It seems to me that the report somewhat downplays the importance of case law compared to the statute. Here’s how it looks to me.
1. There is the statute, simple and beautiful.
2. There are the CEQ regs, which mostly lay out rules for doing documents. They’re OK. Like defining “major federal action.” CEQ (regardless of individuals there) always seems to think that things are fine,and if agency practitioners would just do things right, there would be no problems with NEPA.
3. But then there are the Courts, who make their own (dare I say sometimes arbitrary and capricious?) decisions about what the statute and regs really mean. I think many folks don’t have problems with 1 or 2, but it’s 3 that seems to drift from 1 and 2. Even though we’re not lawyers we can still have opinions about what people meant when they wrote the statute and the regulations.
Anyway…there is also 4) in part to clarify for courts what was meant, the FS wrote its own NEPA regs.
It seemed to me that the discussion in the Taskforce report was a bit as if only 1 and 2 exist.
A question about this report has to do with the idea “there aren’t that many NEPA cases.” That may be true in some narrow sense. But there are plenty of cases that throw NFMA, NEPA, and ESA into the complaint. So far I haven’t figures out how we have discussed all the different litigated projects we have here on this blog, and yet there aren’t that many NEPA cases. Maybe someone can help explain.
Another question is I was always told NEPA is a procedural statute. It reads like a procedural statute. I didn’t know it was debatable or open to anyone’s interpretation. I thought it either was or wasn’t. That seems mysterious. But it reminded me of Sally Fairfax’s critique (published in Science (???)) in 78. Look what she has to say about paperwork and EIS’s. Remarkably astute, in my view. I don’t have access to Science but somehow in my old files I found here some back and forth between her and someone who disagreed, in which she summarizes some of her arguments.
If Professor Fairfax’s arguments are still true, that’s 25 years ago.
Bill Imbergamo’s hit it out of the park with his oral and written testimony. I wanted to give him a hug.
Norm Johnson was awesome about the variable retention and science, children’s books, etc
Risch was spot-on also.
If you haven’t watched, I highly recommend it. VERY worthwhile investment of time.
So far I managed to get to a part where Wyden notes that NEPA “requires a strong stomach” or something equivalent, somehow I couldn’t find it when I went back..
There’s a great deal to think about here.. I am not as sanguine as the Chief about large landscape NEPA. If someone wants to, couldn’t they go to court after a big blow down or fire (or new climate models or ???) and ask for a redo on the basis of new information and changed conditions? Fundamentally, it would require a change with some folks giving up power, which people usually don’t do voluntarily. Especially those who really believe that they have the right perspective.
The Black Hills doesn’t have any of those ESA animals which are involved in all the Montana and other lawsuits.. is that a coincidence? Perhaps not as applicable as a person might think. I feel like the Administration likes to think things will be fine if collaboration is done and they do huge NEPA. I am a fairly optimistic person but I don’t see that changing, say, Mr. Garrity’s view on the couple of R-1 timber sales because the NEPA is at a larger scale.
The pilots have a great deal of attention and support, in terms of getting various barriers out of the way. Even if the pilots are successful, this does not necessarily predict that everyday kinds of work will be equally successful. My optimism tells me that we would get further by determining what the real barriers to active forest management are.
Anyway, there’s a lot here. What’s your favorite quote? Did you want to hug anyone?
Jun 20: In the U.S. Court of Appeals, Ninth Circuit, Case No. 08-17565.Appeal from the United States District Court for the Eastern District of California. The Appeals Court indicates that, “This court’s opinion filed on February 3, 2012, and reported at 668 F.3d 609 (9th Cir. 2012), is withdrawn, and is replaced by the attached Opinion and Dissent. . . The full court has been advised of the petition for rehearing en banc and no judge of the court has requested a vote onwhether to rehear the matter en banc. . . The petition for rehearing and the petition for rehearing en banc, filed on April 18, 2012, are denied.”
According to the Appeals Court, Plaintiff-Appellant Pacific Rivers Council (Pacific Rivers) brought suit in Federal district court challenging the 2004 Framework for the Sierra Nevada Mountains (the Sierras) as inconsistent with the National Environmental Protection Act (NEPA) and the Administrative Procedure Act (APA). The Appeals Court said, “The gravamen of Pacific Rivers’ complaint is that the 2004 EIS does not sufficiently analyze the environmental consequences of the 2004 Framework for fish and amphibians.” On cross-motions for summary judgment, the district court granted summary judgment to the Forest Service.
The Appeals Court rules, “Pacific Rivers timely appealed the grant of summary judgment. For the reasons that follow, we conclude that the Forest Service’s analysis of fish in the 2004 EIS does not comply with NEPA. However, we conclude that the Forest Service’s analysis of amphibians does comply with NEPA. We therefore reverse in part, affirm in part, and remand to the district court.”
In a lengthy dissenting opinion, one Justice concludes, “. . .the majority makes two fundamental errors: First, it reinvents the arbitrary and capricious standard of review, transforming it from an appropriately deferential standard to one freely allowing courts to substitute their judgments for that of the agency. . . Second, the majority ignores the tiering framework created by NEPA. Because the majority ignores such framework, it fails to differentiate between a site-specific environmental impact statement (EIS) and a programmatic EIS that focuses on high-level policy decisions. . .”
It appears that an impossibly comprehensive study of the entire Sierra Nevada “watershed” will not be required for the amended Sierra Nevada Framework plan. If the Forest Service loses this case, it would have to limit the harvest of trees within thinning projects to 12″ dbh in some areas, and to 20″ dbh in the rest of the Sierra Nevada. This decision means that the Forest Service has followed NEPA law since the amendment has been in force. If the Pacific Rivers Council had prevailed, we would be seeing a complete failure of the Forest Service’s timber management program throughout the Sierra Nevada. Sierra Pacific Industries has plenty of their own lands, stocked with plenty of trees in the 12″-20″ dbh size. There would be no need for SPI to bid on the thinning projects that would be offered by the Forest Service under the old diameter limits. The small amount of harvested trees between 20″ and 29.9″ dbh are what pays for the biomass removal needed for true restoration. When thinning projects reduce wildfire threats, and actual wildfire impacts, water quality and fish habitats are improved.
I received a request from Amanda Jahshan of the Natural Resources Defense Council for NEPA “Success stories”. The accumulation of information is being funded by NRDC, which I think is good because I remember when I worked for the Forest Service, we had to yard those up in-house at least once, that I recall. Plus I remember finding similar stories for the Gridlock-Busting Awards during that period.
So below is what she is looking for and I’m hoping we will treat her and her request with our well-known respect and hospitality, and also post them here. Certainly we can mutually learn from successes as well as the “problem children” we discuss every day.
I’m working on a project collecting NEPA success stories from across the country. These stories will be used for a publication (similar to this 2010 ELI publication. I came across your blog and thought that you and/or your contributors might have some leads. All stories are welcome, but we especially need recent stories (preferably since 2000) that:
1. Demonstrate the value of public input – e.g., projects made better through public input or project outcomes shaped by public input
2. Show how the NEPA process resulted in cost-savings – e.g., by choosing a less expensive alternative or avoiding unnecessary costs or more efficient project
3. Projects that avoided unanticipated problems because of public input/expertise
4. Demonstrate how NEPA increased the likelihood that the public would accept a project
5. Highlight the role NEPA plays in environmental justice and avoiding disparate impacts
It’s interesting to me how the questions are framed.. it sounds like “NEPA” is really about the value of public involvement, and not so much environmental disclosure- in fact, you could substitute the word (often critiqued by folks in the environmental law biz) “collaboration” for “NEPA” in some of these questions. While I think the difficulties that are discussed on this blog, associated with NEPA are not from the public involvement process, but having to bullet-proof analysis documents to be able to prevail in litigation.
So I think it would be good to post “success stories” here, of using collaboration or public involvement without NEPA as well just to make the case that public involvement is broader than NEPA. For example, the recent planning rule directives had a public comment period and they are not going through NEPA. I also wonder whether the environmental justice impacts to low-income rural people and communities have been adequately addressed through NEPA, because NEPA only addresses impacts of federal action, not inaction.
If you would like to send your stories directly to her, here is her email ([email protected]).
This is a test. If this works everyone could enter a project or two from his or her own area and then we could compare what happens across the country, and then ask questions.
So the first step is this: Take a look at this spreadsheet in google docs. Check and see if you can edit it and if you think the columns are the right ones to ask the questions that we might want to ask.
Note: This post is not just an excuse to run Martin’s photo again.
Planners: I’m looking for a photo that shows a real forest plan and all its associated documentation for future posts.
Here’s a link to another story about the Supreme Court case.
Below are a couple of excerpts I found interesting:
One key question confronting the court will be whether environmentalists have the “standing” to sue against a general forest plan, as opposed to a specific project proposal, by virtue of their making recreational use of the national forests. To gain standing in federal court, individuals must show they’ve been injured or face imminent injury.
It seems to me that no one faces “imminent injury” from a forest plan other than, as planner DeAnn Zwight once remarked, by dropping one on your foot. Or potentially tripping over a pile of Appendices. Or falling asleep while reading one (very likely) and smoking…
Apparently DOJ agrees with me, below is a quote from an E&E story.. if you read past the “project htat would “threaten the forest’s ecosystem”.
Pacific Rivers Council “has not identified even one project that will adversely affect even one member,” the service wrote in court documents.
The agency also wrote the challenge was “un-ripe” for a lawsuit because it had yet to sign off on a specific project that would threaten the forest’s ecosystem.
“Absent approval of a site-specific project or other irreversible commitment of resources by the Forest Service, [Pacific Rivers Council]’s challenge to that programmatic decision is merely an abstract disagreement not appropriate for judicial review,” the agency wrote.
“The only role for a court is to insure that the agency has taken a ‘hard look’ at the environmental consequences of its proposed action,” Pacific Rivers Council’s attorneys said in a legal brief, adding that “agencies cannot take a ‘hard look’ unless they have reasonably identified the consequences of their actions.”
It was interesting in the 2001 Roadless Rule case, it appeared that very general and not very accurate environmental analysis was OK. Some have suggested that different levels apply if you are documenting a decision “not to do things” as opposed to “doing things”. I’m not sure I read that in NEPA, though. But plans, of course, don’t “do things” either. So perhaps if we looked at the 10th Circuit Roadless case and the 9th Circuit Pacific Rivers case, we would have to argue that levels of analysis can differ from decisions that “don’t allow things” to ones that “might could (plans are all about “might could”) allow some things, and not allow other things. I wonder what would happen if the same standards of analysis were applied to the 2001 Roadless Rule and to the Sierra Nevada plans? After all, that was a final decision on not allowing things, and any actions allowed by plans have to go through specific NEPA.
I was also curious about this quote:
In that 2-1 appellate court decision, the 9th Circuit panel concluded the Forest Service in 2004 failed to adequately study the effect of dramatically revised forest plans on Sierra Nevada fish populations.
“The Forest Service provided no analysis despite the fact that the 2004 (plan) allows much more logging, burning, road construction and grazing,” Judge William A. Fletcher wrote for the appellate panel.
It’s hard for me to believe that there was “no analysis”. What “Joe, I thought you were going to do the fish chapter. Oh, no, I guess we forgot? Well it’s too late, the document’s printed. I guess we’ll have to see if anyone misses it. Especially since this document is sure to be appealed and litigated.”
Anyone from familiar with this case, please shed some light.
Below is an excerpt: Pacific Rivers Council Cert Reply is a link to a legal document I think submitted to the Court by DOJ, the questions that the Justices will consider. Thanks to readers for sending both. Lawyers on the blog are invited to explain more..
If someone has the link, please send and I will update.
The Supreme Court agreed today to review the standing of an environmental group challenging a Forest Service management plan for the Sierra Nevada.
At issue is a 9th U.S. Circuit Court of Appeals ruling for the Pacific Rivers Council that invalidated a regional management plan for 11 national forests covering 11.5 million acres.
The council successfully argued in appeals court that the Forest Service’s 2004 revised environmental impact statement and framework failed to comply with the National Environmental Policy Act for assessing potential damage to fish species.
The case dates back to the mid-1990s, when Congress found habitat in the sprawling Sierra Nevada — home to 61 fish species and 35 amphibian species — had become severely degraded. It directed the Forest Service to develop a new environmental impact statement for the service’s 11 management plans.
After years of delay, the Clinton administration issued a final statement to conserve and repair aquatic ecosystems in November 2001.
The George W. Bush administration re-examined the statement and in January 2004 issued revisions. According to court documents, the new document made significant changes, including “substantially” increasing total acreage to be logged and the size of trees that could be harvested.
It also paved the way for new logging roads and reconstruction of existing roads and reduced grazing restrictions for commercial and recreational livestock.
The Pacific Rivers Council brought a lawsuit in May 2005 contending that the revised framework did not analyze the environmental consequences of those changes and, therefore, did not comply with NEPA for fish and amphibians.
At issue for the court is whether the environmental group has standing to bring the lawsuit: In other words, could the group prove it was harmed by the agency’s action.
The San Francisco-based 9th Circuit in a February 2012 ruling said the group has standing. They “have used, and will continue to use, the national forests of the Sierra in a variety of places and in a variety of ways,” 9th Circuit Judge William Fletcher wrote. The court held that the 2004 framework didn’t comply with NEPA for fish but did for amphibians.
In asking the Supreme Court to take the case, the Forest Service argued that the environmental group failed to meet that bar.
Pacific Rivers Council “has not identified even one project that will adversely affect even one member,” the service wrote in court documents.
The agency also wrote the challenge was “un-ripe” for a lawsuit because it had yet to sign off on a specific project that would threaten the forest’s ecosystem.
Here are the issues:
United States Forest Service v. Pacific Rivers Council, 12-623
Issue: (1) Whether respondent Pacific Rivers Council (PRC) has Article III standing to challenge the Forest Service’s 2004 programmatic amendments to the forest plans governing management of 11 Sierra Nevada Forests when PRC failed to establish that any of its members was imminently threatened with cognizable harm because he or she would come into contact with any parcel of forest affected by the amendments; (2) whether PRC’s challenge to the Forest Service’s programmatic amendments is ripe when PRC failed to identify any site-specific project authorized under the amended plan provisions to which PRC objects; and (3) whether the National Environmental Policy Act required the Forest Service, when adopting the programmatic amendments, to analyze every type of environmental effect that any project ultimately authorized under the amendments throughout the 11 affected forests might have if it was reasonably possible to do so when the programmatic amendments were adopted, even though any future site-specific project would require its own appropriate environmental analysis before going forward.
The hardwood forest, Maryland. Who loves hardwoods?
I spent the last week or so in D.C. (see photo above), struggling with various “free” wi-fi’s that didn’t work. I had a carefully crafted post on collaboration and NEPA that I lost when, as I was typing away, the connection drifted away. Even while I was writing this post, WordPress logged me out. Anyway, just a reminder to others to write your posts in a word processor and copy them over if you want to avoid frustration.
Yesterday I saw this story by Marshall Swearingen, an intern at High Country News. On the whole, I thought it was a pretty good story but was missing a counter-argument to the “bad for NEPA” claim.
Below are a couple of excerpts.
“There are some of us in the environmental movement who are very skeptical of ‘collaboration,'” says Gary Macfarlane, ecosystem defense director for the Friends of the Clearwater, “because we see it as a way, basically, to circumvent existing environmental laws.”
The idea of collaborative process has had its skeptics ever since it got a foothold in the 1990s, as people looked for ways through the polarization of the timber wars. The basic idea was to get traditional foes like loggers and wilderness advocates into the same room to hammer out proposals that might spare the Forest Service some costly litigation. But critics complain that these local, collaborative groups shift power from urban conservation interests to a rural minority.
Now, “existing environmental laws” is fairly broad. How can a process “circumvent” ESA? Perhaps they are talking about NEPA… which is only one law.
But Macfarlane is concerned that the forest’s managers are moving too fast in a direction that undermines the 1970 National Environmental Policy Act (NEPA), a view shared by the other groups that signed onto the letter to Vilsack. Under NEPA, the Forest Service analyzes and proposes various alternative actions, then fine-tunes them by considering public comment before making a decision. But in the collaborative process, Macfarlane fears, the proposal drafted by locals will be given inordinate weight, and people who don’t attend the meetings, but comment during the NEPA review — which the collaborative draft must still go through — won’t be heard
Did we just go from “environmental laws” to one procedural law? I find this confusing because in the development of the Forest Service NEPA regulations and the NFMA regulations, collaboratively developed alternatives were thought to be a good thing and were written in to the regulations. As readers are also aware any regulations need to be “cleared” by other agencies, which include the Council on Environmental Quality and the Department of Justice. CEQ folks are supposed to be the experts on NEPA. For our partisanized friends, it seems unlikely on its face that in a D administration, CEQ and DOJ would seek to undermine NEPA. Perhaps the FS led them astray, somehow? Based on my knowledge of Beltway power relationships, this seems exceedingly unlikely.
I think there is something there, but it’s not about NEPA. I have an associate (I’ll just call him TIG for “timber industry guy”) who feels the same as Macfarlane about “violating NEPA.” If you listen carefully, though, he is afraid that the collaborative will get overly invested in a dumb idea (say diameter limits, in his worldview) and the flush of joy at achieving agreement, plus the inertia of changing something collaborated upon, will overwhelm common sense, scientific reality, or careful analysis. Which, in the world of humans, is a reasonable fear. And it actually may be the same as Macfarlane’s fear.
But I think we need to go back to the way things used to work to really understand. In the past, the FS, helped by others, would develop a “more management” alternative and a “less management” alternative and attempt to get somewhere in the middle. Each coalition of interests would have discussions with the Forest Service. Maybe there would be phone calls from the Administration to the RF or the Supe providing positive vibes for moving in the direction of that Administration’s supporters. But the interpolation of all these points of view in the preferred, at the end of the day, was internal. The true deciders were the Forest, the Region, the Administration and (if litigated) the Courts. These remain the ultimate deciders.
It seems to me that the advantage of collaboratively developed preferred alternatives is that it is out there on the table as to how the alternative was developed, not behind closed doors. So if there’s a dumb idea somewhere in there, people will have an opportunity to comment and the ultimate decision will be made by the same old forces.
When I observe the Black Hills FACA Committee, the Forest Supe doesn’t always do what they recommend. But the Supe has to stand up and say what his arguments are for not doing so.
The bottom line is that there is no argument really that it “violates NEPA” to have a collaboratively developed proposal. People have had special places at the table, based on various characteristics, including political connections and the threat of litigation. They still have those very same places when the ultimate decision is made.
So it’s really up to the forest folks of the first few forests (how’s that for alliteration?) to show that collaborative ideas will be carefully reviewed and the critiques during the comment period will be taken seriously. In fact, I think it would be cool if there were both ends of the spectrum, (the old combatants) and the forest folk sat down and the forest folks explain to them why they landed where they landed, when they land there (and someone there taking note and posting them).
Now sometimes there can be tension within the forest and between the forest and upper levels in terms of the decision (including the political appointees). But the FS is an executive branch agency, and as the judge in the 10th Circuit roadless case appeal (about Wyoming not being a cooperating agency? I don’t remember the context) it’s not a violation of NEPA if someone decides to do something you disagree with. As the judge said “elections have consequences.” I have observed both kinds of Administrations letting their opinions be known during the forest planning process, and they always have rationales for what they do. You may disagree with them.. you may even think they are “illegal” but time and courts can tell about the latter (if you have the bucks to litigate).
Despite their differences, both Bishop and Grijalva said they are optimistic that the 113th Congress could reach bipartisan compromises on public lands issues that have eluded it over the past two years.
Bishop, for one, said he could support conservation bills if Democrats are willing to allow management decisions on federal lands to be made locally rather than in Washington.
“I may surprise some people with what I’m willing to do if people are willing to make trades,” Bishop said. “If there’s anything that Grijalva wants to work with me on that moves it so local people actually control their own destiny, I’m actually very willing to talk to him about it.”
But Bishop acknowledged that there was little, if any, discussion last Congress about a viable package of lands bills that could pass Congress, despite the introduction of a handful of Republican-sponsored conservation bills.
The House’s biggest conservation act last Congress was passage of a bill elevating Pinnacles National Monument in California to full national park status. Some conservation measures reached the Senate floor last Congress, but the chamber, on the whole, didn’t accomplish much more. It, too, failed to introduce a public lands package.
Bishop said much of the subcommittee’s agenda will also depend on his discussions with Sen. Ron Wyden (D-Ore.), the new chairman of the Senate Energy and Natural Resources Committee, with whom Bishop said he sees a greater chance at compromise.
Grijalva said he is willing to limit his ambitions for land protections in order to meet Republicans halfway.
“While the rhetoric may not be scaled down, I think there is some room for compromise on some scaled-back public lands issues, particularly around designations and acquisitions,” he said. “We can’t disengage from that bluster, but I hope we take some responsibility for the fact that it was a dismal, dismal performance [last Congress] passing legislation and getting legislation done.”
Reading the quotes from Bishop and Grijalva, it sounds like well, they could disengage from the bluster and actually do something productive. I wonder what it would take for the people in the middle to hold this committee accountable for something more productive than “rhetoric” and “bluster”?
Here’s a story from the Rapid City Journal on attempts (with CEQ) to design NEPA documents and decisions in a more flexible way.
Here’s an AP story as well, not so clear about the NEPA, more about the funding.
Black Hills National Forest officials will rely on streamlined regulations and extensive commercial tree thinning in a new attack plan against the mountain pine beetle aimed at protecting vulnerable areas before the bugs hit.
Forest Supervisor Craig Bobzien said Monday in releasing details of the Mountain Pine Beetle Response Project, which was developed over more than a year and included public comments and environmental review, that it would target 248,000 acres of highly vulnerable woodlands within the 1.2-million-acre forest for treatment in advance of beetle.
Commercial thinning would be used on almost half of those acres — 122,000 — over five to seven years to make them more resistant to the destructive bugs and less likely to erupt in wild fires, he said.
“It’s hard work and in many cases it’s expensive work,” Bobzien said. “But it’s worth the effort.”
Bobzien said the response project includes a variety of treatment options and costs about $70 million over the five to seven years. On an annual basis, that is slightly more than current forest management costs weighted heavily toward pine-beetle control work and fuels reduction to reduce the chances of wild fires.
Bobzien said the forest could put additional money to good use through the response project. But its effectiveness is about more than just money, he said.
“We’ll be able to respond much faster and adapt to what’s going on out there in nature. We’ll be able to move at a much-faster pace,” Bobzien said. “This allows us to be out in front of the beetle, which is where we’re most effective.”
The project was authorized by the Healthy Forests Restoration Act of 2003, aimed at a better response to the buildup of hazardous fuels in thick forests and including work against insects and disease. Additional pressure in recent years for streamlined regulations came from private citizens, state and local officials, and the timber industry, as well members of the state’s congressional delegation.
With support from the delegation, the Forest Service worked with the U.S. Environmental Protection Agency and the White House Council on Environmental Quality to find acceptable ways to streamline regulations, Bobzien said.
Rep. Kristi Noem and Sen. John Thune, both Republicans, celebrated Bobzien’s announcement Monday.
This is one of the current efforts at helping the Forest Service use NEPA in ways that facilitate dealing with 21st Century problems. 4FRI is another example, and there are others. Observers will note that the impetus to do this is still there, even though it’s not an R administration.
