NEPA

Federal Lands Litigation – special edition: the Supreme Court’s rewrite of NEPA

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In my comments on the earlier post on this case, I questioned the role of deference, given the Supreme Court’s turnabout from Chevron deference to Loper Bright scrutiny.  And I said I’d better read the whole opinion.  That answered my question.  And raised a few others, so I thought it worth a separate post.  Maybe it’s not very productive to criticize a Supreme Court decision, but I think it provides a good example of  an “activist” court.  (I’m sure there’s been lots written about this case, but these opinions are my own.)

  • Court decision in Seven County Infrastructure Coalition v. Eagle County, Colorado (Supreme Court)

On May 29, the Supreme Court reversed a lower court decision that would have required the U. S. Surface Transportation Board to consider the effects of increased oil and gas drilling and refining that would be facilitated by a proposed railroad.  Based on the procedural nature of NEPA, the court stated emphatically that, “The bedrock principle of judicial review in NEPA cases can be stated in a word:  Deference.” It distinguished NEPA cases from the new non-deference approach adopted by the Supreme Court in Loper Bright (quotes are not in the same order as in the opinion, which I found to be disorganized):

As a general matter, when an agency interprets a statute, judicial review of the agency’s interpretation is de novo. See Loper Bright Enterprises v. Raimondo, 603 U. S. 369, 391–392 (2024). But when an agency exercises discretion granted by a statute, judicial review is typically conducted under the Administrative Procedure Act’s deferential arbitrary-and-capricious standard.”

While NEPA requires an EIS to be “detailed,” 42 U. S. C. §4332(2)(C), and the meaning of “detailed” is a legal question, see Loper Bright Enterprises v. Raimondo, 603 U. S. 369, 391–392, what details need to be included in any given EIS is a factual determination for the agency… based on the usefulness of any new potential information to the decisionmaking process.

So long as the EIS addresses environmental effects from the project at issue, courts should defer to agencies’ decisions about where to draw the line—including (i) how far to go in considering indirect environmental effects from the project at hand and (ii) whether to analyze environmental effects from other projects separate in time or place from the project at hand…

The Court first determined that oil and gas development projects should not be considered “part of the proposed action.”  It then held, “when the effects of an agency action arise from a separate project—for example, a possible future project or one that is geographically distinct from the project at hand—NEPA does not require the agency to evaluate the effects of that separate project.”

The circuit court had found that these effects were reasonably foreseeable, and the agency did actually acknowledge them (it found the effects of future oil and gas drilling to be “speculative” and attenuated, but it forecasted the number of additional oil wells; and it anticipated refining the oil and gas, but could not identify specific destinations where refineries would be located).  However, the Court dismissed the relevance of foreseeability:

The effects from a separate project may be factually foreseeable, but that does not mean that those effects are relevant to the agency’s decisionmaking process or that it is reasonable to hold the agency responsible for those effects…  Simply stated, a court may not invoke but-for causation or mere foreseeability to order agency analysis of the effects of every project that might somehow or someday follow from the current project.

The court reasoned that the federal action must be the “proximate” (but-for) cause of the effects, and “a separate project breaks the chain of proximate causation.”  Therefore, “agencies are not required to analyze the effects of projects over which they do not exercise regulatory authority,” such as these separate oil drilling and oil refining projects.

The concurrence takes a different approach, finding that, “the Board had no authority to reject petitioners’ application on account of the harms third parties would cause with products transported on the proposed railway.”  The circuit court had held that statutory language stating, “the Board ‘shall’ issue a certificate ‘unless’ inconsistent with public convenience and necessity” (emphasis by the court) allowed it to consider environmental impacts in making its decision, and therefore made it subject to NEPA.  The concurrence disagreed because of other statutory language prohibiting the Board from making its decision based on what might be transported on the railroad.  The plaintiffs had conceded this point, and their argument was therefore foreclosed by prior case law (Public Citizen).

Commentary

After establishing the principle of deference, the Court did not grant such deference to the agencies to determine whether these kinds of indirect effects could be relevant to decisionmaking.  Instead, it drew a bright line for all future cases that contradicted previous policy interpretations of NEPA.  This is a situation where you would expect Congress to decide whether the law needs clarifying, not the Court.

The Court has now limited the effects that must be considered to those from “connected actions” (“closely related and therefore should be discussed in the same impact statement”) even though the CEQ regulations in effect at the time required consideration of any reasonably foreseeable indirect effects.  The court also did away with the accepted NEPA principle that effects of future decisions by other parties were the kinds of “induced” indirect effects an EIS should address, regardless of the agency’s lack of any authority for the future actions (36 CFR §1508.8, the version that was in effect at the time the decision was made):

Indirect effects, which are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable. Indirect effects may include growth-inducing effects and other effects related to induced changes in the pattern of land use, population density or growth rate, and related effects on air and water and other natural systems, including ecosystems.)

The Court may have considered effects of other actions to be “detail” that is up to the Court to exclude.  However, the Court has provided very little basis for revising the decades-old conventional interpretation of NEPA’s statutory language, now excluding effects based on how subsequent decisions are related instead of letting agencies apply the Court’s own stated principles – a “rule of reason” based on “usefulness” of the information.

The main precedents the Court cites are distinguishable.  Metropolitan Edison was about effects that would be attenuated because they are “psychological” reactions to nuclear risk, which is a greater and different kind of attenuation than in this case.  Public Citizen involved lack of authority to make the decision at issue, and therefore NEPA did not require effects of the decision to be addressed at all, which is not the case here.

The concurrence would have isolated this case based on the application of railroad laws and left the traditional NEPA requirement of reasonable foreseeability intact for other kinds of decisions.  If the majority did not like the concurrence’s reasoning, there was another easy way to decide this case.  The concurrence had characterized the circuit court decision as a holding “that the Board should have more carefully considered the deleterious environmental effects of increased oil production made possible by the Railway’s construction” (my emphasis). This Court could have simply disagreed and held that, given the degree of attenuation and affording deference, the agency did consider the nature of these indirect effects to the degree necessary to inform this decision.  This would have left it to future agency factual determinations of the relevance of separate actions, instead of the Supreme Court reinventing NEPA for energy development policy and disturbing decades of precedents.

The Court’s editorial comments about how NEPA “has transformed from a modest procedural requirement into a blunt and haphazard tool employed by project opponents” were unnecessary and inappropriate to decide this case, and simply reveals its policy bias. So too is this extraneous opinion: “In deciding cases involving the American economy, courts should strive, where possible, for clarity and predictability.”  That’s found nowhere in NEPA that I am aware of.

The court can speculate that Congress never thought NEPA would produce fewer and more expensive projects, but if not, what was the point?  There was no discussion of legislative history to support the Court’s reasoning.  Even though NEPA is a procedural statute, it purpose was not just to produce paperwork but to reduce environmental impacts – which would obviously require changes in projects that are sometimes more expensive, or even not pursuing the project.

Here’s a strange statement from the Court: “Even if an EIS falls short in some respects, that deficiency may not necessarily require a court to vacate the agency’s ultimate approval of a project, at least absent reason to believe that the agency might disapprove the project if it added more to the EIS.”  This is clearly dicta, but it suggests that there must be evidence of how important different factors would be to the agency before a decision can be vacated.  That would be nice, but how often do you see this in the administrative record?

 

Federal Register Notice Rescinds 2023 CEQ Interim Guidance on Greenhouse Gas Emissions and Climate Change

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Interesting… Greenwire says

GREENWIRE | The Trump administration said Wednesday it will further truncate environmental reviews by eliminating Biden-era guidance to consider greenhouse gas emissions and climate change when weighing new energy projects.

“when weighing new energy projects”

But the way I read the federal register notice, it’s for all projects.

Here’s the link to the Federal Register notice.

Here’s the link to the CEQ interim guidance from 2023.

It involves using what is surely one of the most bogus numbers ever calculated– the Social Cost of Carbon. To be fair, I don’t think the people at CEQ understood how it was calculated.

This is in the footnote to the 2023 guidance:

 This guidance is not a rule or regulation, and the recommendations it contains may not apply to a particular situation based upon the individual facts and circumstances. This guidance does not change or substitute for any law, regulation, or other legally binding requirement, and is not legally enforceable. The use of non-mandatory language such as “guidance,” “recommend,” “may,” “should,” and “can,” describes CEQ policies and recommendations. The use of mandatory terminology such as “must” and “required” describes controlling requirements under the terms of NEPA and the CEQ regulations, but this document does not affect legally binding requirements.

I was exhausted from just reading the guidance (and didn’t make it all the way through), let alone figuring out how to incorporate it in a NEPA doc.  I wonder whether NEPA folks at any agencies took it seriously?

There would have been a way for CEQ to work with agencies to figure out a relatively simple way to consider GHGs.  Needless to say, the 2023 guidance is not that. Maybe if they’d done that the agencies would have found it useful, and it wouldn’t have been tossed by the next Admin.  I think that that is also good advice for this Admin.

Supreme Court Justices Visit Our World and Find it “Kafkaesque”

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Or maybe they’re only quoting from Vermont Yankee? Still… from Seven County Infrastructure Coality vs. Eagle County (which we’ve been following, including the involvement of the Ute Tribe).

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“In preparing an EIS, an agency also must determine the scope of the environmental effects that it will address. The textual focus of NEPA is the “proposed action”—that is, the project at hand. 42 U. S. C. §4332(2)(C) (2018). The agency therefore will obviously seek to assess significant effects from the project at issue. But how far will the agency go in considering the indirect effects that might occur outside the area of the immediate project—for example, due to emissions or run off from the project carried elsewhere by air or water? And will the agency evaluate the environmental effects from other future or geographically separate projects that may be initiated (or expanded) as a result of or in the wake of the current project? And what if another agency also possesses regulatory authority over a related project?

In analyzing those scope questions, it is critical to disaggregate the agency’s role from the court’s role. So long as the EIS addresses environmental effects from the project at issue, courts should defer to agencies’ decisions about where to draw the line—including (i) how far to go in considering indirect environmental effects from the project at hand and (ii) whether to analyze environmental effects from other projects separate in time or place from the project at hand. On those kinds of questions, as this Court has often said, agencies possess discretion and must have broad latitude to draw a “manageable line.” Public Citizen, 541 U. S., at 767 (quoting Metropolitan Edison Co. v. People Against Nuclear Energy, 460 U. S. 766, 774, n. 7 (1983)).

To tie all of this together: When assessing significant environmental effects and feasible alternatives for purposes of NEPA, an agency will invariably make a series of fact-dependent, context-specific, and policy-laden choices about the depth and breadth of its inquiry—and also about the length, content, and level of detail of the resulting EIS. Courts should afford substantial deference and should not micromanage those agency choices so long as they fall within a broad zone of reasonableness. As the Court has emphasized on several occasions, and we doubly underscore again today, “inherent in NEPA . . . is a ‘rule of reason,’ which ensures that agencies determine whether and to what extent to prepare an EIS based on the usefulness of any new potential information to the decisionmaking process.” Public Citizen, 541 U. S., at 767. A reviewing court may not “substitute its judgment for that of the agency as to the environmental consequences of its actions.” Kleppe, 427 U. S., at 410, n. 21.

Some courts have strayed and not applied NEPA with the level of deference demanded by the statutory text and this Court’s cases. Those decisions have instead engaged in overly intrusive (and unpredictable) review in NEPA cases. Those rulings have slowed down or blocked many projects and, in turn, caused litigation-averse agencies to take ever more time and to prepare ever longer EISs for future projects.

The upshot: NEPA has transformed from a modest procedural requirement into a blunt and haphazard tool employed by project opponents (who may not always be entirely motivated by concern for the environment) to try to stop or at least slow down new infrastructure and construction projects. Some project opponents have invoked NEPA and sought to enlist the courts in blocking or delaying even those projects that otherwise comply with all relevant substantive environmental laws. Indeed, certain project opponents have relied on NEPA to fight even clean-energy projects—from wind farms to hydroelectric dams, from solar farms to geothermal wells. See, e.g., Brief for Chamber of Commerce of the United States of America, et al. as Amici Curiae 19–20.

All of that has led to more agency analysis of separate projects, more consideration of attenuated effects, more exploration of alternatives to proposed agency action, more speculation and consultation and estimation and litigation.

Delay upon delay, so much so that the process sometimes seems to “borde[r] on the Kafkaesque.” Vermont Yankee, 435 U. S., at 557. Fewer projects make it to the finish line. Indeed, fewer projects make it to the starting line. Those that survive often end up costing much more than is anticipated or necessary, both for the agency preparing the EIS and for the builder of the project. And that in turn means fewer and more expensive railroads, airports, wind turbines, transmission lines, dams, housing developments, highways, bridges, subways, stadiums, arenas, data centers, and the like. And that also means fewer jobs, as new projects become difficult to finance and build in a timely fashion.

A 1970 legislative acorn has grown over the years into a judicial oak that has hindered infrastructure development “under the guise” of just a little more process. Id., at 558. A course correction of sorts is appropriate to bring judicial review under NEPA back in line with the statutory text and common sense. Id., at 525. Congress did not design NEPA for judges to hamstring new infrastructure and construction projects. On the contrary, as this Court has stressed, courts should and “must defer to ‘the informed discretion of the responsible federal agencies.’” Marsh, 490  U. S., at 377.

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The ultimate question is not whether an EIS in and of itself is inadequate, but whether the agency’s final decision was reasonable and reasonably explained. Review of an EIS is only one component of that analysis. Even if an EIS falls short in some respects, that deficiency may not necessarily require a court to vacate the agency’s ultimate approval of a project, at least absent reason to believe that the agency might disapprove the project if it added more to the EIS. Cf. 5 U. S. C. §706. For example, in a case like this one, even if the EIS drew the line on the effects of separate upstream or downstream projects too narrowly, that mistake would not necessarily require a court to vacate the agency’s approval of the railroad project. Cf. Vermont Yankee, 435 U. S., at 558.4″

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My italics.

CE Buffet: FS Adopts Other Agency CE’s

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Part of the Fiscal Responsibility Act of 2023, agencies are allowed to adopt other agencies’ CEs.  I’m not sure these adoptions made it into the press, but I found them on the NEPA webpage.

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The Forest Service is pursuing adoption of categorial exclusions from other federal agencies on topics or areas where the Forest Service does not have existing directives. Adopting categorical exclusions increases efficiencies and eliminates the need to do work that has been completed by other federal agencies. Ultimately saving time and allowing for new work to be completed.

The Forest Service has published three adoption notices in the Federal Register resulting in the adoption of 44 new categorical exclusion categories.  These include a July 1, 2024, notice, a Sept. 27, 2024, notice, and a Nov. 8, 2024, notice.  In February 2025, the agency adopted 16 categories (PDF, 169 KB) related to disaster responses. In May 2025, the agency adopted three categories (PDF, 140 KB) related to plans and timber production.

Department of Commerce

  • Siting/construction/operation of microwave/radio communication towers less than 200 feet in height without guy wires on previously disturbed ground. (A-4).
  • Adding fiber optic cable to transmission structures or burying fiber optic cable in existing transmission line rights-of-way; (A-6).

National Oceanic and Atmospheric Administration

  • The disposal, demolition or removal of real property, buildings, and structures, including associated site restoration, and the disposal of personal property and debris. (F7)

Department of Energy

  • Construction, additions, and modifications to transmission facilities, new or existing powerlines, electric power substations and interconnection facilities. (B4.6, B4.11, B4.12, B4.13)
  • Installation, modification, operation, or decommissioning of commercially available Solar photovoltaic systems (B5.16)
  • Electric vehicle charging stations; (B5.23)
  • Routine repair, preventative, and predictive maintenance activities, are required to maintain and preserve buildings, structures, infrastructures, and equipment in a condition suitable for a facility to be used for its designated purpose. Such maintenance may occur as a result of severe weather (such as hurricanes, floods, and tornados), wildfires, and other such events. (B1.3)
  • Repair, replacement, upgrading, rebuilding, or minor relocation of pipelines within existing rights-of-way, provided that the actions are in accordance with applicable requirements (such as Army Corps of Engineers permits under section 404 of the Clean Water Act). (B5.4)
  • Construction and subsequent operation of short (generally less than 20 miles in length) pipeline segments conveying materials between existing source facilities and existing receiving facilities (such as facilities for use, reuse, transportation, storage, and refining), provided that the pipeline segments are within previously disturbed or developed rights-of-way. (B5.5)

National Telecommunications and Information Administration

  • New construction or improvement of land, operations, or support facilities, fiber optics, and communication towers; (C-4 , C-5, C-6, C-7, and C-8)

Bureau of Indian Affairs

  • Utility installations along or across a transportation facility. (L.1) (.pdf – 700KB)
  • Activities involving remediation of hazardous waste sites if done in compliance with applicable federal laws such as the Resource Conservation and Recovery Act (P.L. 94-580), Comprehensive Environmental Response, Compensation, and Liability Act (P.L. 96-516) or Toxic Substances Control Act (P.L. 94-469). (K(2)) (PDF, 676 KB)

Bureau of Land Management

  • Disposal of mineral materials in amounts not exceeding 50,000 cubic yards or disturbing more than 5 acres, except in riparian areas. (F10) (PDF, 212 KB)
  • Granting and amending rights-of-way in existing or compatibly developed rights-of-way for facilities, utility service, or terminal access roads.  (E12, E13, E17) (PDF, 212 KB)
  • Placement and use of temporary portable corrals and water troughs. (D2) (PDF, 212 KB)
  • Emergency Stabilization actions in response to disaster events that threaten public health or safety, property, and/or natural and cultural resources, and are necessary to repair or improve lands unlikely to recover. (CE I1) (PDF, 212 KB)

National Park Service

  • Changes or amendments to an approved plan when changes would cause no or only minimal environmental impact. (12.5 B (1)) (PDF, 212 KB)

U.S. Fish and Wildlife Service

  • The construction of new, or the addition of, small structures or improvements for the restoration of wetland, riparian, instream, or native habitats, which result in no or only minor changes in the use of the affected local area. (B(3))
  • The reintroduction or supplementation (e.g., stocking) of native, formerly native, or established species into suitable habitat within their historic or established range, where no or negligible environmental disturbances are anticipated. (B(6))

United States Geological Survey

  • Collection of data and samples, and test or exploration drilling or trenching (B, G, L) (PDF, 145 KB).
  • Establishment and/or operation of survey marks, field instruments, and research/monitoring devices (H) (PDF, 145 KB).
  • Off-road travel or minor activities to gain or prepare access to sites (K, P) (PDF, 145 KB).

Federal Highway Association

  • Emergency repair, restoration, retrofitting, or replacement actions for transportation facilities damaged by an incident resulting in an emergency declared that is in operation or under construction when the incident occurred. (C9)

Farm Service Agency

  • Construction or ground disturbance actions. (E2)

Natural Resource Conservation Service

  • Planting appropriate herbaceous and woody vegetation on disturbed sites to restore and maintain the sites ecological functions and services. (d(1))
  • Replacing and repairing existing culverts, grade stabilization, and water control structures and other small structures that were damaged by natural disasters. (d(4))
  • Removing storm debris and sediment following a natural disaster where there is a continuing and eminent threat to public health or safety, property, and natural and cultural resources and removal is necessary to restore lands to pre-disaster conditions. (d(7))
  • Stabilizing stream banks and associated structures to reduce erosion through bioengineering techniques following a natural disaster to restore pre-disaster conditions to the extent practicable, e.g., utilization of living and nonliving plant materials in combination with natural and synthetic support materials. (d(8))
  • Restoring an ecosystem, fish and wildlife habitat, biotic community, or population of living resources to a determinable pre-impact condition. (d(11))
  • Repairing or maintenance of existing constructed fish passageways, such as fish ladders or spawning areas impacted by natural disasters or human alteration (d(12))

Tennessee Valley Authority

  • Actions to maintain, restore, or enhance terrestrial ecosystems that generally involve physical disturbance of no more than 125 acres. (CE 30)
  • Forest management activities to manipulate species composition and age class or regenerate forest stands up to 125 acres and requiring no more than 1 mile of temporary or seasonal permanent road construction and Salvage of dead and/or dying trees up to 250 acres and requiring no more than 1 mile of temporary or seasonal permanent road construction. (CE 31)

An appeal or objection is a formal request to a higher agency authority for review of an environmental document or decision. The pre-decisional objection process provides the public an opportunity for administrative review of unresolved public concerns over a proposed decision. The public’s rights and responsibilities to file an objection are defined at 36 CFR 218 for projects and activities documented in an environmental assessment or environmental impact statement, and at 36 CFR 219 for land management plan amendments and revisions

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I’m not sure why the appeal and objections processes are listed, as I didn’t think they applied to CEs?

Should Vegetation Management NEPA be More Like Travel Management? By Eric Biber

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Views like these are not unusual here (like my wildfire plan amendments)  but they are from a law professor at UC Berkeley School of Law, who used to work for Earthjustice so it comes from a person with a different background than many of us. It came from a regular newsletter called “Legal Planet.”

This is an excerpt, and the entire piece is here. It was written in January 2025, in the context of the House version of the Fix our Forests bill.

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What is a possible path forward?  A key issue is that we spend too much time and effort on review, compliance, and litigation over individual projects, rather than focusing on the big picture.  The scale and the urgency of the problem requires us to think about accomplishing management across large areas – but even examining individual projects at the size of 10,000 acres (as proposed in the bill) will still require hundreds and hundreds of projects to be reviewed and completed.  And note agencies still have to accomplish review and compliance for land-use plans that they are legally required to prepare and maintain.  Those plans do not generally turn directly into on the ground projects – they are usually too vague in their constraints and environmental analysis to do so.  Thus, the agencies are stuck doing two levels of review for all projects.  And it only takes a mistake on one of those two levels to set back the whole program.

Most recent proposals (including in this legislation) would reduce our scrutiny for individual projects.  That perhaps solves one-half of the problem, but it also puts far more weight in terms of ensuring environmental review and compliance on the larger-scale planning process.  Planning has the potential to provide important guardrails to ensure good outcomes – the Forest Service is legally prohibited from taking actions that are prohibited by its planning documents.  But in general forest plans have imposed only limited constraints on individual, on-the-ground projects.  And more generally, the plans have not overall been designed to allow individual projects proceed directly without more environmental review or compliance work.

A better approach might be to do what the agencies already often do with managing off-road vehicle use on their lands.  Those travel management decisions can occur in the planning document itself, and can then be immediately implemented when the plan is approved.  This reduces the number of steps – including the number of opportunities for litigation.

Agencies could enact forest plans (or more likely amendments to forest plans) that create a pathway that specifically identifies when and how active management will occur within the relevant National Forest.  Analysis could draw on what is sometimes called “conditions-based management”, in which specific conditions in terms of forest status would trigger a range of possible responses by the agency.  The plan would impose clear limits on the kinds of projects that could be pursued, such as restrictions around endangered species habitat or riparian areas.  The plan might also put caps on the total acreage that could be treated within certain timeframes.  NEPA review could be undertaken as part of the planning process, along with public participation and engagement.  By doing review at a larger geographic scale, there can be economies of scale for analysis and public participation.  And by focusing the discussion on the larger-scale problem, it might help refocus debates around the need to act, rather than simply just focusing on individual projects that will always have tradeoffs and risks.  Projects that are consistent with the plan and its analysis would be exempt from NEPA, since the review had already been done.

Congress could facilitate this kind of approach.  It could explicitly endorse it, or even mandate it – which might make agencies more comfortable taking a new approach.  It could limit the amount of NEPA analysis for fire management at the plan level, perhaps by restricting the number of alternatives.  It could require the NEPA analysis to consider the risks of inaction with no fire management, which may shape the debate to emphasize the need for action.  It could provide limits on litigation – shorter statutes of limitation for NEPA challenges to fire management projects developed through the planning process, and a limitation on any supplemental NEPA claims for a specified timeframe after the planning process is completed.  It could also mandate greater community outreach for the planning process, and assistance in developing community fire protection plans that are included in the agency’s own planning process.

A model here is what California did in 2019 for accelerating treatment in forests and other ecosystems at the state level – an overarching environmental review process for its Vegetation Treatment Program, which facilitated approvals for many projects on the ground.  California has seen substantial increases in the levels of acres treated since the implementation of the VTP process.

An approach focused on planning decisions at the individual forest level, or at the regional level, allows for agencies to consider the varied ecological and social conditions for different forests and communities.  What works for reducing fire risk in dry Sierra conifer forests will not necessarily work in chapparal in Southern California.  Finally, by allowing for more active management while still maintaining public participation and some accountability through judicial review, this approach may reduce the distrust that has swirled around forest management for the past few decades.  Because at the heart of our challenges in addressing fire risk in our forests is a deep distrust.  Without addressing that distrust, any solutions will be contested and less effective.

Los Padres Wildfire Risk Reduction Project

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Thanks to Nick Smith for the link to this Los Padres EA..

It looks like a condition-based management EA for wildfire risk reduction activities. It’s 75 pages with many appendices.

The LPNF proposes two general categories of treatments: (1) Fuelbreaks and Defense Zones (Zones) and (2) Forest Health Treatment Units (Units). The objective in Units is to promote healthy forests that are resilient to natural disturbance, enhance opportunities to suppress wildfire, and increase protection of the urban interface. Zone treatments would occur along ridgelines, existing roads, motorized trails, and property lines and adjacent to Forest Service administrative sites (including developed recreation sites, fire stations, and ranger district offices), communication sites, and other structures. Zone treatments would involve the establishment and maintenance of strategic fuelbreaks along ridgelines to slow the rate of spread of wildfire for the purposes of aiding wildfire management efforts and protecting infrastructure, communities, and natural and cultural resources. Zone treatments would also involve reducing fuels along roads and motorized trails to support ingress/egress and evacuation and reducing fuels along property lines and adjacent to United States Forest Service (USFS) administrative sites to help protect life and structures and limit economic damage associated with wildfires. Treatment methods could include mechanical thinning, hand thinning, chipping and grinding, piling and burning, mastication, mowing and weed-whipping, prescribed fire, targeted grazing, and planting and seeding.

The project is designed with a management approach that supports responsiveness and flexibility prior to treatment implementation. This approach allows for proposed treatments to be aligned post-decision but prior to implementation with ground conditions at the time of implementation. This will maximize the efficacy and efficiency of project planning and implementation by reducing the time and funding currently spent per project, increasing flexibility to choose treatment areas and methods, and taking advantage of time-sensitive opportunities and conditions. It also allows for continued coordination with local agencies, tribes, and others to focus treatments on shared priorities and include cultural approaches consistent with the project.

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One of the questions many people have on these projects is “how is the public involved in the site-specific decisions?”

An Implementation Plan (IP) was developed as part of this proposed action to help ensure resource conditions at the time of implementation are appropriately considered prior to implementation. The IP provides an implementation framework and process that the Forest Service will apply at the stand level prior to entry. The IP includes three forms to be filled out at different stages of implementation planning, and one form to be filled out upon treatment completion:
• Form A: Phase Initiation Form
• Form B: Phase Treatment Form
• Form C: Environmental and Permitting Requirements and NEPA Consistency Determination
• Form D: Treatment Completion Tracking Form
Each form is described in detail in Appendix D – Implementation Plan, including templates for each. Work will be prioritized each year based upon an assessment of the dynamic conditions, addressing areas of highest priority for the upcoming phase with the input of the Forest’s fire, fuels, silviculture and/or other specialists as applicable. A key component of this step would be to identify the areas and types of surveys that need to be performed, including (but not limited to) special-status species and their habitats,
invasive plant species, riparian conservation areas, and cultural resources. Many of these studies are time-sensitive and surveys, when necessary, would be performed in the appropriate season before the work. Applicable RPMs and Best Management Practices (BMPs) would be listed based on the assessment of resources to ensure that any constraints are included in the planning of the work for the year and to ensure that crews performing the work are also aware of the requirements.
For the WRRP, it is anticipated that up to 10,000 acres of treatments would be implemented each year, with a maximum implementation scenario, including re-entry treatments, not to exceed 20,000 acres per year. This is based on a review and average of work over the last 10 years. Including all types of treatments, the LPNF currently averages 3,500 acres per year, with higher totals over 9,000 acres of annual treatment.

Appendix D has a very detailed description of the implementation steps. I selected this section to describe public outreach at the site-specific implementation level.

Each phase of work would be disclosed to cooperating agencies, tribes, and the public (e.g., posted to the Forest website, social media, and/or other method(s)), to the extent practicable. No additional NEPA decisions are needed unless proposed work falls outside the scope of the EA. A detailed plan for the phase of work that includes elements such as the location of treatment areas, the surveys completed and areas of modified treatments based on RPMs and other measures, identification as to whether material would be sold, chipped or masticated, piled and burned, or removed would be provided as well as a more precise schedule of activities. Outreach to the public, particularly in areas where treatment is located near residences or prescribed fire is planned, would be undertaken. Regulations requiring formal public engagement opportunities (e.g., comment or objection periods (36 CFR 218)) during project implementation do not exist.

So there is a chance for the public to make its wishes known at each site, but no regulatory requirements for formal comment periods.  What do you think?

Guidance on Streamlining and Simplifying Permitting- April 22 Letter

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Example of a random SOPA , note that direct contact info for FS employees is available on the SOPA but I blocked for this image. 

The Forest Service Press Office (thanks!) sent me a copy of  this rather lengthy letter.   Here’s a bit of a philosophical question to frame the whole Emergency effort: is wildfire really an emergency?  Some would argue that climate is an emergency; some would argue that wildfire is an emergency but other solutions that vegetation manipulation on federal lands should be chosen.  Some would argue that vegetative manipulation is OK, but it’s not an emergency enough to change current procedures. Others would argue that vegetation manipulation  is OK but not cutting trees to be used commercially.  But if we back up, it seems like some people who believe that global warming is a crisis also believe that (some) mitigation projects should be expedited, but not adaptation projects.  If we frame the wildfire crisis as being about climate change, which some people do.  It’s very confusing, but I thought that it was important to lay out that context before we discuss “what we think is OK to do in an emergency” we need to talk about exactly what we think the emergency is and how we define it.

Here are the general introductory statements:

On April 3, 2025, Secretary of Agriculture Brooke Rollins signed Secretarial Memo 1078-006 titled Increasing Timber Production and Designating an Emergency Situation on National Forest System Lands. The Secretarial Memo implements Executive Order 14225, Immediate Expansion of American Timber Production (March 1, 2025). Acting Associate Chief Chris French provided additional direction to Regional Foresters in a letter dated April 3, 2025, Implementation of Secretarial Memo 1078-006. This letter directed the Deputy Chief of the National Forest System (NFS), within 14 days, to release direction for using Emergency National Environmental Policy Act (NEPA), Endangered Species Act (ESA), and other regulatory authorities to streamline and simplify the permitting process. The following guidance contained in this memo fulfills this requirement.

To address specific challenges related to wildfires and forest health, the Secretarial memo contains an Emergency Action Determination (EAD) under the Infrastructure Investment and Jobs Act (IIJA), Section 40807, Emergency Actions authority. NFS will support use of this new EAD with additional information, increased Emergency Action Portal functionality and several mapping products to identify the lands included. All actions eligible within the lands covered will use this EAD authority as the default approach including ongoing actions. To use this Forest Health and Hazardous Fuels EAD, proposals must be submitted through the Emergency Action Portal for final approval by the unit’s Forest Supervisor.

Tribes and States Can Request Additional Areas.

Secretarial Memo 1078-006 provides federally recognized Tribes, Alaska Native Corporations, and States the ability to request additional areas to be included in the EAD through the Regional Forester to the Chief of the Forest Service for approval. Additional process guidance for addressing these requests will be forthcoming.

NEPA

When applying this authority to ongoing NEPA actions, consider if a change in the NEPA process will provide for efficiency given its current stage. If an opportunity for objections has already been communicated to the public or is within the objections process, the project timing may not be a good fit for use of this authority.

Public notice and an opportunity to comment is required for IIJA authorized projects, however the statute affords greater discretion in how that is accomplished. To expedite emergency actions, use streamlined approaches under the Agency’s NEPA procedures rather than relying on the notice and comment procedures of the displaced objection processes set out in 36 CFR Part 218. For example, publication via the Schedule of Proposed Actions and distribution of a notice through the unit’s mailing list may be done for environmental assessments (EAs) and categorical exclusions (CEs). Public notice for an environmental impact statement should follow the direction in 36 CFR 220.5(f).

To further expedite these projects, seek to minimize process requirements like scoping, extraordinary circumstance review, and decision memo requirements while still fulfilling all applicable legal requirements.

My bold. At this point, if I lived near or was otherwise interested in forest projects, I would make sure that I was on the forest’s mailing list, and also check the SOPA at least once a week. You can just type in the forest name and SOPA into a search engine, and find the projects,  the dates, the link to the project website and whom to contact. Unfortunately, I didn’t have any luck clicking through today and sent a note to the WO about the broken links.

1. Scoping for emergency actions shall be commensurate with the scope and scale of the project. Such scoping efforts should be focused and brief. Formal comment periods will not typically be required for EAs and CEs. Alternative forms of public involvement are sufficient to fulfill agency responsibilities under NEPA and the IIJA.

I’ve seen many EAs with apparent comment periods and even response to comments, so this is interesting.

2. For extraordinary circumstances review, analyze the degree of effect to the proposed action not just the mere presence of a resource condition. Focus on the most important
resource conditions, those listed in 36 CFR 220.6(b) and do not casually expand the scope of conditions being assessed.

But if you expand them thoughtfully, I guess that would be OK.

3. For decision documents, use Agency templates and only include the content required at 36 CFR 220.6(e) and 36 CFR 220.7(c). Additional emergency compliance tools under NEPA can be found on the Ecosystem Management Coordination SharePoint site. Where applicable, prioritize use of CEs to meet NEPA compliance. To expand use of CEs, the
Forest Service recently adopted over 40 additional categories from other agencies under Section 109 of NEPA. Please examine these additional categories, as well as current USDA, Agency, and statutory CEs when considering compliance actions in support of the Secretarial Memo.

Note that this adoption was last July, prior to the current Administration.

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There are also emergency suggestions for for NHPA compliance and Tribal Consultation.

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Since Jon knows about ESA, I thought I’d throw this section in this post.

For compliance supporting the ESA:
1. Employ existing, and develop new, innovative, options for expediting ESA consultation and achieving conservation objectives. Refer to the June 26, 2024, Interagency Memo on
“ESA Section 7 Streamlining Guidance for Implementing the Wildfire Crisis Strategy” for a summary of existing options and opportunities for efficient and effective ESA consultation (https://usdagcc.sharepoint.com/sites/fs-nfs-niesc).

Seems like that Interagency Memo (from the last Admin)  is probably available outside the sharepoint site for those curious.

2. Bring innovative ideas to the WO Natural Resources staff to develop additional options and opportunities. New opportunities are being developed as part of the National Active
Forest Management Strategy.
3. Where expedited consultation is necessary, provide as much essential information as feasible to the Services in advance of the action, in order to: determine appropriate design
features to incorporate; assess whether leadership elevation may be warranted; and minimize the time/capacity investment required after any emergency actions are completed.
4. Use the below suggested consultation initiation language where expedited consultation is needed: “XX National Forest is requesting expedited consultation to perform YY work
pursuant to Secretarial Memo 1078-006. The project is expected to commence on ZZ date. If expedited consultation cannot be completed prior to that date, the Forest requests the
consultation be completed under the emergency consultation regs and procedures. (50 CFR § 402.05).”
5. The WO Natural Resources staff are working with ESA consultation agencies to develop additional guidance and methods involving emergency consultation.

To the simple-minded like me, it seems like ESA consultation would involve something like “in these areas, for these kinds of projects, you need to do X, Y and Z to protect A, B and C species.” We know this because dozens of fuel treatment projects likely have been done in the same area.  I get that there are landscape-level considerations. It looks like there already emergency consultation regs and procedures in place, but then that goes back to where we started “is it an emergency, and if so, what kind?”

Does the Emergency Situation Determination “Open Up 112.5 Million Acres” to Logging? No. And New Map Coming

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Original ESD map

A Big Shout-out to the Forest Service Press Office for a quick response on this.

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I know I can be critical of the media, but in this case I also think the Department could have done a better job on the rollout.  All it would have taken is one clarifying chunk of words in an accompanying press release (or maybe it was there and I didn’t see it?)

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What does it mean in English to “open up” areas for logging?  Using plain English,  “to make available or possible” implying that those areas had not been previously open.  This was possible as we can see from these media outlets:

WaPo

Trump administration orders half of national forests open for logging

LA Times

Last week, U.S. Secretary of Agriculture Brooke Rollins issued an emergency declaration that ordered the U.S. Forest Service to open up some 112.5 million acres of national forestland to logging.

USA Today

A new policy opens 58% of U.S. national forests to logging by rolling back environmental protections.

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And we found out from the folks at the Associated Press (who wrote a fair story) that the acreage came from the Secretary’s announcement of  acres covered by the ESD.

However, those of us experienced in this area might wonder “how does this related to other designations and forest plans?”  Let’s look at the language the Secretary referred to in her memo from IIJA which sets out the parameters of ESD’s.

For emergency actions 40807 (b) (3) IIJA says .
            (3) Relation to land and resource management plans.--Any 
        authorized emergency action carried out under paragraph (2) on 
        National Forest System land shall be conducted consistent with 
        the applicable land and resource management plan.

Now, we have acres where fuel treatments are allowed in the forest plan.  The memo doesn’t actually change that.  I asked the Press Office about other designations (Wilderness, Roadless etc.) and here is the answer from them:

The current map reflects boundaries within which there may be wilderness, roadless, or other special designation areas, as well as lakes, roads, structures, etc. Mechanical treatments are not allowed in designated wilderness areas, so logging is excluded. Restrictions or conditions associated with project level decisions, forest plans, regulations or Congressional Designations remain.

So the order, in and of itself does not, in fact,  “open up” any new areas to “logging.”  If a new project is proposed in an area that is OK based on all the other forest plan and other designations and restrictions, then it uses the ESD  assists: no objection process-one action alternative-special injunction relief (the latter Rich J. was kind enough to explain.) Abbreviated NOP-OAA-SIR

Now some might argue that with this push for increasing timber harvest, forests might be inclined to do more projects that would require a site-specific plan amendment, and that’s possible, but forests could have done those anyway without the ESD.  So in that sense, the ESD itself did not open anything.  If a forest wants to go somewhere not in the forest plan, though, via a site-specific plan amendment, it would make the project analysis quicker via NOP-OAA-SIR.

So I would say that “opening for logging” based on the ESD, is not correct.

The Press Office told me that there will be a more detailed map shortly, so we’ll post that.

Expanding Emergency Situation Determination Area: USDA Secretarial Memo

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I mentioned ESDs to Jon yesterday in a comment. I wasn’t being psychic, not do I have a direct line to USDA. But the fact is that there are only so many possibilities in NEPA world and many of them have been used before. Here’s the link,  thanks to Anonymous.  Also, the very successful SERAL projects on the Stanislaus used ESD (see #8 in SERAL post).

It sounds like using an ESD means  the FS only needs a proposed action and the no-action alternative, and there is no objection process.  But consultation for ESA and NHPA compliance still occurs. Additional context is this letter from two years ago.

Secretary Vilsack also determined that an emergency situation exists on certain lands (post fire recovery areas) that experienced high intensity wildfire in fiscal year 2022, including NFS lands in: (1) New Mexico (Catron, Colfax, Grant, Lincoln, Los Alamos, Mora, San Miguel, Sandoval, Sierra, Socorro, Taos, and Valencia counties), (2) Arizona (Coconino and Yavapai counties), and (3) California (Alpine, Amador, Butte, El Dorado, Humboldt, Kern, Lassen, Madera, Mariposa, Plumas, Shasta, Santa Barbara, Siskiyou, Tehama, Trinity, and Tulare counties).
Within these designated areas, I have the authority to approve emergency actions for which NEPA compliance actions are not subject to administrative review under 36 CFR 218, and an environmental assessment or environmental impact statement need only analyze the no action alternative and the proposed action. In addition, a proposed emergency action is subject to special injunctive relief standards if challenged in court.

Maybe our lawyer friends can tell us more about the “special injunctive relief standards.”  So it sounds like the big change from 2023 is expanding the use of ESD from the 250 identified high-risk watersheds to a (much) broader area.  Of course, if your area was not in the areas Secretary Vilsack selected (we don’t know why those were selected), you might think it’s a great idea to expand.

Or we could blame the Congress for putting this in the BIL in the first place, as stated in the 2023 Letter:

Section 40807 of the BIL authorizes the Secretary to determine that an emergency exists where implementation of emergency actions is necessary to achieve relief from hazards threatening human health and safety or to mitigate threats to natural resources on National Forest System land and adjacent lands.

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While  hunting around for an example of an EA or EIS,  I did find this alternative arrangements letter from 2015, so the emergency idea has been around in California for awhile. What is it about California and NEPA? Lake Tahoe has their own CE.., 2015 alternative arrangements, 2023 ESD..?

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Anyway, here’s the current announcement and letter.

(Washington, D.C., April 4, 2025) – U.S. Secretary of Agriculture Brooke Rollins issued a Secretarial Memo (PDF, 2.9 MB) to establish an “Emergency Situation Determination” on 112,646,000 acres of National Forestry System (NFS) land (PDF, 19.8 MB). This Memo comes on the heels of President Donald J. Trump’s Executive Order

to expand American timber production by 25%, and it will empower the U.S. Forest Service to expedite work on the ground and carry out authorized emergency actions to reduce wildfire risk and save American lives and communities.

“Healthy forests require work, and right now, we’re facing a national forest emergency. We have an abundance of timber at high risk of wildfires in our National Forests,” said Secretary Rollins. “I am proud to follow the bold leadership of President Trump by empowering forest managers to reduce constraints and minimize the risks of fire, insects, and disease so that we can strengthen American timber industry and further enrich our forests with the resources they need to thrive.”

The Memo issued by Secretary Rollins is part of a larger effort to ensure American resources are properly managed for generations to come. This work will support rural economies, reduce wildfire risk, and build capacity through workforce alignment and expanded partnerships.

This Memo will also spur immediate action from the U.S. Forest Service directing field leadership to increase timber outputs, simplify permitting, remove National Environmental Policy Act (NEPA) processes, reduce implementation and contracting burdens, and to work directly with states, local government, and forest product producers to ensure that the Forest Service delivers a reliable and consistent supply of timber.

This action builds on Secretary Rollins’ announcement last month to unleash American energy by directing the USDA Forest Service to take action to remove burdensome Biden-era regulations that have stifled energy and mineral development on Forest Service land. As part of these decisive actions, the agency also canceled two mineral leasing withdrawals on Forest Service land that will help boost production of critical minerals.

Here’s some of the text:

a. EMERGENCY SITUATION DETERMINATION
To address this crisis, I am making an Emergency Situation Determination (ESD) under section 40807 of the Infrastructure Investment and Jobs Act (IIJA). This ESD encompasses 66,940,000 acres of NFS lands rated as very high or high wildfire risk that are hereby determined to be an emergency situation as defined by IIJA. In addition, I have determined that the 78,800,000 acres of NFS lands designated under Section 602 of the Healthy Forest Restoration Act (HFRA), that are experiencing declining forest health; at risk of experiencing substantially increased tree mortality over the next 15 years [ from time of designation] from insect and disease infestation; or containing hazard trees posing an imminent risk to public health, infrastructure, and safety, are an emergency situation as defined in the IIJA. There are approximately 33,846,000 acres of NFS lands which overlap between wildfire and insect and disease risk. In total, this ESD designates 112,646,000 acres of NFS lands as an IIJA emergency situation, which is 59 percent of all NFS lands. See Map #I Forest Health and Fuels Emergency Situation Determination.
I am also providing federally recognized Tribes, Alaska Native Corporations, and States the ability to request additional areas to be included in this ESD under IIJA section 40807
through the Regional Forester to the Chief of the Forest Service for approval.

Actions taken pursuant to this ESD will support improving the durability, resilience, and resistance to fire, insects, and disease within forests and grasslands across the National Forest System.
Consistent with IIJA section 40807 and this determination, the Forest Service may carry out authorized emergency actions after an ESD is declared to achieve relief from threats to public health and safety, critical infrastructure, and/or mitigation of threats to natural resources on NFS lands. These actions will improve the durability, resilience, and resistance to fire, insects, and disease within national forests and grasslands across the National Forest System. To be eligible to use this authority, at least 50 percent of the treatment areas supporting this authorized emergency action must be within the designated areas.
Proposals using the special emergency action procedures at IIJA section 40807 shall:
• Reduce wildland fire risk to communities, critical infrastructure, or key ecological values; or
• Reduce/mitigate post fire risks needed to protect communities, critical infrastructure, or key ecological values; or
• Reduce hazardous fuels by removing or modifying vegetation to lower the risk of wildfires; or
• Reduce the density of fire-dependent forests; or
• Support the durability and resiliency of forests and grasslands; or
• Reduce hazardous fuels to help make wildfire response, as well as ingress or egress, safer and more effective; and
• Be authorized by the Forest or Grassland Supervisor.

Authorized emergency actions to respond to emergency situations include the:
• Salvage of dead or dying trees;
• Harvest of trees damaged by wind or ice [Note: or other natural disasters];
• Commercial and noncommercial sanitation harvest of trees to control insects or disease, including trees already infested with insects or disease;
• Reforestation or replanting of fire impacted areas through planting, control of competing vegetation, or other activities that enhance natural regeneration and restore forest species [Note: the restoration of forest species includes prevention, suppression, and eradication ofinsect, disease and invasive species outbreaks];
• Removal of hazardous trees in close proximity to roads and trails;
• Removal of hazardous fuels;
• Restoration of water sources or infrastructure [Note: the restoration of water sources includes watersheds];
• Reconstruction of existing utility lines; and
• Replacement of underground cables.

Any required environmental assessment or environmental impact statement for an authorized emergency action requires analysis of only the proposed action and the no action alternative and is not subject to the project-level pre-decisional administrative review (“objections”) or any processes set forth in 36 CFR Part 218.

b. OTHER EMERGENCY AUTHORITIES
The IIJA section 40807 authority is one of several tools that can be used to achieve expedited compliance around emergencies. Within designated areas, the Forest Service shall deploy, or continue to deploy, other emergency authorities including:
• Emergency and direct hire authorities (including hiring Tribal crews to implement and monitor);
• Expedited contracting authorities or mechanisms, including virtual incident procurement (VIPR), sole source contracting, and USDA contracting authorities and include Tribes within that effort;
• Expedited grant and agreement authorities or mechanisms, including with Tribes;
• Exemptions, waivers, expanded inclusions, and expedited mechanisms for emergency programs on joint efforts with USDA agencies and Tribes;
• Emergency consultation to comply with the Endangered Species Act;
• Emergency and programmatic consultation to comply with the National Historic Preservation Act (NHPA);
• Emergency procedures to comply with the Clean Water Act (CWA); and
• Expedited permitting, certification, and qualification processes as defined in Forest Service directives or as directed by the Chief.

Additional administrative authorities within the Forest Service Chief’s discretion may also be deployed to deliver emergency and expedited response. Nothing herein changes the requirement for Tribal consultation but may require expedited consultation time frames under certain conditions. In scenarios where Tribal consultation time frames need to be expedited, the Forest Service shall notify Natural Resources and Environment.
The agency shall use IIJA Section 40807 where authorized emergency actions can facilitate current and future post-disaster recovery actions within the scope of this Emergency Situation Determination.
c. TIMBER PRODUCTION AND SOUND FOREST MANAGEMENT
In order to increase domestic jobs and prosperity, increase economic independence, and protect our national security, the Forest Service will:
• Issue new or updated guidance to increase timber production, decrease the time to offer timber supply, and increase certainty in future timber supply. This guidance should include use of Good Neighbor Authority, stewardship contracting, and agreements or contracts under the Tribal Forest Protection Act;
• Streamline, to the extent allowable by law, all processes related to timber production, including project planning, decision-making, implementation (including preparation, appraisals and measurements), and required certifications;
• Develop a strategy to improve the efficiency of delivering the timber program and increase quantity and consistency in volume offered; and
• Identify legislative proposals that would improve timber production and sound forest management.
d. SHARED STEWARDSHIP AGREEMENTS
The Forest Service will work with State and local partners and federally recognized Tribes to collaboratively align with their respective priorities. Many States and Tribes have Forest Action Plans that prioritize critical treatment needs, and this memo directs the Forest Service to work with States and Tribes to also prioritize these areas and projects. Given the urgency and cross-jurisdictional nature of the current crisis, the Forest Service shall work quickly to proactively update and expand Shared Stewardship
Agreements to bring the full power of our partners to help address this emergency.
Immediate implementation of actions under this ESD should proceed concurrently with the updating and creation of these agreements.
e. REPORTING
Each calendar year, the Forest Service shall report to Natural Resources and Environment on the use of emergency authorities that will include those actions taken pursuant to this
Forest Health and Fuels Reduction Emergency Situation Determination detailing:
• Status of any ongoing environmental analysis or compliance actions;
• Listing of completed (signed decision) or future compliance actions;
• Status of any ongoing consultation, including the National Historic Preservation Act and Endangered Species Act;
• Status of any ongoing coordination with local or state emergency management offices or other federal agencies;
• Status of coordination and consultation with federally recognized Tribal governments and/or Alaska Native Corporations; and
• Listing of any completed (implemented on the ground) or future mitigating emergency actions, to include number of acres treated or anticipated to be treated.
5. IMPLEMENTATION
The Under Secretary for Natural Resources and Environment is responsible for implementing all aspects of this memo, in coordination with the Office of General Counsel. In the absence of an Under Secretary, the Chief of the U.S. Forest Service will carry out the responsibilities assigned in this Memo.

6. EFFECTS OF THIS MEMO
This memo is intended to improve the internal management of the Department and to assure implementation of the above-referenced Executive Order. This memo and any resulting report or recommendations are not intended to, and do not create, any right or benefit, substantive or procedural, enforceable at law or equity by a party against the United States, its departments, agencies, instrumentalities or entities, its officers or employees, or any other person. To the extent there is any inconsistency between the provisions of this memo and any federal laws or regulations, the laws or regulations will control.

CE’s Galore: Would Getting Category 10 Back Help?

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Warning: this post is for NEPA Nerds

On X, Nicholas Bagley posted this thread..  remember what we used to call the HFI CE’s or Category 10?  I was working in WO NEPA at the time, and we did the Limited Timber Harvest and the HFI CE’s as I recall, the latter jointly with BLM.  Shout out to Dave Sire, happily retired! Much excellent work went into both of them, but the HFI CE was litigated by the Sierra Club and was removed, at least for the Forest Service, not sure about BLM.  Bagley raised a legal question about how easy it would be to get Category 10 back.  The question is “would Category 10 add any value to the existing Categories?”,  since Congress has stepped in several times since then.  Tom Hochman asked specifically about the prescribed fire acreage limit (4500 acres in Category 10).

Nothing is simple.  So I laid out below what I could find and I’m interested in what you all think.

There are several problems in comparing CEs.  First, some apply to only some landscapes or condition classes or WUI.  Second, they have different requirements for public engagement/collaboration.  Third, they have a a variety of other requirements.  But all have the same extraordinary circumstances and required scoping.  I would hope the FS has a table somewhere of the different requirements, and someone will provide that.

But basically the question asked was, “would it be valuable to add back a CE that had up to 4500 acres for prescribed fire?”

  1. Can Category 6 Be Used? No Acreage Limit.

The first thing that occurs to me is “what is your position on Category 6?” Remember this case in which the 9th Circuit upheld the use of Category 6 on the Fremont-Winema:

The Ninth Circuit upheld the U.S. Forest Service’s use of the timber stand and/or wildlife habitat categorical exclusion (CE-6) under the National Environmental Policy Act (NEPA), rejecting the claims made by Oregon Wild and WildEarth Guardians that CE-6 has an implied acreage limitation.

The plaintiffs challenged the projects, which cover a total area ranging from 3,000 to 16,000 acres of commercial thinning, on the grounds that the Forest Service had misused CE-6. They argued that the categorical exclusion should not apply to “large-scale” projects like these.

Some of us are still a little hinky about this decision, so let’s let the legal experts weigh in.

2. Other Categories of Note

Hazardous Fuels:
Statutory:
4. Lake Tahoe Basin  5000 acres, with 1500 acres max of mechanical thinning. (Handbook #4, citation Pub. L. 111-8, Sec. 423)
5. Insect and Disease Infestation 3000 acres (amended to include hazardous fuels 2018)  (doesn’t separate PB from MT)
8. Lake Tahoe Basin 2016 10,000 acres not more than 3000 acres of mechanical thinning.
9. Wildfire Resilience 3000 acres (doesn’t separate PB from MT).
11. (Linear) Fuel Breaks – up to 1000 feet across, no apparent cap on linear distance?
There is also an administrative category 25 (Restoration) with a cap of  2800 acres.  It included a variety of things including thinning and prescribed fire, but not specifically for fuel management objectives.
Enjoined administrative Category 10 was 4500 acres for prescribed fire and 1000 acres for mechanical thinning and crushing or mowing or whatever.
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Now if we go to the Fix our Forests proposal,  only within designated Firesheds, it sounds like they are saying the FS could use Categories 4, 5, 8, and 9.  That’s in (106 B 1) including Lake Tahoe’s 8, gives the largest numbers of acres.
Everyone is invited to check my work and provide more context.