NEPA

CE’s are Not “Exempt from NEPA Review”

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We’ve been following the Fix our Forests Act.  Nick Smith posted an article in the Durango Herald that I think is worth taking a look at.  There seems to be a repeated statement that implies that CEs are not part of NEPA, which kind of implies that only EAs and EIS’s are “real NEPA.” Unfortunately, no NEPA person was interviewed other than John Rader of the San Juan Citizens Alliance.

But newly proposed changes, now in the form of legislation that would let fuel mitigation projects, including logging, in high-risk zones like the forest surrounding Durango skirt the public input process have some environmental groups up in arms.

The Fix Our Forests Act is an attempt to “undermine public process and judicial review,” said John Rader, an attorney and the Public Lands Program manager at the Durango-based San Juan Citizens Alliance.

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In those areas, of up to 10,000 acres (which includes a swath of the San Juan National Forest north of Durango), the bill outlines a slate of vegetation management tactics that would be exempt from the scrutinous review prescribed in the National Environmental Policy Act.

I feel like a broken record.  CEs are a part of NEPA. CE’s are a part of NEPA.  I think it would be more correct to say “currently CEs are allowed for up to 4K (or whatever).

But, he pointed out, whether a forest is best treated by logging, mastication, prescribed fire or some other method, is a question asked in the early stages of the NEPA process.

“That’s the initial stages of NEPA, right?” Kimple said. “Where are we? What does this look like? Where are we in proximity to values?”

 And there are already some 650,000 acres of national forest approved through NEPA and ready to burn, the SJNF told the Herald in 2023. The Forest Service treated 25,000 acres last year, meaning it’s likely to take many years to burn all acreage that has already been approved.

Although new prescribed fire plans would be exempt from NEPA review, it is fears of unchecked logging projects and heavy livestock grazing nationwide that has environmental groups concerned that the bill is a Trojan horse masquerading as wildfire hazard mitigation.

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CEs are not “exempt from NEPA review.”

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“It’s kind of the template to erase all these environmental protections in the name of creating more wildfire protection,” he said.

By exempting projects from NEPA review, the Fix Our Forests Act would keep the public in the dark, Rader fears, while fast-tracking projects that could be detrimental to the natural environment.

“Every step of the way, it’s cutting out public input and keeping the public from being informed about the details of these projects,” he said.

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Rather than the traditional NEPA public input process – a lengthy undertaking that can take years to complete – the Fix Our Forests Act would establish a far quicker public comment review timeline and radically overhaul how those projects are subject to legal scrutiny. The bill contains a “common sense litigation reform” provision that limits public comment to a 120-day period with the intention of reducing frivolous lawsuits.

Rader warns this “really insidious” provision could have the opposite effect, arguing that the shot-clock may increase the proportion of poorly prepared lawsuits.

Not sure that would be the FS’s, DOJ’s, or the public’s problem.

Forest Service CEs are required to have scoping (public input). They are also required to review extraordinary circumstances and follow standards in the forest plan, which had an EIS associated with it.  On the other hand,  EAs have alternatives (although in some conditions, only one no action) and an additional process of objections.

An interesting question might be the value of the objection process compared to the costs associated with dealing with them (in our Region in the past, these were run out of the RO by siphoning off talent from forests, which would have a host of opportunity costs).  I’d think that some academic group might want to take a sample of CEs and EAs for fuels projects of similar size and nature (prescribed fire vs. mechanical thinning) and compare the timelines, expenses, and value added by the additional analysis (if any) and process.

Previous iterations of streamlining have included putting requirements on the use of CEs such as HFRA requiring projects to be in a certain condition class and be part of a collaborative effort. If I were a group who was concerned about public input, I’d work with the Congressional staff to standardize what is in the scoping document and timeframes for scoping, or other ideas to improve that aspect of public involvement during the use of CEs.  Especially with changes to the CEQ regulations, at some point the agency NEPA regs would be updated, so this would be a chance for folks to review the current use of CE’s, which is widespread, and instead of saying “they’re not NEPA, and they’re bad”, work on how to improve their use.

New NEPA Guidance from CEQ

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As Jon pointed out in his Litigation Update, the combo of various court cases plus administrative actions has led to the CEQ NEPA regs being pulled. So here’s the guidance.

While these revisions are ongoing, agencies should continue to follow their existing practices and procedures for implementing NEPA consistent with the text of NEPA, E.O. 14154, and this guidance. Agencies should not delay pending or ongoing NEPA analyses while undertaking these revisions. For such analyses, until revisions are completed via the appropriate rulemaking process, agencies should apply their current NEPA implementing procedures with any adjustments needed to be consistent with the NEPA statute as revised by the FRA. Moreover, although CEQ is rescinding its NEPA implementing regulations at 40 C.F.R. parts 1500–1508, agencies should consider voluntarily relying on those regulations in completing ongoing NEPA reviews or defending against challenges to reviews completed while those regulations were in effect. CEQ will provide ongoing guidance and assistance through monthly meetings of the Federal Agency NEPA Contacts and the NEPA Implementation Working Group required by section 5(c) of E.O. 14154. CEQ encourages agencies to use the final 2020 rule “Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act” as an initial framework for the development of revisions to their NEPA implementing procedures,4 consistent with this guidance, E.O. 14154, and to the extent permitted by
applicable law.

I hope practitioners get a strong voice in this updating, and that the Federal Agency NEPA Contacts will be listened to.

Of course, the two agencies we mostly follow have their own NEPA regs, so that’s what they will be doing.  I don’t usually check BLM regs, but for this post I was checking on them and ran across this interesting Federal Register Notice about their NEPA procedures.

It looks like they got rid of various administrative Cat Xs and added legislative ones.  This seems fairly unusual but interesting. The rationale seems kind of vague to me.

With this revision, the Department removes four administrative CXs from the BLM’s NEPA procedures due to consideration of sound land management, legal frameworks, and other factors.

Only 33 comments were received.  I don’t think the FS every removed CE’s, usually the courts did that for us ;).

While looking at this, I ran across a very handy link that describes what the Fiscal Responsibility Act says about NEPA. It’s very clear and done in Q and A’s.

Bottom line, NEPA practitioners (internal and contractors and grantees) need to use the existing agency regs and check for adherence to E.O. 14154, and FRA.  I wouldn’t doubt that there will be some guidance on “checking for adherence to FRA” that will come down at some point.

If the lawyerly folks here see things differently, let me know.

And Now for Something Completely Different: How the White House Can Reform NEPA

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We were asked to give our thoughts on this piece by Aidan Mackenzie and Thomas Hochman.  They have been studying permitting reform for some time, and are definitely a fresh set of eyes on our ongoing challenges. They are our guests, so please respect that, and focus on the content.  I’m particularly interested in the views of those experienced with NEPA, including practitioners and environmental attorneys.

Three steps CEQ can take to fix permitting

On day one, President Trump took bold executive action to streamline the National Environmental Policy Act (NEPA), revoking the 1977 Executive Order (EO) that gave regulatory authority to the Council on Environmental Quality (CEQ).1 President Trump’s new EO also directs CEQ to rescind existing NEPA regulations and issue new guidance that significantly accelerates permitting timelines. With these measures, the Trump administration has thrown out decades of NEPA regulations and related case law.2

For those of us who have spent time learning all this..it’s fairly scary.  And as Ted Boling said about the FRA, it’s a full employment program for environmental attorneys to rebuild case law. Nevertheless, here’s the general outline of their ideas:

CEQ and implementing agencies can leverage reasonable interpretations of statutory NEPA and FRA language to achieve three significant goals:

  1. Narrow the set of actions that trigger NEPA in the first place.
  2. Expand the set of actions that are eligible for a Categorical Exclusion (CatEx).
  3. Narrow the set of actions that require an Environmental Impact Statement (EIS).

We offer three reforms to pare NEPA back to fulfill its true statutory goals. First, to narrow the set of actions that trigger NEPA, CEQ should redefine “major federal action” to ensure that projects with low levels of federal involvement do not trigger NEPA. Second, to expand the set of actions that are eligible for a CatEx, CEQ should set a clear and broad standard for actions that “normally [do] not have a significant effect on the human environment.” Third, to narrow the set of actions that require an EIS, CEQ should set a high standard for what constitutes a “reasonably foreseeable” significant effect. In each case, CEQ should be careful to reduce the litigation attack surface for agencies, advising agencies to consider issues like indirect effects under minimal scrutiny.

We can discuss any parts of their paper, but I’ll focus on the more “on the ground” implementation aspects of #2.

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The term “normally” should be defined using a practical, bright-line test for significant effects. Agencies can reasonably classify actions as “normally” having no significant effect when a substantial majority of such actions have proven benign through actual implementation.

Specifically, an action category should qualify for a categorical exclusion when historical data demonstrates that a substantial majority (more than 70%) of comparable actions resulted in Findings of No Significant Impact (FONSI). This threshold replaces previous interpretations requiring near-certainty of no significant impacts, recognizing that if a substantial majority of similar actions have proven benign through actual implementation, the category can reasonably be classified as “normally” having no significant effect.18

The streamlining benefits would be enormous: ~99% of environmental assessments result in a FONSI.19 This means that an overwhelming percentage of actions that currently trigger an environmental assessment could be covered under categorical exclusions under the new framework.

How to implement

Agencies should document factors that indicate future actions will maintain similar performance, including:

  1. Standard mitigation measures that routinely prevent significant impacts
  2. Existing permit requirements that effectively control environmental effects
  3. Common design features of best practices incorporated into such projects

These predictive factors help establish that the historical performance demonstrated by the 70% threshold will continue.

To support categorical exclusion determinations, agencies should:

  1. Analyze historical NEPA reviews to establish the proportion of FONSIs

  2. Evaluate how standard practices and requirements will maintain environmental performance

  3. Provide professional assessment of typical project characteristics and their environmental implications

  4. Maintain extraordinary circumstance review protocols for unusual situations.

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This sounds a bit like how our FS administrative CEs were developed in the first place.  People also depend on NEPA for public engagement, and the FS requires scoping of CEs but I’m not sure that other agencies do.  Finally, I don’t know how much is saved by a CE vs. an EA.  Here’s what I think it might be for an FS project off the top of my head. I have been out of this awhile, so may have forgotten quite a bit.

CE EA
Public comment Scoping Scoping plus Draft EA
Alternatives One Two or More
Objection Process No Yes

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 NEPA has never explicitly defined “significant effect,” leaving room for a much more reasonable interpretation. Therefore, we recommend that an action should meet all three of the following criteria to be deemed significant:

  1. Substantial magnitude: Exceeding minor or routine environmental changes

  2. Inadequate existing mitigation: Impacts that persist despite standard, widely used measures or compliance with existing regulatory thresholds

  3. High likelihood: Based on probable, non-speculative outcomes, and proximately caused by federal action

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By tying “significance” to magnitude, likelihood, and lack of adequate mitigation, CEQ would shrink the set of “significant” impacts. This would also narrow the “cumulative impacts” concept: if those broader or longer-term effects are speculative, the agency can exclude them from “likely.” And finally, if standard permitting under other environmental laws (such as the Clean Air Act or Clean Water Act) typically addresses any effect, CEQ could determine that that the effect no longer rises to significance because it will be mitigated to an acceptable level under those other laws.

This approach would maintain fidelity to statutory language while allowing for practical implementation, reducing unnecessary analysis for actions with demonstrated track records of minimal impact. It would also create clear standards that can withstand judicial review when properly documented.

How to implement

To establish magnitude thresholds, agencies should:

  1. Identify quantitative thresholds where possible (e.g., acres of disturbance, emissions levels)
  2. For non-quantifiable impacts, define clear categorical standards for what constitutes “substantial” versus “minor” changes
  3. Document why these thresholds represent meaningful environmental distinctions

To establish likelihood, agencies should:

  1. Develop clear standards for what constitutes “probable” versus “speculative” impacts
  2. Require demonstration of direct causal links between federal action and environmental effects
  3. Consider effects that involve multiple independent actors or events as generally more speculative
  4. Prioritize analysis of direct, proximate impacts in determining significance
  5. Effects may be considered more speculative and thus less likely to be “probable” when they:
    1. Depend on the combined effects of multiple separate actions
    2. Require assumptions about future actions by other parties
    3. Cannot be directly attributed to the federal action under review

To establish adequate and existing mitigation, agencies should:

  1. Catalog standard permit conditions and widely-used mitigation measures by project type

  2. Create presumptions that impacts are not significant when standard mitigation measures are applied

  3. Establish protocols for determining when additional, project-specific mitigation might be needed.

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These all sound like things (except maybe the last three)  that agencies could put into their NEPA regulations, which would likely themselves be litigated.  At the same time, if the regulations could make their way through the courts successfully, it seems like these approaches and documentation might make life easier for agency folks, judges and environmental attorneys, while ensuring that the statutory NEPA requirements are met.

Let’s Review Some Forest Service NEPA Stats

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If you all have been following the California wildfires, you’ll discover that everyone tends to attach their favorite hobby horse to the disaster.

Politicians, climate change, patterns of housing, and even… vegetation treatments and permitting.   My pet peeve about coverage is how easily folks get into a forest discussion about what, in this case, was coastal scrub and grasslands.  Having said that, I think we need to engage with the permitting folks for many reasons,  not least because permitting reform of various kinds will be on the table in Congress again.  However we might disagree about what should be done, it seems to me that we should work together to get both facts and disagreements on the table.

I try to be hospitable to new people entering the space. Interestingly, permitting reform folks, who work on permitting infrastructure, renewables and so on, tend to use the Forest Service as an example. So we can help them out by adding value and/or questioning their observations.

I’m going to reprint Tom Hochman’s Substack post below.  Remember, we want to share our knowledge with a welcoming spirit. Also it doesn’t seem (as usual) that partisan-ness helps our policy discussions in any way. I’ve spent some time talking to DC folks in the last few weeks, and I think both sides needs to take a deep breath and try to move on past the acrimonious past (do politicians forgive?) so we all can move forward together.

So, from what you know, do these observations make sense and track with your experience? Here’s Hochman’s piece.

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By now, everyone has heard about the wildfires sweeping through the Los Angeles area. The sheer scale of destruction is hard to make sense of. My cousin, aunt, and uncle in Pasadena spent days anxiously packed, ready to evacuate at any moment. Their friends lost their homes; the local elementary school is rubble.

It’s tough to pinpoint a single cause for any given wildfire—and wildfires sometimes happen regardless of human activity or government policy. But there’s no doubt that forest management and wildfire-prevention policies can reduce both the probability and severity of wildfires. In California and at the federal level, those policies have often fallen disastrously short.

With that, here’s a wildfire-focused edition of NEPAstats. I’ve compiled data (all cited at the bottom) on how NEPA and similar review processes intersect with wildfire prevention, and I’ve pulled together a number of specific case studies.

Case Studies

Jimtown Project (Helena National Forest)
  • Proposed thinning/underburning across 900 acres + underburning 220 more
  • EIS and Decision Notice released in May 2001
  • Project appealed despite support from 12 of 22 local landowners, county disaster services, and a tri-county fire group
  • By July 2003: ~45% of the proposed project area had already burned in a wildfire (Kimbell, 2005)

Six Rivers National Forest

  • December 1995: A storm topples trees across 35,000 acres
    • Fuel loads reach 300–400 tons per acre—10x normal
  • 1996–1999: Only 1,600 acres treated while “wrestling through analytical and procedural requirements”
  • September 1999: The Megram and Fawn Fires consume the remaining blowdown area plus 90,000 additional acres
  • Seven years later: The project remains in limbo after a court injunction (USFS, 2002)

Berry Creek (California)

  • Critical thinning projects were delayed by CEQA reviews
  • The North Complex Fire hit in 2020 before completion, resulting in 16 fatalities (Regan, 2025)

Grizzly Flats (California)

  • A forest-restoration project was held up for nearly a decade by NEPA and other environmental reviews
  • In 2021, two-thirds of the community burned before the project was completed (Regan, 2025)

Timing and Delays

Average time before treatments under NEPA
  • 3.6 years to start a mechanical treatment once the Forest Service initiates review
  • 4.7 years to start a prescribed burn under the same conditions
  • For projects requiring an EIS:
    • 5.3 years on average for mechanical treatments
    • 7.2 years for prescribed burns (Edwards & Sutherland, 2022)

Forest Service resource allocation

  • The Forest Service manages 192 million acres—8.5% of U.S. land area—but spends ~40% of direct work hours (>$250 million/year) on planning/assessment rather than active project work (USFS, 2002)
    • An estimated $100 million annually could shift from “unnecessary planning” to on-the-ground treatments with improved procedures
  • Annually, the Forest Service completes:
    • ~5,000 EAs,
    • ~120 project-level EISs
    • 15,000 CEs per year (USFS, 2002)

Litigation Patterns and Impact

  • Sierra Club v. Bosworth (2007) invalidated the Forest Service’s attempt to create a CE for fuel-reduction projects, meaning prescribed burns require a full EA/EIS
  • For NEPA-Related Appellate Court Cases:
    • Fuel-treatment projects that face legal challenges see an additional 1+ year of delay on average
    • Agencies prevail in 93% of NEPA fuel-reduction appeals, with 96% of these challenges brought by NGOs
    • An average of 3 years elapses between permit issuance and final resolution in these cases (Chiappa et al., 2024)

The Human and Environmental Costs

  • Forest density: Parts of the Sierra Nevada are now 6–7x denser than a century ago, fueling more intense megafires
  • GHG impacts: California’s 2020 wildfire emissions wiped out nearly two decades of the state’s greenhouse gas reduction progress
  • Species: Giant sequoias are dying in megafires; conifer forests are sometimes replaced by shrubland in the aftermath (Regan, 2025)

State-Level Barriers: CEQA and CalVTP

  • In 2020, California pledged to treat 500,000 acres per year by 2025—but remains far off due to lengthy reviews, public comment periods, and litigation (Regan, 2025)
  • California Vegetation Program aka CalVTP:
    • Projected 45,000 acres of treatments in the first year, but zero completed after 2+ years
    • 28,000 acres approved but not implemented
    • Project managers cite “unfamiliar and burdensome” documentation, multiple CalFire unit boundaries, and a pending lawsuit from the California Chaparral Institute and Endangered Habitats League (Friedman, 2022)
The CalVTP “fast-track” workflow

Recent Reform Efforts

  • California SB1159 (2024)
    • Would have exempted roadside vegetation clearing within 30 feet from CEQA
    • Died in committee
  • Federal TORCH Act
    • Would expand NEPA Categorical Exclusions for forest thinning and post-fire recovery, limit repeated ESA re-consultations for new species listings, and create larger “CLEAR Zones” for power line vegetation management (Regan, 2025)
    • Didn’t make it to the Senate floor
  • Fix Our Forests Act (2024)
    • Would expand NEPA Categorical Exclusions for certain forest management projects
    • Passed the House, didn’t make it through the Senate

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What are your thoughts?

Forest Service Categorical Exclusion 25

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Here’s where the list of CEs are for those curious. Somehow in all the discussion of Cat 6, I missed this one (which does have an acreage limit).

Update: It was one of the 2020 administrative CEs established based on the EADM effort via a rulemaking here.

On January 3, 2018, the USFS published in the Federal Register an Advance Notice of Proposed Rulemaking (83 FR 302) associated with the Agency’s Environmental Analysis and Decision Making (EADM) change effort. On June 13, 2019, the USFS published the proposed rule to update the Agency’s NEPA procedures, including several proposed CEs (80 FR 27544). In response to public comments on the proposed rule, some of the proposed CEs were modified or deleted. The CEs outlined in this document reflect those modifications and the CEs being established in the final rule.

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25) Forest and grassland management activities with a primary purpose of meeting restoration objectives or increasing resilience. Activities to improve ecosystem health, resilience, and other watershed and habitat conditions may not exceed 2,800 acres.
(i) Activities to meet restoration and resilience objectives may include, but are not limited to:
(A) Stream restoration, aquatic organism passage rehabilitation, or erosion control;
(B) Invasive species control and reestablishment of native
species;
(C) Prescribed burning;
(D) Reforestation;
(E) Road and/or trail decommissioning (system and non-system);
(F) Pruning;
(G) Vegetation thinning; and
(H) Timber harvesting.
(ii) The following requirements or limitations apply to this category:
(A) Projects shall be developed or refined through a collaborative process that includes multiple interested persons representing diverse interests;
(B) Vegetation thinning or timber harvesting activities shall be designed to achieve ecological restoration objectives, but shall not include salvage harvesting as defined in Agency
policy; and
(C) Construction and reconstruction of permanent roads is limited to 0.5 miles.
Construction of temporary roads is limited to 2.5 miles, and all temporary roads shall be decommissioned no later than 3 years after the date the project is completed. Projects may include repair and maintenance of NFS roads and trails to prevent or address resource impacts; repair and maintenance of NFS roads and trails is not subject to the above mileage limits.

Big FS Win! Ninth Circuit Upholds Category 6 Lack of Acreage Limitation; Builds on Previous Case

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Given the discussion about acreages in the Fix our Forests Act (I’ll continue the series; when I agreed to look at it I didn’t realize that it was the Mother of All Forest Bills), I thought this was weirdly timely, serendipitous, synchronistic or whatever..from AFRC yesterday.

Shout-out to the Fremont-Winema (who has a person answering the phone), the Region and WO, OGC and DOJ, for swinging for the stands! And it looks like, for the Bear Wallow Project, the Oregon Department of Forestry, and a  contract NEPA firm that deserves a shout-out as well.

I remember our view during my time period in NEPA was “don’t have too many acres as someone will litigate and we will lose the CE.” So it took some courage and good work all the way along to carry it through.  And of course, some luck (it’s a crapshoot, as my colleague JR used to say).

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For those of a political science bent, it is interesting that a policy that the Biden Admin apparently did not support in Congress (as to larger acreages) was supported by DOJ in defending the FS. I would guess the Admin didn’t have to appeal the lower court ruling, but did?  I wonder how all that worked between various parts of the Admin. Was the appeal horse out of the barn? Did DOJ not ask for permission from whomever??? If anyone knows, please email me. We are all curious about how our government works.

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Today the American Forest Resource Council (AFRC) announced a significant legal victory in the U.S. Court of Appeals for the Ninth Circuit concerning three critical forest management projects—Baby Bear, Bear Wallow, and South Warner—on the Fremont-Winema National Forest.

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.

However, the Ninth Circuit ruled that CE-6 contains no acreage limitation, affirming that the Forest Service appropriately applied CE-6 to improve forest stand conditions and wildlife habitat, in compliance with both federal law and NEPA regulations.

AFRC participated in the litigation as amicus, both at the district court and appellate levels.

“The Court reaffirmed that CE-6 can be used for projects of this scale, ensuring that vital forest management efforts can proceed without the unnecessary delays of extended environmental reviews. This ruling allows these projects to continue their important work in maintaining healthy forests and reducing the risk of catastrophic wildfires,” said AFRC General Counsel Sara Ghafouri.

The Court’s decision also follows precedent from the Mountain Communities for Fire Safety v. U.S. Forest Service case, which upheld CE-6 as applicable for timber stand improvements, reinforcing that commercial thinning and other forest health projects can be expedited under this exclusion.

The Baby Bear, Bear Wallow, and South Warner projects are essential to improving forest resilience and wildlife habitat across the Fremont-Winema National Forest. They allow for commercial thinning without herbicide use and with minimal road construction, all within the legal framework of CE-6. The ruling ensures that these projects will not face additional legal obstacles, paving the way for sustainable forest management practices to continue without delay.

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For those interested, here is some background on the Bear Wallow Project from the Oregon Department of Forestry.

The restoration prescriptions on the Bear Wallow Project will create openings by removing lodgepole pine and white fir from within 30 feet of mature ponderosa pines and 100 to 200 feet from aspen stands. The prescriptions will retain all trees 21 inches or greater in diameter those within a 75 feet buffer of streams.

Here’s how folks worked together and the history of the stands, it appears to be a GNA project.

CASE STUDY: The FFR Program and Bear Wallow Project Area The Bear Wallow Timber Stand and Wildlife Habitat Improvement Project is a forest restoration project on the Fremont Winema National Forest, just south of La Pine, Oregon, bordering the Gilchrist State Forest. Developed as a collaboration between the Fremont Winema National Forest, Oregon Department of Forestry, and the Klamath-Lake Forest Health Partnership, this project serves as an interesting example of the FFR Program’s use of the Good Neighbor Authority (GNA) to accelerate the pace and scale of restoration on federal forest lands.

During the 2019-2021 Oregon State Biennium, FFR Program involvement in Bear Wallow began with a Planning Assistance Categorical Exclusion (PACE) grant to invest $100,000 in contract NEPA planning in the Sugarpine project area. This resulted in two commercial restoration projects generating over $2.7M in revenue. The state then used this funding to accomplish additional non-commercial restoration within these project areas and to complete surveys and planning for two additional NEPA project areas: Bear Wallow and Sun Pass.

The Bear Wallow project comprises about 17,000 acres of National Forest, approximately 40 percent of which is former Industrial Timber lands, some of which were heavily logged prior to Forest Service acquisition from Shevlin-Hixon Lumber Company in 1943.  Fire suppression and the lack of other active management has resulted in dense mixed conifer encroachment (mainly lodgepole pine), raising fire hazard and creating competition with more desirable species, such as ponderosa pine and aspen.
The project intends to improve habitat for wildlife and increase wildfire resilience by thinning less-desirable trees. The restoration prescriptions on the Bear Wallow Project will create openings by removing lodgepole pine and white fir from within 30 feet of mature ponderosa pines and 100 to 200 feet from aspen stands. The prescriptions will retain all trees 21 inches or greater in diameter those within a 75 feet buffer of streams.

Conifer infill began soon after the historical logging of ponderosa pine in the Bear Wallow project area. As a result, many of the trees that require thinning are of commercially desirable size. Through the use of the GNA, the ODF’s FFR Program plans to advertise and administer commercial thinning projects within the project area. Recent FFR Program GNA commercial projects have been purchased by local businesses such as Gilchrist Forest Products LLC, which produce building materials from ponderosa and lodgepole pine. Revenue from these commercial sales will be directed toward additional restoration needs within the project area and potentially elsewhere on the Fremont Winema National Forest.

This looks like the bid request for the NEPA contract, apparently contracted through the State.

I have asked the Forest for a photo of the forest conditions described in the ODF writeup, so stay tuned on that.

Condition-Based NEPA: PERC Files Amicus Brief on Twisp Restoration Project

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PERC used this photo, I don’t know where it was taken.
Somehow I missed this until today. Our friends at PERC filed an amicus brief in this case.

I won’t let this opportunity go by without linking to the Forest Service’s own document describing CBM since they did such good work on it.

Anyway, back to PERC’s argument. If you go to the link above, you can find the full text of the amicus brief.

Summary of the Argument
Forests are not static but complex and living ecosystems. Planning for forest restoration must be equally dynamic and flexible. In this case, however, North Cascades Conservation Council (NCCC) seeks to impose unnecessary and impractical constraints on the Forest Service’s ability to restore forests while complying with NEPA.

NCCC challenges the Twisp Restoration Project, which would restore forest and watershed health, improve wildlife habitat (including for northern spotted owl, lynx, gray wolves, and mule deer), and reduce wildfire risks. NCCC objects to the Forest Service’s use of “condition-based management” to fit the projects’ restoration activities to forest conditions during implementation.

Under condition-based management, the agency authorizes restoration activities in an area but limits their implementation based on local, on-the-ground conditions. For instance, the Forest Service may authorize mechanical thinning to reduce insect and disease threats in an area vulnerable to such threats, but only allow it to go forward within a certain distance of an outbreak. Or it may authorize thinning to address overly dense forest conditions, but limit that activity to areas meeting conditions for slope, density, etc., and, within those areas, limit the extent of thinning based on the degree to which tree density departs from desired conditions. This allows the agency to document and understand the environmental impacts of its restoration work while narrowing implementation in light of on-the-ground conditions.

Condition-based management is “a method to meet NEPA’s requirements, not to avoid or shortcut them.” NCCC, however, asserts that this approach is never permissible under NEPA. Instead, it claims the Forest Service must predict exactly “which trees will be cut, how, [and] when,” which would demand of the Service an impracticable level of foresight that is contrary to this Court’s cases.

Forest conditions vary even within a single unit of analysis and, further, may change during the years that pass between an environmental analysis and on-the-ground work. Therefore, condition-based management provides necessary but limited flexibility to meet the Forest Service’s obligations to conserve forests while also complying with NEPA. The consequences of taking away this flexibility would extend far beyond this case, undermining the Forest Service’s ability to address an 80-million-acre backlog in forest restoration and tackle the wildfire crisis. The district court’s holding that condition-based management is a lawful way for the Forest Service to comply with NEPA should be affirmed

I didn’t read the brief, if anyone finds something interesting, please put it in the comments and we can discuss.

Bipartisan Policy Center’s Summary of Manchin-Barrasso Permitting Reform Bill: Some Provisions of Interest

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I promised to find a comprehensive description of the Manchin-Barrasso bipartisan permitting bill when the dust had settled and the permitting reform folks had time to analyze it.  The Bipartisan Policy Center does good work on permitting reform, and sure enough, they have a comprehensive report on it, helpfully titled “the Energy Permitting Reform Act of 2024: What’s in the Bill.”.

The Energy Permitting Reform Act of 2024 (EPRA) presents a crucial opportunity to accelerate and streamline the energy infrastructure permitting process that is vital for the U.S. to ensure affordable, reliable energy while reducing emissions.

As with all compromise bills, stakeholders will probably like many provisions but dislike others. Luckily for those on both sides of the aisle, the legislation has more to like than to dislike.

If you care about:

energy affordability and reliability, the leasing and transmission provisions will help achieve that
supply chains for clean technology, the mining provisions will help accomplish that
reducing emissions, the provisions on transmission, geothermal resources, and renewables, along with the categorical exclusions, will help with that
project certainty across the board, the judicial review provisions are important
This explainer summarizes the key provisions in the EPRA and contextualizes their importance.

There’s a great deal in the BPC report, including many details of interest to the FS and BLM. Folks may be interested in:

Judicial Review
Judicial review allows individuals and groups to legally challenge federal actions, including agency decisions on permits and siting under federal law. Under current law, aggrieved parties can file lawsuits for up to six years after an agency makes final permitting decisions on energy projects. This creates a legal limbo that drives up costs, even if developers ultimately prevail in the legal challenges, as is usually the case. Both fossil and renewable projects face these legal challenges; in fact, a recent study found that solar projects face the highest litigation rate. EPRA contains three major provisions concerning judicial review:

Reduced Statute of Limitations (Section 101): Reduces the deadline from six years to 150 days (five months) for filing lawsuits against an agency action approving or denying the permitting of an energy or mineral project. This change will help reduce uncertainty, so project developers know if they have a final yes or no to proceed. The tighter deadline is on the aggressive, but reasonable, side of what members of Congress have been considering. It is shorter than the two-year deadline that exists for transportation projects but longer than the 90-day deadline proposed in the GOP’s energy and permitting bill, H.R. 1, the Lower Energy Costs Act. That bill passed the House in 2023 in a 225-204 vote.
Deadline on Agency Remand (Section 101): Directs courts to set a time limit for an agency to act on a remand—when a court sends a decision back to an agency for further consideration or when a judge vacates a permit—not to exceed 180 days (six months). Federal agencies currently face no deadline to act, so this provision provides greater certainty.
Expedited Review (Section 101): Requires courts to prioritize cases reviewing an agency permitting decision for an energy or mineral project, moving the case up the docket.
Combined, these three judicial review provisions will modestly increase timeline certainty for energy and mineral projects. Broader changes concerning judicial review would fall under the jurisdiction of the Senate Environment and Public Works Committee rather than the Energy and Natural Resources Committee.

This bill is only for energy projects, but this intervention might be helpful for fuel treatment projects.

Deadline on Agency Remand (Section 101): Directs courts to set a time limit for an agency to act on a remand—when a court sends a decision back to an agency for further consideration or when a judge vacates a permit—not to exceed 180 days (six months). Federal agencies currently face no deadline to act, so this provision provides greater certainty.
Expedited Review (Section 101): Requires courts to prioritize cases reviewing an agency permitting decision for an energy or mineral project, moving the case up the docket.

I don’t know whether judges would go along with the expedited review.. seems sort of separation of powers-ish. But the Senate has access to many wise and knowledgeable attorneys so..

Combined, these three judicial review provisions will modestly increase timeline certainty for energy and mineral projects. Broader changes concerning judicial review would fall under the jurisdiction of the Senate Environment and Public Works Committee rather than the Energy and Natural Resources Committee.

I figured I’d pick out some new CEs envisioned by the bill.

Transmission CE

Categorical Exclusions for Certain Transmission Activities (Section 209): Directs DOI and the Department of Agriculture (USDA) to create new categorical exclusions for the following activities related to transmission: building transmission facilities within rights-of-way corridors; upgrades to existing transmission and grid infrastructure within rights-of-ways or on previously disturbed land; and deployment of energy storage technologies on previously disturbed lands. These categorical exclusions currently exist at DOE but not at DOI or USDA, which are more often responsible for reviewing projects in need of the exclusions. Sharing relevant categorical exclusions across agencies was a key recommendation in BPC’s Smarter, Cleaner, Faster Infrastructure Task Force Report, The Role of Categorical Exclusions in Achieving Net Zero.

Geothermal CE

Geothermal Categorical Exclusions (Section 208): Directs DOI and USDA to adopt categorical exclusions under NEPA for the exploration of geothermal resources on federal lands. This measure codifies and expands BLM’s recent actions and adds parity to oil and gas categorical exclusions in existing statute.

I thought this aside was interesting.

Some environmentalists will be concerned about the revised schedules for oil and gas leasing. It is important to note, however, that increased domestic oil production does not necessarily translate to increased global oil production, just as reduced domestic oil production does not necessarily lead to reduced global oil production. It is a global market, and other countries ramp production up or down in response to the basic economic law of supply and demand.

This seems like an important point that sometimes gets lost. We might expect this topic to heat up (again) as the election nears.

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

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Here’s the link to Hannah’s paper:

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

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

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

The Lawsuit

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

The Impact

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

Conclusion

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

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

(a) IN GENERAL .—A court shall not enjoin a fireshed3
management project if the court determines that the plain-4
tiff is unable to demonstrate that the claim of the plaintiff5
is likely to succeed on the merits.6
(b) BALANCING SHORT – AND LONG -TERM EFFECTS7
OF FIRESHED MANAGEMENT ACTIVITIES IN CONSID -8
ERING INJUNCTIVE RELIEF .—As part of its weighing the9
equities while considering any request for an injunction10
that applies to any agency action as part of a fireshed11
management project, the court reviewing the agency ac-12
tion shall balance the impact to the ecosystem likely af-13
fected by the fireshed management project of—14
(1) the short- and long-term effects of under-15
taking the agency action; against16
(2) the short- and long-term effects of not un-17
dertaking the action.18
(c) LIMITATIONS FOR INJUNCTIVE RELIEF AND RE -19
MAND .—20
(1) IN GENERAL .—Notwithstanding any other21
provision of law, a court shall not vacate or other-22
wise limit, delay, stay, or enjoin a fireshed manage-23
ment project unless the court determines that—24
36
(A) the fireshed management project will1
pose a risk of a proximate and substantial envi-2
ronmental harm; and3
(B) there is no other equitable remedy4
available as a matter of law.5
(2) R EMAND .—6
(A) IN GENERAL .—Notwithstanding any7
other provision of law, if a court determines8
that a fireshed management project will not9
pose a risk of a proximate and substantial envi-10
ronmental harm—11
(i) the court may remand the fireshed12
management project to the applicable13
agency with instruction to correct (includ-14
ing specific directions) the errors or defi-15
ciencies within 180 days; and16
(ii) an activity under the fireshed17
management project may be carried out so18
long as such activity does not affect the er-19
rors or deficiencies described in clause (i).20
(B) REVIEW .—Unless the court finds that21
the applicable agency entirely failed to prepare22
a required environmental assessment or envi-23
ronmental impact statement, on remand—24
37
(i) the court shall not require such1
agency to prepare a new environmental as-2
sessment or environmental impact state-3
ment; and4
(ii) such agency may use another for-5
mat, including a memorandum or errata6
sheet, to document any new analysis re-7
quired.8
(d) LIMITATIONS ON CLAIMS .—Notwithstanding any9
other provision of law, a claim arising under Federal law10
seeking judicial review of a fireshed management project11
shall be barred unless—12
(1) with respect to an agency document noticed13
in the Federal Register, such claim is filed not later14
than 120 days after the date of publication of a no-15
tice in the Federal Register of agency intent to carry16
out the fireshed management project, unless a short-17
er period is specified in such Federal law;18
(2) in the case of an agency document not de-19
scribed in paragraph (1), such claim is filed not20
later than 120 days after the date that is the earlier21
of—22
(A) the date on which such agency docu-23
ment is published; and24
(B) the date on which such agency docu-1
ment is noticed; and2
(3) in the case of an authorization or action for3
which there was a public comment period, such4
claim—5
(A) is filed by a party that—6
(i) participated in the administrative7
proceedings regarding such fireshed man-8
agement project; and9
(ii) submitted a comment during such10
public comment period and such comment11
was sufficiently detailed to put the applica-12
ble agency on notice of the issue upon13
which the party seeks judicial review; and14
(B) is related to such comment.15
(e) DEFINITIONS .—In this section:16
(1) AGENCY DOCUMENT .—The term ‘‘agency17
document’’ means, with respect to a fireshed man-18
agement project, a record of decision, categorical ex-19
clusion, environmental document, or programmatic20
environmental document.21
(2) NEPA TERMS .—The terms ‘‘categorical ex-22
clusion’’, ‘‘environmental document’’, and ‘‘pro-23
grammatic environmental document’’ have the mean-24
ings given such terms, respectively, in section 111 of
the National Environmental Policy Act of 1969 (421
U.S.C. 4336e).

CBD FOIA Finds BLMers Disagree About Lithium Mine Analysis Process

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

 

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

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

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

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

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

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

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

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

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

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

Distel’s email illuminates the tensions.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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