well the selected alternative protects the environment and addresses issues and concerns.
• How well the selected alternative complies with relevant policies, laws, and regulations.

My decision to implement the Proposed Action is based on how well the alternative responded to the purpose and need and public comments received during the public involvement process. My decision facilitates the need to address recovery actions, particularly for the Hermits Peak Calf Canyon Fire as part of the integrated response for this emergency while also addressing vegetation recovery needed within these burned areas. My decision best meets the purpose and need to aid in recovery efforts, while complying with applicable laws and regulations and addressing the public’s concerns. In making this decision, we thoroughly considered issues and comments identified during scoping and from the public during the 30-day Draft EA comment period. Our decision balances public concerns and the need to restore and participate in integrated recovery efforts.”