NEPA

What Have We Learned Since the COS Report?

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Thanks to the generosity of the Society of American Foresters, we can post articles from the Journal of Forestry May 99 edition on this blog. This edition of the journal focused on the COS Report. Today I’ll post the Norm Johnson article here.

Since 1999, we have tried many of the ideas that the COS brought forward. I would be interested in how you all think these ideas have worked.

I will post later this week on my experience with trying out some of these concepts.

CEQ Guidance Comment Period

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Since we spend some quality time on this blog talking about NEPA, you might be interested in commenting on this draft CEQ guidance. the climate change and mitigation and monitoring might be particularly relevant to our discussion, since the draft guidance seems to extend the NEPA regs to past implementation of the decision. Here are some questions relevant to federal land management, and the bolded ones seem to have to do with LMPs:

CEQ also requests comment on land and resource management issues, including:
1. How should NEPA documents regarding long-range energy and resource management programs assess GHG emissions and climate change impacts?2. What should be included in specific NEPA guidance for projects applicable to the federal land management agencies?
3. What should be included in specific NEPA guidance for land management planning applicable to the federal land management agencies?4. Should CEQ recommend any particular protocols for assessing land management practices and their effect on carbon release and sequestration?
5. How should uncertainties associated with climate change projections and species and ecosystem responses be addressed in protocols for assessing land management practices?
6. How should NEPA analyses be tailored to address the beneficial effects on GHG emissions of Federal land and resource management actions?
7. Should CEQ provide guidance to agencies on determining whether GHG emissions are “significant” for NEPA purposes. At what level should GHG emissions be considered to have significant cumulative effects. In this context, commenters may wish to consider the Supreme Court decision in Massachusetts v. EPA, 549 U.S. 497, 524 (2007).

Here’s the link.

New CEQ NEPA Guidance In conjunction with NEPA’s 40th Anniversary Celebration, CEQ is publishing three draft NEPA guidance documents for review and comment. Below are links to the draft guidance documents and instructions for submitting comments:

– ESTABLISHING AND APPLYING CATEGORICAL EXCLUSIONS

Comments are due 45 days after publication of the Federal Register notice.

Submit Comments to http://www.whitehouse.gov/ceq/initiatives/nepa

– MITIGATION AND MONITORING

Comments are due 90 days after publication of the Federal Register notice.

Submit Comments to http://www.whitehouse.gov/ceq/initiatives/nepa

– CONSIDERING GREENHOUSE GAS EMISSIONS AND CLIMATE CHANGE

Comments are due 90 days after publication of the Federal Register notice.

Submit Comments to http://www.whitehouse.gov/ceq/initiatives/nepa

Additional information is available at www.whitehouse.gov/administration/eop/ceq/initiatives

Article: Why Don’t We Want EISs with Forest Plans?

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No EISs for Forest Plans?  At the time a revised planning rule was released in 2005, and then 2008, NEPA compliance was among the most criticized piece of those rules.  The preamble to the 2008 rule explained the reasoning that this provision was included (p. 21473):

Throughout 28 years of land management planning, the Agency has learned that tiering to the cumulative effects analysis in a plan EIS did not provide nearly as much useful information at the project or activity level as the Agency had expected. The effects analyses in plan EISs were often too general to meet analytical needs for projects and activities. Meaningful cumulative effects analyses cannot be conducted until project design and location are known or at least reasonably foreseeable. Plan-level analysis would, however, evaluate existing conditions and broad trends at the geographic scale of the planning area. The Department believes these rules provide for the development and consideration of planning alternatives with much more robust public participation than previously afforded.

What’s the problem?

Tulane law professor Oliver Houck wrote an opinion piece last year in the Environmental Law Institute’s Environmental Law Reporter entitled “How’d We Get Divorced?: The Curious Case of NEPA and Planning.” 39 ELR 10645, July 2009

Houck explains that the framers of NEPA back in 1968 were concerned that the environmental crisis stemmed from poor planning, which NEPA was to address, and that the Forest Service (along with the Federal Highway Administration) was front and center as an agency most in need of the NEPA remedy.  However, he explains that over time courts have allowed agencies to not only divorce NEPA from planning, but to relegate it to what he calls the latest, smallest, and most foreordained step in the process.

As early as 1991, Houck was advising CEQ to strengthen the link between broad planning and NEPA:

“NEPA is missing the point.  It is producing lots of little statements on highway segments, timber sales, and other foregone conclusions; it isn’t even present, much less effective, when the major decisions on a national energy policy and a national transportation policy are made.  On the most pivotal development questions of our time, NEPA comes in late in the fourth quarter, in time to help tidy up … As I see it, CEQ’s challenge is not, per your invitation, to make NEPA a “succinct review for a single project.”  It is rather to make NEPA work for legislative proposals and for programs that all but conclusively determine what the subsequent projects will be.”

Houck explains that some agencies like the Park Service and DOE have applied NEPA conscientiously to planning decisions.  He says the BLM has waxed and waned on the issue, applying NEPA to range management plans but trying to avoid NEPA altogether for oil and gas leasing.

Regarding the Forest Service, Houck rejects the agency’s traditional arguments about NEPA and forest planning.  As far as flexibility, he says there is no reason that an EIS cannot be written on a flexible plan.  As far as saving time during the planning process, he says that the Forest Service is actually saving more time in the long run with the availability of “tiering”. 

He concludes that the real reason that agencies don’t want to do EISs are human reasons.  On big decisions, NEPA puts other people’s noses in their business.   Other people ask embarrassing questions, propose unwanted alternatives, go to the press, make things difficult, even change outcomes.  For employees that have been educated to manage the forest in a certain way, they naturally wouldn’t want to let outsiders in to simply challenge what they are doing.   He concludes:

“NEPA is so difficult because its few demands are so counterintuitive, so contrary to normal human behavior: think long term, reveal your defects, expose your risks, consider other ways of doing things than the one you have in mind, let others in on these considerations, which after all are your responsibility, not theirs, and about which you may (but less often than you think) know more than they do, and then actually agree that another way is better.  These are a very hard ask.  For all of these reasons, attaching NEPA to planning, the heart of all decisionmaking, remains as stiff a challenge today as it was in 1969. When this very idea gave rise to a process that is so magnificent in its ambition and so unfulfilled.”

Are these criticisms correct?

Weaving Discussion Threads Together

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Once a week or so, I will try to weave some of the discussion threads from the past week together. There are many interesting ideas in posts that any of us may not have time to respond to in real time, but may be working in the back of our minds somewhere.

Here’s an attempt for the past couple of weeks:

There is the minimalist, timber-only, view of planning – Andy’s KISS approach, which keeps us legal with NFMA. This seems pretty well developed.

Then we have some consensus around something like an “adaptive governance” .
ADAPTIVE GOVERNANCE
On some timeframe, at some appropriate spatial scale (a forest or subsection of forest or Forest/BLM combination ?), a collaborative group (FACA committee?) would involve the public in discussions of “what’s working now and what needs to change”, determine some ideas for change and learning questions, prioritize some activities to learn about and test ideas for change, monitor, and have a formal, transparent, public process (annually?) for checking on goals and adaptive changes. Climate change would be incorporated as included in scenarios this group would consider. It’s more about public deliberation, and learning from the land in real time, than analysis. As Dave said here

“You can only hope to accomplish anything when you are able to define the scope the problem (time, space, issues, etc.) into “decision containers” that people (stakeholders, administrators, etc) can get their minds around. It seems that traditional “forest plan” containers are hopelessly over-filled when land management zoning, land management goals and objectives, program goals and objectives, and related “standards and guidelines” are all in play — and “in play” in a spatial container that isn’t really relevant to many of the objectives at hand.”

So this idea is adaptive governance for a spatial scale appropriate to the problem at hand, which would make decisions within decision space bounded by environmental law.

ENVIRONMENTAL LAWS: In addition, there is a fundamental legal framework of environmental laws that translate into standards (BMPs, species-wide standards such as grizzly) and serve as restrictions on activities, as well as ideas for improvements to help species recovery (sometimes it is about doing things, in addition to “not doing” things) that can both feed into Adaptive Governance (AG).

MONITORING: There should also be some fundamental framework of monitoring for key elements of environmental quality, such air, water and some, but not all. species, that crosses ownership boundaries and also provides some useful information to the regulatory processes. In addition to this basic monitoring, AG groups could add other monitoring related to their questions and learning objectives at hand.

NEPA : NEPA would be done for each project or at the appropriate scale for larger scale issues (power lines, oil and gas leasing, travel management, species protection). Cumulative effects would be done “just in time” as what is “reasonably foreseeable” one year may be substantially different in three to five (for example, industry is interested/is not/is in certain energy deposits, species are reintroduced or move in on their own or become threatened, bark beetles, big fires and their aftermath, roadless rules, etc.) This is the NEPA equivalent of what Dave articulates here .

“Peter Drucker used to write about the “futurity of current decisions”, that is to look at that will emanate from each decision, as it relates to all other decisions. But to act in as close to “real time” as possible, and adjust policy and program and all else to accommodate emergent realities. I call this “just in time decision-making” or “once and forever decision-making.”

(Dave, did you mean “in contrast to” “once and forever decision-making?”)

There does seem to be some dichotomy among us on the utility of predictions at the “forest plan level.” And differences in the view that somehow broader scale- say, landscape scale- NEPA will both be better and remain fresh while the projects are carried out. This may be where Martin is with his contingency/adaptive NEPA, or maybe that’s just for long term projects such as grazing.

Ray Vaughan expresses a need for something strategic at a broader level in this post, but whether it needs to be NEPA or not is another question, in my view. The idea being that we think ahead strategically so that we don’t end up in some kind of corner by focusing on a project at a time. But to me, that’s a discussion with the public about strategy about what “might could” happen under a variety of scenarios, and not an explicit NEPA analysis of alternatives.

I liked Ray Vaughan’s analogy that he discusses in the same post, but the family in the analogy doesn’t have to spend a significant part of this year’s budget on a formalized, legally defensible, construct of different alternatives to reach its goal, given that perhaps it doesn’t know a)how many children will arrive, b) their family income, nor c) costs of education, that far in the future.

So does my weaving resemble yours? Tell us about what yours looks like.