NEPA

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.

Science Friday: Research on EAs vs. EIS’s, Mortimer et al. 2011

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We haven’t come back to Ryan Sabelow’s  question for a while.  He said

“I would love to see the results of a survey of district rangers, local forest NEPA people and biologists on the challenges of doing this work on a landscape level.”

Certainly there are plenty of financial and organizational challenges, as have been studied.  But specifically about NEPA, the closest I could find was this Mortimer et al. paper from the Journal of Forestry in 2011, funded and developed through the NEPA for the 21st Century research project. There’s a great deal of interesting information in this short paper. I think it would be helpful for practitioners today to engage with this paper and its findings.

Let’s look at the methods first.

This article is an amalgam of three related research efforts, each with its own methodological approach. The first was a qualitative pilot study relying on primary environmental document analysis and subsequent in-depth personal interviews with 25 respondents in the US Forest Service (n = 8), the National Park Service (n = 6), the Bureau of Land Management (n = 9); and the US Army Corps of Engineers (n =2) in the winter of 2006-2007.

These numbers seem low (though I’m not a social scientist) and this was a while (15 years) ago.

On Mar. 20, 2008 an invitation to participate in an online survey was sent to all identifiable ID team leaders of recreation-related NEPA processes within the US Forest Service involving the issuance of an EA or EIS between December 2005 and March 2008.

Why recreation projects? The authors have a variety of reasons, including the importance of travel management at that time. Still, I would have selected vegetation management projects.

As such, these projects typify the complexities of many other types of projects involving multiple stakeholders and are squarely within the dominant paradigm of multiple uses of the national forests.

The third study analyzed all federal court cases filed from Jan. 1, 1989 to Dec. 31, 2006, in which the US Forest Service was a defendant in a lawsuit challenging a “land-management” decision.

The authors focused on wins and losses on the NEPA claims.

Here are some quotes:

The interviewees presented several themes for preferring an EIS over an EA that went beyond the considerations outlined in the CEQ regulations: [4J
• The threat of litigation and the ability to withstand legal challenges:
“Our solicitors push us to, they would much prefer us to do an EIS because it’s easier to defend in court.”
“The decision with sometimes doing an EIS is whether it’s going to litigation or not …”
• The desire or ability to incur or demonstrate significant environmental impacts on the landscape with an E1S:
“If you really want me to have an EIS, then I’m going to go for the gusto and have some significant impacts.”
“We had no idea what the outcome was going to be, hut with an EI5 you can have a significant effect. And we wanted to have a significant effect on the landscape.”
• The level of public controversy:
“If you have more than a 30% suspicion that if you try to go the EA route someone is going to stop you or threaten to sue you, you’re better to … put your NOI out and circulate a draft EIS.”

I’m not sure that the above is still true, but it was in my day. In fact, we often have the “they should have done an EIS discussion” here on TSW.

Here’s what they came up with numerically:

Possibly discussion-worthy parts of the conclusions..

On the other hand, excessive analyses have delayed critical decisions and commonly produce unintelligible documents of little usefulness to any audience, which may often obfuscate rather than disclose or clarify agency decision making processes (Sullivan et al. 1996, US Forest Service 2002, Stern and Mortimer 2009). Our  study suggests that a more detailed understanding of how ecological risks and social risks influence agency environmental analyses could further illustrate the extent to which process risk aversion influences the achievement of the intents of the NEPA and agency objectives concerning land management.

And:

Any assessment of risk particular to litigation and the NEPA process is inherently subjective and uncertain. For example, our findings contradict the prevailing wisdom among agency respondents that an EIS is more legally robust than an EA and, therefore, preferred when litigation over a project is expected. Although we focused specifically on travel management projects, data suggest that at a broader scale the pattern of document defensibility is similar (Table 7). As such, each of these behaviors may be contributing to the well-accepted notion that the agency’s resource management obligations have been compromised by excessive an.d unnecessary analysis (US Forest Service 2002) in efforts to strengthen certain areas of the NEPA document and the administrative record.

A point I would have made, had I reviewed this paper, is that there are other key actors that have a role in the EA/EIS decision; those being OGC for USDA or Solicitors from BLM.  This is difficult, as with so many aspects of litigation, I’m not sure they are allowed to participate in surveys (?).  It doesn’t really help to tell FS NEPA practitioners what the “data show” if the folks who need to be convinced are the in-house counsel.  I would be very interested in hearing from those retirees; so far my efforts to rope them in to these discussions have been unsuccessful.

Our Joint NEPA Study III: Introducing the “Index of Annoyance”

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We had a number of good ideas for research topics discussed earlier this week.  I’m going to post some research that’s been done, and some of my own ideas and experiences. TSW readers are encouraged to submit posts either with your own ideas or research you consider relevant.  These may serve to generate more ideas and/or to hone the ones you already have.

Unusually enough, we actually had a question by a journalist Ryan Sabelow, reporter for the Sacramento Bee on Twitter. I removed some language.

As to Ryan’s point, there have been some studies along the lines he suggests, including budget and staffing, and I’ll talk about one in the next post on this.

Still, Ryan’s friend was expressing something… litigation has an impact, that is commonly believed among many Forest Service folks,  but has not been shown in the relevant literature. So there’s a gap between academia (and others) and practitioners. It’s not the academics’ fault.. it’s our own fault, in my view,  for not explaining our point of view better. Of course, it’s awkward or impossible to do that in public without being retired (except if you’re anonymous), so there’s that.

The tweet from Ryan’s friend reminded me of a conversation I had about 10-15 years ago with Denise Keele, who had co-authored a NEPA litigation paper, which also concluded … everything is fine. I was joking when I said “let’s develop an index of annoyance..talk to practitioners about what factors about litigation they find irritating, and develop a score for each project. Perhaps people could get extra pay for working on projects with a high projected annoyance score?”  Now I think perhaps even describing annoyance factors will help to bridge the gap.  I have some that I have written about, and more that I will add, and others are welcome to add theirs via post or comment.

I’ll give an important caveat here. Of course, litigation has an important place in the public policy ecosystem. Agencies need to follow the law.  Sometimes Agencies screw up and their shortcomings need to be brought to light.  Litigation can be a way to achieve these goals outside the political process.  But with the need (not agreed to by everyone) to build renewable energy projects in certain places, and to help protect communities from fire (not agreed to by everyone) in other places,  it seems like it’s a good time to talk about how this way of achieving goals is working to all parties involved.

Even talking about the landscape of litigation, from the FS practitioner’s point of view, can be uncomfortable outside the office (thank you, Ryan’s friend, and Ryan, for sharing this).  FS folks generally don’t want to be offensive, and realize that litigation is part of the government system that we pledged to uphold.  Plus whining or complaining is not always a preferred cultural norm. At the same time, I think it’s important to hear the FS employees and stakeholders’ side of the story (as well as the perspective of litigants, of course!).

So my idea is to help others understand how different kinds and approaches to litigation may impact FS people, the NEPA process, and stakeholders involved in projects.  There may be some value in simply airing frustrations; but certainly it will help  folks like Forrest and Ryan understand some of the complexities.  Both things are true: (1) generally NEPA works well and (2) in some cases it’s frustrating.

The end result might be- besides mutual understanding- a paper that academics can cite, e.g.,  (TSW et al. 2023) “litigation of projects can have perceived negative impacts on employees and stakeholders.  These include both short-term impacts during the litigation process, and long-term adaptive impacts as litigation and agency decision-making co-evolve.”

 

Cooperating Agencies, the CEQ Report and the BLM Desk Guide

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Jim Furnish made an interesting comment about cooperating agencies here.

Beware of monkey wrenching! Cooperating agency status is generally reserved for other federal agencies, and is ALWAYS discretionary. I recall when numerous western states pursued “Coop” on the Roadless rule, I asked them why. MT rep stated “We want to stop the process” – TRUE! We said “No. Thank you, but no.” Given the nature of planning efforts, counties may not be trying to make the process smoother and outcomes better for all. There are other ways to assure their voice is heard.

Meanwhile, my own experience with NEPA in the WO was that CEQ encouraged agencies to have cooperating agency relationships, in fact, there seemed to be a report required that counted them all for all the agencies, federal, state and local. As CEQ says on its website

To ensure that Federal agencies are actively considering designation of Federal and non-Federal cooperating agencies in the preparation of NEPA analyses and documentation, CEQ requests annual agency reports on cooperating agency status.

Except, they don’t appear to be annual reports, at least not on this website. The last one was 2016.

Well, one of my favorite documents about Cooperating Agency status has always been the BLM Deskguide, which was updated in 2012. I’d like to give a special shout-out here to the authors of this helpful document.

****************************
3 Section 1. Introduction

In any Federal undertaking, harmonizing national, regional, and local governance entails at least three key tasks. As Matthew McKinney and William Harmon noted in The Western Confluence: A Guide to Governing Natural Resources (2004), these include integrating the involvement of multiple parties with competing interests and values, removing obstacles to sharing and validating relevant
information, and resolving conflicts among institutions and policies.

• Multiple Parties. State, local, and tribal government officials are often in a better position than are Federal land managers to engage the communities and interest groups most likely to be affected by a plan or proposed activity.

• Complex Information. Effective discussion between Federal agencies and the public is often blocked by deeply incompatible views of the “facts” regarding current environmental and socioeconomic
conditions as well as the effects that a proposed plan or activity may have on these conditions. Resolution of these incompatibilities often requires the lead agency and CA partners to engage in
joint fact-finding and to seek agreement on where to find valid information and how to interpret it.

• Conflicting Policies and Institutions. The challenge of managing public lands can reveal significant disagreements in jurisdictions and mandates, not only among Federal, State, local, and tribal
governments but also among different Federal or State agencies. The CA relationship offers a forum in which to discuss and, if possible, reconcile divergent policies and plans for the common good.
Although challenging, intergovernmental cooperation in the management of lands and resources can yield great benefits for the public. The CA relationship is one tool among many that can advance collective efforts among government partners. Each party may have some lessons to learn—and some practices to unlearn.

Common Characteristics of Western Resource Disputes
Multiple Parties
• Clash of values
• Competing interests
• Complicated relationships
• Varying types and levels of power

Complex Information
• Lack of information
• Misinformation
• Different views on what information is relevant
• Different procedures to collect and assess data
• Different interpretation of data
• Different levels of comfort with risk and uncertainty

A Briar Patch of Policies and Institutions
• Multiple jurisdictions
• Competing missions and mandates
• Lack of meaningful public participation
• Multiple opportunities for appeal
• A fundamental question of who should decide
From The Western Confluence: A Guide to Governing Natural Resources, by Matthew McKinney and William Harmon. Copyright 2004 by the authors. Reproduced by permission of Island Press, Washington, DC.

Experience has shown that there are three primary lessons that can lead to success when working across government boundaries. They are:
1. Federal, State, local, and tribal partners need to recognize that the CA relationship is a forum for sharing information and expertise, not for asserting authority. Engaging in a CA relationship neither augments nor diminishes an entity’s jurisdiction and authority. However, mutual respect for each agency’s authority and jurisdiction is critical.

2. BLM managers and staff should acknowledge that the CA relationship requires new ways of doing business. Engaging with government partners as CAs is a unique form of consultation.
Cooperating agencies expect, and should be given, a significant role (commensurate with available time and knowledge) in shaping plans and environmental analyses—instead of merely commenting
on them.

3. All parties will find the CA relationship most productive when they emphasize mutual, rather than individual, gains and seek solutions that meet others’ needs as well as their own.
Working with other government officials through the CA relationship makes better outcomes more likely and can establish a foundation for long-term cooperation that benefits all partners

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Meanwhile as we talked about in this court decision about the southern California plans, the court said

“The results of the Forest Service’s review of state input should have been displayed in the FEIS, even if part of the discussion would have consisted of noting that the State had not fully engaged in the process established by the 2005 State Petitions Rule, the lawful process at the time.The failure to provide any discussion of input from the State, or at least of the State’s failure to fully engage in the planning process, was a violation of the NFMA. This is more than a merely technical violation, as it significantly inhibits the public’s ability to understand the competing priorities of the Forest Service and the State.”

Let’s Co-Design and Co-Produce a NEPA Study! II. What Are Your Questions?

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Forrest asked the question yesterday , “how can a research project be designed to provide input that might actually be used in a productive way by the agency.  Perhaps co-production is part of the answer to that, but there might be other factors (e.g. perhaps we should focus on some variables that are more amenable to change?).”

My thoughts on that are we have more than 100 years of land grant institution experience about how to link users and producers of knowledge.  Researchers need to be in dialogue with practitioners and understand their needs. I’ve found this to vary by type of school (land grant or liberal arts), the specific school and sub-school culture, discipline and individual professor’s interests (and their kind of appointment, research, teaching and extension percentages).  Plus of course what there is research funding for.  Which is a whole other study that could be done: Factors that Influence Faculty/Practitioner Interaction. To get at that, we could take the forest-related faculty at a variety of schools and survey to what extent they interact with people in practice.. and through what virtual or physical places, meetings, whatever.  I remember a prof at Oregon State (was it Tom Adams?) saying he learned as much from teaching at Silviculture Institute as he taught (or maybe it was CEFES).   But I digress.

Anyway, in terms of questions, it’s  OK to be simply curious but also OK to be focused on practical outcomes.  So in the broadest context of the “NEPA” ecosystem (NEPA-system) we have these actors:

Directly Involved:

Forest Service- line officers, NEPA folks, specialists

Parties Who Want to Do/Benefit From Projects-  communities, industries (recreation, powerlines, etc.), wildlife interests and so on

Parties Who Do Not Want or Want to Change Projects – ENGOs  and/or local groups of various kinds, with or without legal representation

OGC

DOJ

Judges

Observing:

Media

Politicians

Researchers

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What questions do you have about anything within the NEPA-system?

Here’s one example, if you’re the kind of person who needs ticklers… like me.  Chief Moore mentioned in his talk at SAF that he thought BLM in some cases, was more efficient with NEPA (can’t remember his exact words off the top of my head).  That would bring up the question for me.. what would we find out if we surveyed a bunch of bi-agency folks (with experience in NEPA in both agencies) on the topic of “what works best for one that the other agency might try?”.

If you can’t think of any right now, please feel free to come back to this thread as we discuss more and put your questions (and proposed ways of getting at them, if you’d like) in the comments.