NEPA

More on the Holland Lake Project, CEs and the Flathead Plan

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Martin Nie helpfully pointed me to the text of his letter on the Holland Lake project. What’s interesting about this, to me, in light of the decision, is how this highlights the role of environmental analysis compared to public engagement.  Some folks seem to like to lump them together (not Martin).. “with a CE the public won’t be involved” but this particular CE had public meetings and obviously a comment period (evidence-  this letter, among others).  And whether the FS uses the CE when this decision comes back around, I would expect them to do the same kind of public involvement.

Here’s  a link to Martin’s letter , and here is a link to the scoping document.  Lots of interesting stuff in there, including upgrading water and sewer, and  clarifies the Forest Plan direction for the area.

Increased use is also occurring at the adjacent USFS East Holland Lake Connector Trailhead. This increase in use is creating a situation in which users park along the Holland Lake Road because there is no longer room in the existing trailhead parking area. Additionally, the existing vault toilet is no longer adequate to handle the amount of use it experiences. This situation may be causing additional resource concerns as users find alternative options*. Improvements at the Holland Lake Lodge and the East Holland Lake Connector Trailhead would offer the opportunity to satisfy some of the increased demand for outdoor recreation on public lands in the Swan and Flathead Valleys (Figure 2 & Figure 3). Holland Lake is identified by the Flathead National Forest Land Management Plan as a Management Area 7 – Focused Recreation (USDA 2018). The improvements proposed at Holland Lake Lodge align with recreation uses permitted in Management Area 7. Focused Recreation Areas typically include public recreation areas at or near a lake, large campground, developed ski area or year-round resort. Recreation in these areas is already occurring and is often enhanced by further development to increase public access and benefit local economies.

*Hmm. I wonder about the exact nature of these “alternative options,”; perhaps not best left to the imagination.

Here’s what Martin said about the Plan:

So much time, energy and resources collectively spent on revising this Plan, one of the first to be revised under the 2012 Forest Planning Regulations-Regulations that require the use of best available scientific information, public participation, and an “all lands” approach to National Forest management. So much work and money spent on the Montana Legacy Project, so carefully done so to protect the ecological and rural community values so cherished in the region. So much effort to protect the ecological integrity and feel of a special place. And yet none of that work seems to have shaped or informed a proposal that would undermine it all.

The agency’s purpose and need for action statement references the revised Forest Plan’s desired conditions for Management Area 7, Focused Recreation. This vague and discretionary plan component calls for providing “sustainable recreational opportunities and settings that respond to increasing recreation demand.” But this provision does not call for generating greater demand for even more intensive recreation nor can it be understood in isolation from other relevant parts of the Revised Plan, including the plan components for the Swan Valley Geographic Area, and requirements under 36 C.F.R. §219.9 “to contribute to the recovery of federally listed threatened and endangered species, conserve proposed and candidate species, and to maintain a viable population of each species of conservation concern.”

The special use permit and proposed expansion of Holland Lake Lodge is clearly and directly related to forthcoming activities and an environmental footprint that will extend far beyond the 15 acre permitted area. The type of intensive year-round recreation associated with the POWDR corporation makes this clear and is entirely inappropriate in an area so ecologically significant. The NEPA case law forbids the segmentation of related actions and requires that the cumulative effects of related actions must be considered, usually in an EIS. The Council on Environmental Quality (CEQ) also states that “federal agencies must be sure the proposed [CE] captures the entire proposed action” and “should not be established or used for a segment or interdependent part of a larger proposed action.”

It seems to me that this argument could be made for any project that has a appropriate CE. Perhaps all fuel treatment projects on the Forest could be characterized as “related actions” despite the existence of legislated and regulatory CEs.  And it can be argued that anything is in some sense a “related action.”

I also question this claim :”The type of intensive year-round recreation associated with the POWDR corporation makes this clear and is entirely inappropriate in an area so ecologically significant.”  With my experience with ski area expansion, every area is “ecologically significant” to someone; and these ski areas have opened to year-round recreation.  To my mind, you’d have to tie a specific time of use to a specific environmental impact.

Since Martin is the Director of the Bolle Center (although he writes this letter in a personal capacity), I guess it was natural to bring up the Bolle Report from 1970 (52 years ago).  For non-Montanans who have dealt with other permitted recreation expansions (in my case, ski areas) it seems a bit of a stretch, but OK.

Here we are, decades after the Bitterroot controversy, only to find local citizens and the public once again treated as antagonists, with a proposal to exclude them from a fully informed, scientifically credible, and participatory NEPA process.

Of course, development at Holland Lake is no  Bitterroot controversy in terms of scope, scale and implications. But both cases signify something far bigger within the agency and Montanans clearly recognize something is once again amiss. Rarely have I been approached by so many citizens about a local project or proposal, all with deep concerns and lots of questions about the proposed expansion and the Forest Service’s misuse of NEPA. (my italics)

If you don’t agree with certain members of the public, are you “treating them as antagonists”? Despite public meetings, comment periods, etc.? And if the decision, as in this case, goes with those members of the public, are you still “treating them as antagonists”?  Is it the process, the feelings of some (which ones?) or the decision itself the location for these antagonistic expressions?

Now is where the letter gets interesting:

To categorically exclude some projects and activities from full environmental review is both reasonable and necessary. Doing so can help the agency focus on proposed actions most likely to actually have significant environmental effects. But the USFS is now using its growing list of “CE” authorities to an alarming degree. Roughly 84 percent of the agency’s NEPA work is now done using CE determinations. The Forest Service seems intent on excluding even more projects and actions from NEPA review in the future, using new exemptions provided in the Bipartisan Infrastructure Law (BIL), among several other new authorities granted by Congress, and more controversially by the agency itself.

But to abuse this tool is to risk the agency’s credibility and social license. The intention to categorically exclude such a significant action sends a message that CEs are being used not as a way to do NEPA more efficiently, or to make better decisions-which is the whole point of NEPA-but rather a way to avoid the use of best available science and informed public participation in public lands management. The backlash is already evident and I’m afraid it will taint future good faith efforts aimed at actually improving the USFS’s implementation of NEPA.

In my old job in NEPA in DC, we’d see real CE abuse.. and this is not it. IMHO.

The Forest Service “seems intent” on following statutes legislated by Congress.. I certainly hope so! And why would the CEs in the BIL be less controversial than those developed by the agency (or Agency)?

I guess I just don’t see the logic path from “many people in the area and elsewhere don’t want more people at this 15 acre (based on Martin’s letter) permitted developed recreation site .” and (implied) the Forest Service “is intent on” “even more projects and actions from NEPA review”.

By the way, I took a brief scan of the Flathead Current and Recent Projects, specifically Under Analysis and Analysis Completed. It looks to me as if all the vegetation management and fuels projects are EISs or EAs. Perhaps the problem with CEs is the FS uses too many of them for common decisions like Ultra-Marathons? Or bike races (if Andy is reading this far).

We’ve also had a good discussion of CEs and their use in the previous post’s comments.

****************

And for the even more NEPA-nerdy..

As to the percentages of CE’s, it turns out that Martin used what is in this 2020 NEPA regulation :

The Agency devotes considerable financial and personnel resources to NEPA analyses and documentation, completing on average 1,588 categorical exclusion (CE) determinations, 266 environmental assessments (EAs), and 39 environmental impact statements (EISs) annually (based on Fiscal Years 2014-2019).

The  Fleischmann et al. (2020) estimate of CE% was  for 2005-2018 and came up with 82.3 % CEs, and the FS estimate 84%, is from 2014-2019.  We might expect that if the FS’s intention were to use more CEs, and it was busy generating administrative ones and the Congress was busy legislating CEs, since 2015 we would see more of an increase over that time period. The averages actually seem pretty invariant over those time periods.

 

 

Extraordinary Extraordinary Circumstances? The Flathead’s Holland Lake Project and Using a CE

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Early TSW readers may remember that this blog was started in 2009 with me and Martin Nie,  a professor of the University of Montana, discussing forest planning, when the 2012 Planning Rule was beginning to be designed.  At the time, we called the blog “New Century of Forest Planning.” One of the reasons Martin was so fun to argue with is that we disagreed on many things about planning. My idea was that in the relatively arcane world of forest planning, students would learn from heating different perspectives.  I haven’t heard from Martin lately, but apparently we still disagree.

Yesterday it turned out that the Forest Service rejected the proposal, according to KPAX

They cite inaccuracies between the master development plan and the proposed plan.

Tammy MacKenzie, the public information officer for the Flathead National Forest, told MTN the plan to expand the lodge at the base of the Swan Mountain Range was bigger than what was originally asked for.

I thought this earlier article from the Daily Montanan “Flathead National Forest: Decision on Holland Lake likely coming this week or next”  was interesting in terms of  Martin’s more general comments on Forest Service public involvement, NEPA and the use of CEs, as reported.

In comments and at public meetings, many people have called on the Forest Service to do a thorough environmental review and not grant a categorical exclusion. Martin Nie, director of the Bolle Center for People and Forests at the University of Montana, is among those.

In his Oct. 5 letter, Nie talked about working for a center named after the late Arnold Bolle, named in the Gallery of Outstanding Montanans in the Capitol as the “Dean of Western Forests,” he said.

He said Bolle led an investigation of forest management in 1969 that resulted in a report that found the Forest Service’s culture didn’t involve the public “in any way but as antagonists,” and he said decades later, the same is true.

Wow, that’s quite a claim! All that work with collaborative groups, all that learning, all those requirements, it’s hard to believe he really said that. Perhaps in his experience. Not in mine. More likely there is literature around that, there certainly is around improving processes (e.g.this 2006 Leach paper).

“Rarely have I been approached by so many citizens about a local project or proposal, all with deep concerns and lots of questions about the proposed expansion and the Forest Service’s misuse of NEPA,” Nie wrote of the National Environmental Policy Act, which sets the standards for exceptions and reviews.

He said granting exceptions to some projects “is both reasonable and necessary,” but the Forest Service is using the NEPA exclusion “to an alarming degree,” some 84 percent of the time.

I’m hoping that the Forest Service uses both statutory and regulatory CEs as appropriate. For me, that’s kind of the point of being in a federal agency, do what Congress says, plus your own rulemaking. Suppose there is a new legislated CE for certain outfitter guide activities. Would that be even more “alarming” because the percentage of projects using CEs would increase? Also, if the number came from the 2020 Fleischmann et al. paper, it should probably be 82% (rounded from 82.3 in the abstract)*.

But federal regulations prohibit the exception where there are “extraordinary circumstances,” such as where threatened or endangered species might be affected, and he said the Flathead National Forest’s own plan identifies unique characteristics of the area.

“The ecological setting of Holland Lake provides a textbook example of extraordinary circumstances that warrant closer environmental analysis and full public participation,” Nie wrote.

For those of you who aren’t familiar with finding items of interest in the FS NEPA regulations here is a link. Extraordinary circumstances are at 31.2.

31.2 – Extraordinary Circumstances

Resource conditions that should be considered in determining whether extraordinary circumstances related to a proposed action warrant further analysis and documentation in an EA or an EIS are:
(1) Federally listed threatened or endangered species or designated critical habitat, species proposed for Federal listing or proposed critical habitat, or Forest Service sensitive species;
(2) Flood plains, wetlands, or municipal watersheds;
(3) Congressionally designated areas, such as wilderness, wilderness study areas, or national recreation areas;
(4) Inventoried roadless areas or potential wilderness areas;
(5) Research natural areas;
(6) American Indians and Alaska Native religious or cultural sites, and
(7) Archaeological sites, or historic properties or areas.
The mere presence of one or more of these resource conditions does not preclude use of a categorical exclusion (CE). It is the existence of a cause-effect relationship between a proposed action and the potential effect on these resource conditions and if such a relationship exists, the degree of the potential effect of a proposed action on these resource conditions that determine whether extraordinary circumstances exist. (36 CFR 220.6(b))

I actually don’t see “ecological setting” included.  I’m guessing the environmental docs on this project discuss this..

The Manchin One-Pager on Regulatory Reform, Helpful or Not?

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The stars and the faint arm of the Milky Way can be seen over a wind farm just north of Medicine Bow on January 3, just before moonrise. The glow along the horizon is light from Casper, more than 80 miles away.
Kyle Grantham, Casper Star-Tribune

 

So it appears that there are at least three policy positions surrounding decarbonization of energy. Now remember that decarbonization is an environmental goal.  But many different kinds of decarbonizing projects have environmental impacts (think powerlines, wind turbines, solar arrays, rare metals and uranium mining).  Some people think we must achieve all kinds of targets within 10 years, or the planet is kaput. Others look at our track record in the US and say, we can’t get this stuff built in 10 years with current procedures.  If this is an emergency, we should invoke emergency procedures.

So we have some people … 1) decarbonization will work without regulatory reform, agencies should just hire more folks (more gas same brake, in my terminology);

2) we want regulatory reform for some projects (wind and solar) and not for others (oil and gas);

3) Let’s get regulatory reform for key energy projects, including oil and gas (this is the Manchin point of view).

These debates are related to our forest world via energy projects sited on FS and BLM land, and whether proposed reforms would make sense for other types of forest projects.

In this Salt Lake City Tribune article:

Although the text of the bill has not been made public, a one-page memo on Manchin’s website indicates it could include significant reforms to NEPA.

Over 650 environmental groups from across the country are opposing the bill, which they fear will amount to a giveaway to the fossil fuel industry. In a letter to Congressional leaders, the groups wrote that the “legislative language that was clearly drafted in consultation with the American Petroleum Institute (API),” a reference to a watermark on a leaked memo with the letters API.

The prospect of altering bedrock environmental law and permitting processes has divided the Democratic caucus. Sen. Bernie Sanders, I-Vermont, announced his opposition to attaching the bill to must-pass spending legislation, and over 70 members of the House of Representatives have signed a similar letter.

In a new policy paper published this week, Pleune referenced the Manchin deal and argued that weakening environmental protections in the name of expediency would be a mistake.

“Accepting unfettered environmental degradation in exchange for clean energy would achieve short-term gains in exchange for long-term pain,” she wrote. “The unrelenting challenges caused by climate change provide an almost daily reminder that downplaying environmental risks does not make them go away.”

Do the ideas in the memo seem like “unfettered environmental degradation” to you?  Or do you think they are unnecessary, or won’t work to speed things up? What has been your own experience, and would any of these help? Let’s move past the rhetoric to the reality and practicality.

Energy Permitting Provisions
*Designate and prioritize projects of strategic national importance.
 Direct the President to designate and periodically update a list of at least 25 high-priority energy
infrastructure projects and prioritize permitting for these projects.
 Require a balanced list of project types, including: critical minerals, nuclear, hydrogen, fossil fuels, electric transmission, renewables, and carbon capture, sequestration, storage, and removal.
 Criteria for selecting designated projects includes: reducing consumer energy costs, improving energy reliability, decarbonization potential, and promoting energy trade with our allies.
*Set maximum timelines for permitting reviews, including two years for NEPA reviews for major
projects and one year for lower-impact projects.
 Require a single inter-agency environmental review document and concurrent agency review processes.
 Designate a lead agency to coordinate inter-agency review.
 Expand eligibility for the Federal Permitting Improvement Steering Council (FPISC) streamlining and transparency programs to ensure smaller energy projects, critical minerals and mining, and other key programs can benefit from FPISC. Provide FPISC funds to accelerate permitting.
 Improve the process for developing categorical exclusions under NEPA.

*Improve Section 401 of the Clean Water Act by incorporating improvements from both the Trump
and Biden administrations.
 Require one of four final actions within one year of certification requests: grant, grant with conditions, deny, or waive certification.
 Clarify that the basis of review is water quality impacts from the permitted activity, based on federal, State, and Tribal standards.
 Require certification applications to include available information on potential water quality impacts.
 Prohibit State or Tribal agencies from requesting project applicants to withdraw applications to stop/pause/restart the certification clock.
 Require States and Tribes to publish clear requirements for water quality certification requests, or else default to federal requirements.

*Address excessive litigation delays.
 Set statute of limitations for court challenges.
 Require that if a federal court remands or vacates a permit for energy infrastructure, the court must set and enforce a reasonable schedule and deadline, not to exceed 180 days, for the agency to act on remand.
 Require random assignment of judges for all federal circuit courts.
* Clarify FERC jurisdiction regarding the regulation of interstate hydrogen pipeline, storage, import, and export facilities.
*Enhance federal government permitting authority for interstate electric transmission facilities that have been determined by the Secretary of Energy to be in the national interest.
 Replace DOE’s national interest electric transmission corridor process with a national interest determination by the Secretary of Energy that allows FERC to issue a construction permit.
 Require FERC to ensure costs for transmission projects are allocated to customers that benefit.
 Allow FERC to approve payments from utilities to jurisdictions impacted by a transmission project.

*Complete the Mountain Valley Pipeline. Require the relevant agencies to take all necessary actions to
permit the construction and operation of the Mountain Valley Pipeline and give the DC Circuit jurisdiction
over any further litigation.

 

PALS Database Hits the Permitting Reform Big Time

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So things were heating up with the Manchin regulatory reform for energy projects, or perhaps “quid pro maybe… not. ” It’s kind of fun to watch (more important) groups discuss the same kinds of things we always discuss. But to my amazement, the Center for Western Priorities mentioned this paper, which is actually about the Forest Service and uses PALS. So I guess the FS has hit the permitting “big time.” Here’s what CWP said.

Senator Joe Manchin released the text of his proposed changes to the country’s process for permitting energy projects. The legislation proposes two-year time limits on environmental reviews, prioritization of transmission projects, and significant permitting changes under the Clean Water Act. It would also authorize the completion of the Mountain Valley natural gas pipeline in Manchin’s state of West Virginia.

Recent research from the University of Utah found that the median time for completing an environmental impact statement was 2.8 years, while environmental assessments were completed in a median time of 1.2 years. The study found the main cause of permitting delays was a lack of expertise or staffing, suggesting that increasing funding for federal agencies may be the best way to improve efficiency.

Here’s the conclusion of the law journal paper:

Reviewing over 41,000 NEPA decisions made by the Forest Service over a 16-year period, we observed that reports on average decision-making times across agencies are skewed by outlying decisions with extended timeframes. Focusing on the median decision-making times reveals that the majority of decisions adhere to a more predictable timeframe that is shorter than reported averages. Moreover, level of analysis does not dictate decision-making times. The fastest 25% of EISs are completed more quickly than the slowest 25% of EAs, and the fastest 25% of EAs are completed more quickly than the slowest 25% of CEs. This overlap demonstrates that efficiencies can be achieved at each level of analysis without foregoing the “hard look” required by NEPA. Focusing on activities associated with delay revealed that many sources of delay attributed to NEPA are caused by external factors. Some of these delay factors, like inadequate staffing, insufficient funding, time spent on inter-agency coordination, and litigation aversion can be addressed through fiscal and cultural reforms. Other sources of delay, like delays obtaining information from permittees, are not caused by NEPA and should not drive NEPA reforms. Finally, when used properly, NEPA’s function as an umbrella statute and can mitigate or avoid delays caused by compliance with other statutory and regulatory requirements. We hope that our work, focusing on real-world problems causing delay within NEPA implementation, will provide a springboard to reforms that improve NEPA efficacy and advance the twin goals of public engagement and informed decision-making

It’s nice to know that scientific researchers aren’t the only ones to not spend enough time on framing.  When people provide “evidence-based” answers in the literature and basically tell people who work in an area “your observations are wrong and off-base”, to me it’s a “Knowledge Production Situation That Shouts Watch Out!”.  If I had one improvement to make, I would require that before any journal publish an article about the practice of something, that practitioners review it.  Does that sound crazy? I hope not.

Nevertheless, there are many interesting findings in this paper that are worthy of discussion. So for those who are interested, please consider reading the whole thing and commenting.

1.  The Forest Service, for historical reasons, has never sited much wind or solar energy, it’s mostly BLM. So if you were going to ask the question about wind and solar and transmission  NEPA, why would analyzing FS decisions even be relevant? Perhaps because PALS exists, and BLM doesn’t have an equivalent (perhaps this is an example of the streetlight effect).

2. Many of us think it’s litigating claims under NEPA, NFMA, and ESA that takes time, not NEPA docs per se.  This paper doesn’t discuss litigation at all.

3. The FS has, jointly with BLM,  analyzed fossil fuel decisions, some of which I’ve been involved with.  They are usually in litigation for many years.  Interestingly, though, it’s hard to find a database of these timeframes.  I wonder, though, it seems like both the FS and the BLM should have tracking of litigation timeframes. In fact, the FS has/had an Appeals and Litigation database similar to PALS at least at one time.  We would be able to tell something relevant from that, I think.

4. I wonder what “litigation aversion can be addressed through fiscal and cultural reforms” means in the absence of changes in litigation. It seems to me that litigation aversion may be an  altogether rational response.. to.. er… litigation.

Litigation aversion leads to unwieldy, bulky, time-consuming documents. The EADM Roundtables National Synthesis Report summarized the problem as follows: “Minimal litigation or objection is viewed as a positive outcome in terms of a project moving to implementation, but the negative costs of defensive over-analysis, unwieldy documentation, and narrowing the scope of projects in order to ‘fly under the radar’ of litigants are not usually considered.”248The concern resurfaced later in the report when discussing lengthy documents as a barrier to efficient decision-making. “Risk aversion and a history of legal challenges to USFS decisions have led to the ‘bullet-proofing’ of environmental analysis documents and specialist reports.”249The report continued, noting that “the complexity and size of analysis is of-ten inconsistent with the complexity and size of the project.”250The report explicitly distinguished between this dynamic, which it identified as a cultural barrier within the Forest Service and the NEPA process it-self. “NEPA is often blamed for these problems, when really it is not the law itself but the Agency’s process that is the cause [of lengthy documents].”251This observation is consistent with external research on Forest Service NEPA practice. In 2010, Mortimer et al., found that the threat of litigation had more influence than the degree of environmental impacts on Forest Service decisions whether to prepare an EA or an EIS for recreationa nd as “risk averse,” fearful of “backlash,” “not feeling supported in making risky decisions,” “perceived risk of being litigated and fear of losing in court” and feeling criticized for taking a risk where “success [is] defined as lack of objections or litigation”); REGION 4ROUNDTABLE REPORT, supra note 195, at 8 (identifying Forest Service staff as “risk averse” and hemmed by a “sue and settle” reality); REGION 5ROUNDTABLE RESULTS, supra note 192, at 6, 20, 28 (identifying “risk averse USFS staff” with “fear of making decisions based on imperfect data” and stating that “fear of litigation results in excessive time spent and detail in EADM documents” where EADM documents are “‘padded’ to mitigate risk of litigation” and “litigation threat undermines opportunities to conduct large landscape EADM”); REGION 6ROUNDTABLE REPORT, supra note 192, at 6 (identifying “risk aversion” as a barrier with line officers “not wanting to ‘rock the boat’”); REGION 8ROUNDTABLE REPORT, supra note 192, at 6, 8 (identifying “fear of litigation and defensive NEPA stance” as well as reluctance toward “taking on large projects for fear of objection to one small part,” suggesting that District Rangers resist a project for political reasons “until they change jobs”); REGION 9ROUNDTABLE REPORT, supra note 192, at 6 (characterizing a “risk averse USFS culture at all levels” that produces “excessive documentation”); REGION 10ROUNDTABLE REPORT, supra note 200, at 6 (describing “risk aversion” as a barrier with Forest Service “litigation-proofing documents” based on a “perception that all NEPA documents are challenged when only a small percent are challenged”). 247REGION 1ROUNDTABLE REPORT,supra note 192; REGION 2ROUNDTABLE REPORT,supra note 192; REGION 3ROUNDTABLE REPORT,supra note 200; REGION 6ROUNDTABLE REPORT, supra note 192; REGION 8ROUNDTABLE REPORT, supra note 192.248EADMROUNDTABLES NATIONAL SYNTHESIS REPORT,supra note 131, at 13.249Id. at 19.250Id.251Id.

5.  Interesting about focusing on APD’s and the operator not providing information that slows down the use of CE’s.. My view would be that it’s leasing decisions that draw most fire (because APD’s have other analysis completed) and I think should have been looked at separately. But all of this is probably moot because it’s the litigation/litigation proofing cycle that takes time.

6. Most puzzling to me was this..

The regression database identified 86 projects involving Forest Plan Revisions. The fastest took 45 days and the longest took 5,695 days.  Only 16 (19%) took less than a year. Fifty-two of the 84 projects (60%) were analyzed in an EIS, 21 (24%) were analyzed in EAs, and 13 (15%) were analyzed in CEs. Eighty-four percent of the EISs took longer than the median time for EISs (44 out of 52 took longer than 1,006 days).

We could certainly learn something from the Forest Plan revisions that took 45 days and less than a year.. or maybe they were mislabeled or .. this certainly points to the utility of practitioner review, IMHO.

Again, there are many other interesting observations in this paper, and as long as this post is (sorry!) I only highlighted some. so please post the ones that you find intriguing in the comments.

The Need for Alignment: Internal to Agencies, Among Governments, and Within Administrations

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Diablo Canyon, California’s last operational nuclear plant, is due to be shut down in 2024.
PHOTO: GEORGE ROSE/GETTY IMAGES
This was the original photo that went with Ted’s op-ed in February. apparently the State decided to keep it open for five more years.

I’ve been thinking about alignment lately.  I’ll tell you three stories, then point you to an op-ed, and ask you for examples where you think alignment needs to be fostered, as well as ways to create alignment. I know some “old Forest Service” types that could produce alignment, perhaps that was a different cultural moment, or they had skills that could still be useful?

(1) First, when I was trying to get input from Forest Service research silviculturists for our MOG letter, I was told (as were others) that they weren’t allowed to talk about it.  So I asked Jamie Barbour and he said that wasn’t the case.  All the National Forest System silviculture folks returned my calls and emails, and answered my questions.  The Forest Service didn’t know there was a problem with alignment until someone from outside told them. How else would they know?  I’m expecting by the next round of comments on MOG, this will be cleared up.

Intra-organizational alignment.  In a large organization, tough to achieve and keep going.

(2) Second, I have a friend in a mountainous subdivision of Denver, who is working wholeheartedly on wildfire mitigation.  I could give many examples, but here’s one.  She’s trying to get infrared cameras placed on mountaintops.. but some telecom group wanted to charge $30K or so a month to put it there.  Other telecom companies would do it as a public service, but perhaps not in the best locations. If it were really important to do whatever to stop fires in communities.. people would be looking at this.  Maybe there are but we don’t know.  So many moving parts, so many responsibilities so much unclear.

Alignment among levels of different government and other authorities.. perhaps the most difficult kind of alignment to achieve.  Often it’s not really clear who is in charge of what, and it’s not clear that anyone is looking at the big picture. And at the same time, looking at the mis-alignments at the local level where the proverbial fire hits the stucco.  I hope that the Wildfire Commission might help with multi-level alignment, but I wonder whether they will solicit input on “why it’s hard to get mitigation done” from all the relevant people and institutions at the local levels.

(3) Third is the obvious challenge of “more energy infrastructure ASAP” versus current permitting procedures.  Some groups seem to feel like the current situation cannot be changed in any way or “the nations fundamental environmental laws will be undermined.” Some groups were pushing President Biden to declare a “climate emergency”.   It seems logical, perhaps, then that emergency CEQ and agency NEPA provisions could be invoked for a very wide range of mitigation and adaptation projects- including ones that would be off-limits if the groups promoting “no cutting of 80 year old trees” win out.  It seems like a major misalignment to me. Because nowadays everything can be linked in some way to climate change mitigation or adaptation.

But back to the renewable build out vs. permitting procedures as sacred text as described by Ted Nordhaus of The Breakthrough Institute in this Wall Street Journal op-ed.

In Nevada’s Black Rock Desert, local environmentalists and devotees of the Burning Man festival are using the National Environmental Policy Act (NEPA) to oppose a geothermal energy plant. Further south, the Sierra Club has joined with all-terrain vehicle enthusiasts to stop development of what would be the nation’s largest solar farm, which it says threatens endangered tortoises. Along the Atlantic seaboard, plans for major offshore wind farms have been hogtied by provisions of the Jones Act, an obscure law that requires maritime cargo to be transported exclusively by U.S.-flagged ships when it is shipped between domestic ports. It is an obstacle that may ultimately prove beside the point because proposals to develop wind energy in American coastal regions have also faced a constant barrage of NEPA and Endangered Species Act (ESA) lawsuits designed to stop them.

The problem isn’t limited to renewable energy. In California, environmentalists have used a state law designed to protect fish eggs as a pretext to close the Diablo Canyon Nuclear Power Plant, the state’s largest source of clean energy, while the California Environmental Quality Act has hobbled efforts to build both high-speed rail and high-voltage transmission lines that the state is counting on to meet its climate commitments. In Washington, D.C., meanwhile, the Nuclear Regulatory Commission peremptorily rejected last month the application of the first advanced nuclear reactor developer to seek a license before the commission, to cheers from leading environmental groups.

Across the country, foundational laws established in the 1960s and 70s to protect the environment are today a major obstacle to efforts to build the infrastructure and energy systems that we need to safeguard public health and save the climate. Though the Biden administration and Democrats currently propose to spend close to a trillion dollars on low-carbon infrastructure and technology, there is little reason to believe the U.S. is capable of building any of it in a timely or cost-effective way.

I particularly liked the ATVs and Sierra Club aligned.  And doesn’t it make you wonder where all the money will actually go? Check the whole op-ed out, I don’t think it’s paywalled.

Will there be environmental costs to clearing away the detritus of decades of environmental regulatory policies? Without question. Some ill-conceived projects will get the green light, and those projects may have a negative impact on local environments. But we have a range of other legal tools to protect our most valuable environmental resources, from federal authority to protect public lands to the Clean Water Act and the Clean Air Act.

The U.S. can no longer continue to neglect its compounding infrastructure and clean-energy needs. We aren’t going to regulate our way to a thriving low-carbon economy and a more stable climate. America needs to get back to building again.

I was reminded of Sally Fairfax’s article in 1978

  • Sally K. Fairfax, “A Disaster in the Environmental Movement,” 199 Science743 (17 Feb.1978)
Unfortunately I can’t get through the paywalls ($30 to Science and it’s not available to free users of JStor) to clip out pieces of the paper, but as I recall, her argument was that NEPA focused environmental groups on procedural rather than substantive statutes.  Nevertheless, I would say to Nordhaus that ESA is a procedural statute like CWA and CAA. Maybe there’s a legal reason those are less often used.

Reporter Questions on Emergencies and Litigation and the Sequoia Emergency Response Approved

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Figure 5: Indian Basin Grove ladder fuels in 2022 which reach into the crowns of the sequoias. Many of the dead trees
have already fallen and are adding to the surface fuels that can burn at high intensity and kill the sequoia roots. This is
another example of a Giant Sequoia Grove with no recent fire history. Indian Basin Grove is proposed for emergency fuels treatment.

 

A journalist contacted me and asked about the Region 5 Sequoia Emergency Response letter. This emergency uses 36 CFR 220.4.

(b) Emergency responses. When the responsible official determines that an emergency exists that makes it necessary to take urgently needed actions before preparing a NEPA analysis and any required documentation in accordance with the provisions in §§ 220.5, 220.6, and 220.7 of this part, then the following provisions apply.

(1) The responsible official may take actions necessary to control the immediate impacts of the emergency and are urgently needed to mitigate harm to life, property, or important natural or cultural resources. When taking such actions, the responsible official shall take into account the probable environmental consequences of the emergency action and mitigate foreseeable adverse environmental effects to the extent practical.

(2) If the responsible official proposes emergency actions other than those actions described in paragraph (b)(1) of this section, and such actions are not likely to have significant environmental impacts, the responsible official shall document that determination in an EA and FONSI prepared in accord with these regulations. If the responsible official finds that the nature and scope of proposed emergency actions are such that they must be undertaken prior to preparing any NEPA analysis and documentation associated with a CE or an EA and FONSI, the responsible official shall consult with the Washington Office about alternative arrangements for NEPA compliance. The Chief or Associate Chief of the Forest Service may grant emergency alternative arrangements under NEPA for environmental assessments, findings of no significant impact and categorical exclusions (FSM 1950.41a). Consultation with the Washington Office shall be coordinated through the appropriate regional office.

(3) If the responsible official proposes emergency actions other than those actions described in paragraph (b)(1) of this section and such actions are likely to have significant environmental impacts, then the responsible official shall consult with CEQ, through the appropriate regional office and the Washington Office, about alternative arrangements in accordance with CEQ regulations at 40 CFR 1506.11 as soon as possible.

 

Here’s a link to a CEQ guidance letter from 2020.  I guess I never really got in my head the “immediate threats to valuable natural or cultural resources” angle in addition to “public health or safety”. Seems like Sequoias certainly fill the bill.

Specifically the reporter asked:

1) is there a way to find/track ongoing litigation and results on each forest?

2) Is there anyone who knows the ins and outs of using this legal framework (knowledgeable party without direct interests)

My questions are:

4) (I asked this in the Hazard Tree post, but we can discuss here) how often has this Chief’s authority been used and for what kind of projects?

5) can the use of these different Emergency Responses (Chief or CEQ)  be litigated? If so, what is the history on that?

Anyway, here are links to the Sequoia Emergency Response approval letter.. DECISION MEMORANDUM_FOR THE CHIEF_R5_EmergencyResponse_GiantSequoia and below are the recommendations. Photos and more explanation and specifics in this  Enclosure_GiantSequoia_EmergencyResponse_withAppendices_July2022 (1)

 

Approve the proposed emergency response for NEPA compliance under 36 CFR 220.4(b)(2) with associated conditions so that the Sequoia and Sierra National Forests can immediately
implement fuels reduction treatments within 12 Giant Sequoia groves.

Proposed Emergency Response:
1. Grant authorization to begin the fuels reduction treatments on approximately 13,377 acres (displayed in attached maps) prior to completion of the documentation of the Categorical
Exclusions (four) and Environmental Assessments and FONSIs (three).

2. For the four Categorical Exclusions, exclude the requirement at 36 CFR 220.6(e) to document a decision to proceed with an action in a decision memo for certain Categorical Exclusions.

3. For the three Environmental Assessments and FONSIs, exclude the requirement at 36 CFR 220.7(c) to document a decision to proceed with an action in a Decision Notice if an EA and FONSI have been prepared.

Associated Conditions:
4. Ensure compliance with other laws, such as Endangered Species Act, National Historic Preservation Act, and Clean Water Act are in place before implementation of the fuels treatments.
5. Ensure all required consultations and permitting have been completed before implementation of the emergency fuels treatments. Emergency provisions may be employed where necessary, such as emergency consultation under ESA.
6. Stakeholders will be notified of the approved emergency response.
7. For those projects which have not initiated public or tribal involvement, initiate public scoping and tribal engagement within 45 days of approved emergency response actions. Continue engagement with the Giant Sequoia Working Group and Giant Sequoia Lands Coalition.
8. Monitor the effects of the actions subject to emergency response. Reconsult with my office through the Director of Ecosystem Management Coordination if monitoring reveals effects outside of those disclosed in the ongoing environmental analysis.
9. The intent is to complete the Emergency Response for Emergency Fuels Treatments by the end of 2023, however emergency fuels treatments may occur through 2024. The Pacific Southwest Region will provide regular implementation progress updates. An annual review will be conducted to re-evaluate the need for the emergency response.
10. All other proposed actions in the EAs and CEs which are not part of this

Leaked Draft Permitting Deal from WaPo: What’s in There and Would it Work?

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Here’s a leaked copy of draft legislation for permitting “side deal”.. maybe someone want to read through this and figure out what it means and whether or not it is likely to help?

Here’s a link to a WaPo article:

According to our old friend Rep. Raul Grijalva, there seems to be no middle ground.

“Destroying NEPA has long been on Republicans’ wish list,” Rep. Raúl Grijalva (D-Ariz.), the House Natural Resources Committee’s chairman, said in a recent interview. “But now, in a bizarre twist of history, Democrats are in a position to deliver on that agenda.”

Here’s what the WaPo says about the contents:

The leaked draft of the bill, which bears the watermark of the American Petroleum Institute, would shorten environmental reviews under the National Environmental Policy Act and require President Biden to designate 25 energy projects of “strategic national importance,” among other provisions.

And responses of groups.. but is a deal a deal or not? Is it too late to go back on the deal? Were groups negotiating in good faith, or are these different groups?

A coalition of 650 climate groups on Wednesday sent a letter to Democratic leadership expressing “strenuous opposition” to the deal. Earthjustice, an environmental law organization, has also circulated an analysis of how the permitting proposal could accelerate the approval of fossil fuel projects, according to a copy of the analysis obtained by The Post.

“There’s a misconception right now that we won’t be able to build out the clean energy infrastructure we desperately need unless we roll back environmental laws,” said Earthjustice President Abbie Dillen.

But Heather Zichal, a former White House climate adviser who is now the chief executive of the American Clean Power Association, said the permitting proposal will play an essential role in realizing the benefits of the climate bill, dubbed the Inflation Reduction Act.

“There are so many terrific new opportunities for clean energy deployment within the Inflation Reduction Act,” Zichal said. “If you don’t have a parallel call to modernize the way these projects are permitted, it’s hard for me to see that these projects will come online in a timely manner.”

It looks like it’s “clean” power supporters vs. the “current permitting processes as sacred” groups.. I think it will be hard for either to argue from a position of moral superiority. Which will be a welcome relief, at least to some of us.

Energy Permitting Provisions Associated With New Bill Inflation/Climate But in Separate Legislation

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It’s always interesting to see what people think about regulatory reform for energy compared to our humble forest projects.

But some people are fairly consistent.. according to Center for Western Priorities:

“These changes to the energy permitting process would occur via legislation separate from the Inflation Reduction Act and would not qualify for the Senate budget procedure, making it impossible to approve a simple majority. The new agreement will need 60 votes to be approved and therefore requires Democratic and Republican support in order to pass.

According to a one-page summary, the new legislation would set new two-year maximum limits for environmental reviews for major projects and would expedite the approval process for energy projects by centralizing decision-making within one agency. It would also make it more difficult to challenge energy projects under the National Environmental Policy Act and would give the Department of Energy more authority to approve electric transmission lines.

The additional legislation is likely to face opposition from environmental groups and Democrats like Representative Raúl Grijalva, the chairman of the House Committee on Natural Resources, who said he’s worried that “comprehensive permitting reform” is a euphemism for gutting foundational environmental and public health protections like the National Environmental Policy Act.

 

Regulatory Reform in the Proposed Inflation Reduction Act of 2022: Please Help Locate Text

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Apparently there is something in the proposed Inflation Reduction Act of 2022 about permitting (including NEPA) reforms for energy siting that would no doubt affect Federal lands.

Let me make it clear, I will not vote to support policies that make the United States more dependent on foreign energy and supply chains or risk moving the country closer to the unstable and vulnerable European model of energy we are witnessing today. Most importantly, I am heartened by the bipartisan recognition that for America to achieve our energy and climate goals, it is critical we reform the broken permitting process. President Biden, Leader Schumer and Speaker Pelosi have committed to advancing a suite of commonsense permitting reforms this fall that will ensure all energy infrastructure, from transmission to pipelines and export facilities, can be efficiently and responsibly built to deliver energy safely around the country and to our allies.

It also apparently has some provisions about fossil and renewable energy on federal land, the Atlantic says “it forbids the government from selling leases to install solar or wind on federal land or seafloors when it has not also recently opened territory to oil and gas developers.”

I saw someone on Twitter say..

We need an 8 year, highly litigious process to ascertain the environment impacts of speeding up the permitting process.

Which cracked me up a bit until I remembered I had actually spent time on a NEPA process for an NFMA rule…

Here’s a link to the text if someone wants to look for provisions of interest to us and post them. It would be greatly appreciated.

Opponents of conservation invoke NEPA

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Image: Scout Environmental

I have made several comments recently about situations that should not trigger NEPA procedures because they do not have adverse effects on the physical environment.  I became interested in this topic in 1986 when I noticed that development interests were arguing that forest plans adversely affected “community stability” (a euphemism for social and economic impacts), and this was being addressed as an “environmental” impact in NEPA documents.  Given that the goal of NEPA was better environmental protection, I could see how inferring that social and economic impacts of protecting the environment must be addressed through a NEPA process could lead to less environmental protection.

As an example of that actually happening, let’s talk about the proposal to conserve 30% of the nation’s lands (America the Beautiful/30 x 30).

Property rights advocate Margaret Byfield’s strategy for defeating the Biden administration’s aggressive conservation pledge comes with a twist: She wants landowners to embrace the nation’s bedrock environmental law.

Byfield, the executive director of American Stewards of Liberty — and daughter of the late E. Wayne Hage, an icon of the Sagebrush Rebellion II movement — sees the National Environmental Policy Act as a cudgel in her campaign to upend the “America the Beautiful” program.

But Byfield emphasized Friday that the strategy must also embrace NEPA, arguing the Biden administration has skirted its responsibility to execute “a programmatic” environmental review of its “America the Beautiful” plan.

“This is the environmentalists’ great law that they use as a weapon against productive agriculture and actually any kind of project,” Byfield said. “They use it to slow down and stop projects, they use it as a weapon.”

Byfield asserted that the Biden administration has skirted NEPA by moving forward without an environmental review.

“They also know if they do NEPA right, it’s going to take them three, maybe six, maybe nine, maybe 10 years to complete the study the way they make us do it. So why aren’t they living under the same laws they force us to follow?” she asked.

The obvious reason is that NEPA was not passed by Congress to protect “agriculture and actually any kind of project.”  The ASL seeks to turn NEPA on its head.  The interesting thing is that the Center for Biological Diversity did not mention this, instead stating that the President and executive orders are exempt from NEPA, and actually inferred that the future site-specific conservation actions could require NEPA procedures.

The law regarding application of NEPA to non-environmental consequences of environmental protection measures is less clear than it should be.  The Supreme Court framed this question in Metropolitan Edison Co. v. People Against Nuclear Energy in 1983

But we think the context of the statute shows that Congress was talking about the physical environment — the world around us, so to speak. NEPA was designed to promote human welfare by alerting governmental actors to the effect of their proposed actions on the physical environment.

But, here’s a confusing discussion by the Ninth Circuit in the 2000 case of Kootenai Tribe of Idaho v. Veneman, which challenged the procedures used to adopt the Forest Service’s Roadless Area Conservation Act (the “Roadless Rule”).  (Other plaintiffs in this case were Boise Cascade Corporation, motorized recreation groups, livestock companies, and two Idaho counties.)  The Forest Service did not appeal the district court’s injunction of the Roadless Rule, but an appeal was filed by environmental intervenors, who argued that the Rule did not alter the natural physical environment and require an EIS under NEPA.

Under NEPA, a federal agency is required to prepare an EIS for all “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C) (emphasis added). “Human environment,” in turn, is defined in NEPA’s implementing regulations as “the natural and physical environment and the relationship of people with that environment.” 40 C.F.R. § 1508.14. See also Wetlands, 222 F.3d at 1105. The dispositive issue here is whether the Roadless Rule sufficiently affected the quality of the human environment to trigger the procedural requirements of NEPA.

We have explained that NEPA procedures do not apply to federal actions that maintain the environmental status quo. See Burbank Anti-Noise Group v. Goldschmidt, 623 F.2d 115, 116-17 (9th Cir.1981) (NEPA does not apply when an agency financed the purchase of an airport already built); Nat’l Wildlife Fed’n v. Espy, 45 F.3d 1337, 1343-1344 (9th Cir. 1995) (NEPA does not apply when agency transferred title to wetlands already used for grazing); Bicycle Trails Council of Marin v. Babbitt, 82 F.3d 1445, 1446 (9th Cir.1996) (closure of bicycle trails does not trigger EIS). In other words, “an EIS is not required in order to leave nature alone.” Douglas County, 48 F.3d at 1505 (citation and internal quotation marks omitted). The touchstone of the EIS requirement is whether the change in the status quo is “effected by humans.” Id. at 1506.

Because human intervention, in the form of forest management, has been part of the fabric of our national forests for so long, we conclude that, in the context of this unusual case, the reduction in human intervention that would result from the Roadless Rule actually does alter the environmental status quo.

This perverse rationale (for this “unusual” case) has no citations, and I think it is only justified by a desire to decide the case on the merits of the EIS (which it upheld) rather than on a procedural question.  Moreover, it ignores the additional requirement that the environmental status quo must be adversely affected (the term “adverse” is used many times in the CEQ NEPA regulations).  Here is a 2012 paper on “beneficial effects” under NEPA.  Its conclusion echoes my concern from 35 years ago (which has become a reality).

Third, the policies underlying NEPA are in tension with a Beneficial Impact EIS requirement. Such a requirement would produce unnecessary cost and delay for environmentally beneficial projects and create perverse incentives for federal agencies without any compensating informational benefits.

Agencies that are using NEPA to justify delaying environmental protection are probably not violating the words of NEPA, but clearly violate its spirit.  Moreover, anti-environmental plaintiffs should not be able use the courts to facilitate this violation.