NEPA

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.

Let’s Co-Design and Co-Produce a NEPA Study! I. The Back and Forth of NEPA Papers in Journal of Forestry

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If you spend as much time online, reading news, etc. as I do to find juicy (relatively) tidbits for The Smokey Wire, you’ll notice many people talking past each other. I think part of that is just because there are few containers (I think that’s what they call them nowadays) that foster dialogue. I think we’ve got a terrific example to explore with the Fleischman et al. NEPA paper back and forth in the Journal of Forestry.

Anonymous posted this yesterday as a comment.

A said: “much boils down to talking past one another, (who said who said what about the relative formality of a hypothesis), ultimately disappointing in that regard.”

Anonymous found this new paper.. remember this journal article? and this response (r1) to the article (also Matthew published another response post here?)  Well this is the response to the response (r2).  The paper is attached here.NEPA article R2 and can be found online here.

FWIW, in this case, I don’t think it’s about the data, but about the claims in the first paper. If the original reviewers had pointed out that some of the claims were far beyond the data, then I think the second paper wouldn’t have been written. Here’s what Anonymous said:

“our paper tested no hypotheses” but it implied several that the other authors attempted to systematically test which they clearly stated, with the upshot being that the conclusions made needed formal hypothesis testing to match the strength of the claim

“our paper made no causal claims” but it clearly speculated about causes and the necessity for revising regulations, so is it not appropriate for someone to test those claims more formally?

Will be interesting to see a response to the response to the response. Really seems like the response to the response is to claim “not applicable!” whereas the intent of the original response was to question not the study as a whole but specifically the final conclusions drawn from it as resting more conclusions on the data than it can support

final note – it seems that the “response to the response” shifts the ground a little bit by claiming much more modest conclusions for the original study than that study itself made. the original article did indeed provide valuable trend data and kick off the conversation about what works and what doesn’t in an interesting direction, but it also claimed to reach conclusions about the role of CEs vs. EAs vs. EISs, conclusions about what to make of the relative abundance of litigation, and even further claims about the merits of policy change. the response to the response doesn’t really touch on these more ambitious claims. you can couch that as speculation all you like, but it doesn’t make the claim off limits for further evaluation.

general question on examples cited ; is it in any way historically demonstrable that NEPA-mandated public involvement led to the change of the 10am policy or allowable cut measures – inclined to think not, unless you collapse wildly divergent histories into something which NEPA can take credit for, somehow, and ignore NFMA)

Here’s the last paragraph of R2:

Ultimately, public comment periods, scientific analysis, and land management activities are tools the agency uses to achieve its goals of managing land in the public interest. Much like a fuels treatment, NEPA has costs as well as benefits, and a deeper understanding of what those costs are and how they can be minimized relative to their benefits would help the agency use the NEPA process more effectively. Although neither our analysis nor Morgan et al.’s directly addresses this big question, both of our analyses point to high levels of variability within the agency in terms of how NEPA is carried out. We suggest, as we did in our original article, that studying this variability may help the agency understand what works well, and what doesn’t, in the NEPA process.

Let’s compare this with what the original article said:

There has been much public debate on how the US Forest Service (USFS) can better fulfill its National Environmental Policy Act (NEPA) obligations, including currently proposed rule-making by the agency and the Council on Environmental Quality; however, this debate has not been informed by systematic data on the agency’s NEPA processes. In contrast to recently publicized concerns about indeterminable delays caused by NEPA, our research finds that the vast majority of NEPA projects are processed quickly using existing legal authorities (i.e., Categorical Exclusions and Environmental Assessments) and that the USFS processes environmental impact statements faster than any other agency with a significant NEPA workload. However, wide variations between management units within the agency suggest that lessons could be learned through more careful study of how individual units manage their NEPA workload more or less successfully, as well as through exchanges among managers to communicate best practices. Of much greater concern is the dramatic decline in the number of NEPA analyses conducted by the agency, a decline that has continued through three presidential administrations and is not clearly related to any change in NEPA policy. This may suggest that USFS no longer has the resources to conduct routine land-management activities.

But then there’s alo the title to the original article: “US Forest Service Implementation of the National Environmental Policy Act: Fast, Variable, Rarely Litigated, and Declining.” Which seems like something of a stretch. But that’s fairly normal in today’s world.

Here are my claims to knowledge- I was the WO NEPA Assistant Director for both Process Predicament, and for the initiation of the PALS database. Practitioners have always known that some project NEPA takes longer than others; and that some of the variation is due to intrinsic tendencies of the unit (or that specific ID team), some due to the nature of the project (and the perceived need for bullet-proofing), some due to what the unit considers appropriate ways of dealing with a variety of public concerns, some due to changes of personnel, and some due to the perceived urgency of the project and its relationship to other possibly more urgent projects. All these things are known variables, and have been described at the EADM workshops by stakeholders, if nowhere else. Then there’s internal strategizing about size and content of NEPA- Queen Mary vs. flotilla of small boats, and so on.

I don’t think the PALs database can tell us about those.. you need qualitative research (aka interviews) to explore those further. As Fred Norbury, the former EMC director used to say, “we treat NEPA as a cobbler shop run by each unit, when it would be more efficient as a NIKE factory.” However, as you may recall, efforts to centralize ran into obstacles in FS culture. My point being that I think we could get much further if we (1) pooled our academic and practitioner knowledge, (2) reviewed existing sources of information, and 3) jointly determined what questions are interesting and could be addressed best by which available analytic tools. Otherwise known as co-design and co-production of knowledge. I think we should try it for this example, with the ultimate goal of applying for a grant from NSF or NIFA, perhaps combining scientists from both studies as well as practitioners. Anyway, we’ll start tomorrow with “What are the questions we could jointly study?” “what benefits might accrue from obtaining the answers?”

Upcoming public lands regulatory actions

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On December 10, 2021, the Biden Administration released the Fall 2021 Unified Agenda of Regulatory and Deregulatory Actions, which is a semi-annual compilation of information concerning regulations and policy under development by federal agencies.  I’ve pulled out the Forest Service and BLM entries below.

This link was provided in this blog post focused primarily on the Endangered Species Act and “the regulated community” (and on undoing Trump administration regulatory changes).  The one individual species proposal that may affect (eastern) national forests concerns the northern long-eared bat, and possible critical habitat designation (it is currently listed as threatened).  It also notes proposed rules by the Council on Environmental Quality revising National Environmental Policy Act implementing regulations (targeting climate change).

USDA/FSProposed Rule StageSpecial Uses–Cost Recovery0596-AD35
USDA/FSProposed Rule StageCommunications Uses–Programmatic Administrative Fee0596-AD44
USDA/FSProposed Rule StageLaw Enforcement; Orders; Enforcement of Public Health and Safety Measures0596-AD50
USDA/FSProposed Rule StageAlaska Roadless Rule Revision0596-AD51
USDA/FSProposed Rule StageChattooga Wild and Scenic River0596-AD52
USDA/FSProposed Rule StageWeeks Act Reviews0596-AD53
USDA/FSFinal Rule StageRange Management–Excess Use/Unauthorized Use0596-AD45
DOI/BLMProposed Rule StageRights-of-Way for Communications Including Broadband1004-AE60
DOI/BLMProposed Rule StageBonding1004-AE68
DOI/BLMProposed Rule StageRights-of-Way, Leasing and Operations for Renewable Energy and Transmission Lines1004-AE78
DOI/BLMProposed Rule StageWaste Prevention, Production Subject to Royalties, and Resource Conservation1004-AE79
DOI/BLMProposed Rule StageRevision of Existing Regulations Pertaining to Fossil Fuel Leases and Leasing Process 43 CFR Parts 3100 and 34001004-AE80
DOI/BLMProposed Rule StagePart 4100-Grazing Administration-Exclusive of Alaska1004-AE82
DOI/BLMProposed Rule StageRegulations for the Protection, Management, and Control of Wild Horses and Burros1004-AE83
DOI/BLMProposed Rule StageRegulations Pertaining to Leasing and Operations for Geothermal1004-AE84
DOI/BLMFinal Rule StageMinerals Management: Adjustment of Cost Recovery Fees1004-AE81
DOI/BLMFinal Rule StageOnshore Oil and Gas Operations-Annual Civil Penalties Inflation Adjustments1004-AE85

More Info on Infrastructure Bill: Pollack and Fite on the Emergency Action Authority

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Previously, we had wondered a bit about the Emergency Action Authority and its implications.  Here is one take from Marten Law’s analysis.

The IIJA establishes a new statutory categorical exclusion (“CE”) from NEPA for fuel breaks.[xvii] A statutory CE altogether exempts projects meeting the statutory CE’s requirements from NEPA’s environmental analysis requirements.[xviii] This new fuel break CE applies to fuel break projects up to 1000 feet wide and encompassing up to 3000 acres. It also applies to lands administered by either the Forest Service or the Bureau of Land Management. As agencies continue to confront increased wildfire risks, this will provide a secure and timely path forward for fuel break projects that are needed to facilitate effective wildland firefighting.[xix]

The Act also establishes new “emergency action” authority to “mitigate the harm to life, property, or important natural or cultural resources on National Forest System land or adjacent land.”[xx] The Secretary of Agriculture can use this emergency authority to address a wide range of needs, including salvage of dead or dying trees, harvest of frost or wind-damaged trees, the commercial and noncommercial sanitation harvest of trees to control insects or disease (including trees already infested with insects or disease), the removal of hazardous trees in close proximity to roads and trails, the removal of hazardous fuels, replanting or reforesting of fire-impacted areas, restoration of water resources or infrastructure, and reconstruction of utility lines and underground cables, over up to 10,000 acres.

The emergency action authority has two major litigation implications. First, it limits the NEPA analysis required for any qualifying project. The Environmental Assessment or Environmental Impact Statement need only consider the alternatives of action or no action rather than a range of alternative actions. That change eliminates a potent argument that challengers use in NEPA cases.[xxi] Second, a court may only enjoin an emergency action project if the plaintiff shows it is “likely to succeed on the merits.” This in effect abrogates the “serious questions” or “sliding scale” standard that the Ninth Circuit applies when analyzing whether to issue an injunction.[xxii] That change would make injunctions significantly less likely for emergency action projects, particularly in western states within the Ninth Circuit. In concert, these two policy changes may streamline projects that previously would have been delayed by litigation.

According to these authors, the new emergency action authority would affect how many alternatives are needed (and possible ensuing litigation about specific ones that weren’t analyzed) (as we had previously discussed), but these authors bring up the 9th Circuit  “serious questions” or “sliding scale” standard.

Permitting, NEPA and Litigation Tweaks in the Infrastructure Bill

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I didn’t see any others in the bill other than the four below that relate to forest and federal lands activities. However, that’s not to say that this list is complete.

 

Sec 40806 CE for Fuel Breaks

Establishes a Categorical Exclusion for fuel breaks up to 1,000 feet in width, not more than 3,000 acres of treatments and located primarily in — the wildland-urban interface or a public drinking water source area; if located outside the wildland-urban interface or a public drinking water source area, an area within Condition Class 2 or 3 in Fire Regime Group I, II, or III that contains very high wildfire hazard potential; or an insect or disease area designated by the Secretary concerned as of the date of enactment of this Act.

As we’ve discussed, as a veteran of developing administrative Categorical Exclusions (and seeing them lost in court cases for reasons that seemed a bit random to me), I’m a fan of legislated ones. I didn’t find the definition of “public drinking water source area” in the bill, but perhaps it’s an EPA term?

Sec  40807 Emergency Actions

Establishes  a new statutory tool (separate from and in addition to the agency’s administrative emergency situation determination process) that authorizes the Secretary to determine that an emergency situation exists on National Forest System lands and allows treatment to be carried out pursuant to the Secretary’s emergency situation determination.  If the Secretary determines that an authorized emergency action requires an environmental assessment or an environmental impact statement the Secretary shall study, develop, and describe only—(A) the proposed agency action; and (B) the alternative of no action.  Requires the opportunity for public comment during the preparation of both environmental assessments and environmental impact statements for authorized emergency actions. Actions under this section are not subject to the objection process and a court shall not enjoin an authorized emergency action under this section if the court determines that the plaintiff is unable to demonstrate that the claim of the plaintiff is likely to succeed on the merits.

I haven’t really understood the ins and outs of ESD’s in the first place, so I don’t know how this “new statutory tool” would relate, perhaps someone else can explain?  It seems like it would streamline any required EA or EIS by requiring only one alternative and no objections.   I also don’t know about the test for enjoining and how different that is from current practice.

Here are some more infrastructure-y tweaks:

Transportation Projects.  Sec 11311. Efficient Implementation of NEPA for Federal Land Management Projects.

Allows Federal land management agencies to adopt environmental review documents prepared by the Federal Highway Administration (FHA) for certain transportation projects if the document addresses all areas of analysis required by the land management agency. Allows Federal land management agencies to use environmental documents previously prepared by FHA for projects addressing the same or substantially the same action. Under certain circumstances, allows Federal land management agencies to use Categorical Exclusions established by the FHA.

Critical Minerals .

Requires BLM and Forest Service to complete the Federal permitting and review processes with maximum efficiency and effectiveness while supporting economic growth. Requires DOI and USDA to provide a report that identifies measures that would increase the timeliness of permitting activities for the exploration of domestic critical minerals (among other requirements). After submission of the report, DOI  and USDA are required to develop and publish a performance metric for evaluating progress to expedite permitting for exploration.

(this doesn’t itself tweak NEPA practices, but could potentially lead to some recommended tweaks in the future; similar to the Wildfire Commission.)

 

Mendocino Forest-Wide Prescribed Fire and Fuels EA

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Apparently 89% of the Mendocino National Forest has been burned over in recent fires. This struck me as a pretty impressive statistic.

They have come up with a forest-wide condition-based management approach to prescribed fire and fuel treatment via an EA (outside of Wilderness).  What I think is interesting is that the proposed alternative seems to neatly avoid  issues around “logging” and whether fuel treatments are really about timber production.. by simply not selling or moving any material offsite as part of using this EA. Seems pretty innovative to me.. what do you all think?

Here’s the description of alternative 2, the proposed alternative.

Hand Thinning & Limbing Trees to Raise Canopy Base Height
In areas where specialists determine that fuel loading and/or stand structure is such that prescribed fire behavior might exceed acceptable thresholds and pose a risk to prescriptive objectives and/or WUI and highly valued resources, prescribed fire alone will not be the sole source of treatment. In these situations, hand thinning and limbing trees using chainsaws or other tools may occur prior to prescribed burning, to reduce ladder fuels and associated potential for crown fire initiation and spread. Resulting slash may be scattered or left in place to assist understory fire spread. When prescribed fire is unlikely to consume most residual slash or would result in undesired fire effects, some or all thinned vegetation may be piled and burned on site.

Prescribed Fire Control Lines
Existing features such as roads, trails, rock outcrops, or existing fuelbreaks will be used for fire control lines where possible. Where existing control lines are absent, firelines will be constructed to facilitate broadcast burning and hand piling burning operations. Fireline construction will also be used for the protection of cultural sites, sensitive resources, administrative sites, infrastructure or private property, and other features as needed. Firelines will be constructed by hand. If ground disturbing mechanical methods are necessary, additional National Environmental Policy Act analysis may be required. The amount of fireline construction will vary depending on the size of the burn area and existing conditions.

They also have an alternative 3:

Prescribed Fire and Mechanical Treatments Alternative
In addition to the Proposed Action, the MNF would like to consider an alternative that utilizes both the use of prescribed fire and mechanical treatments to reduce fuel loads and modify fuel structure. In some places and under some conditions it may be too difficult to safely use prescribed burning and inefficient to hand-thin dense stands of small trees. This is where the mechanical treatment of hazardous fuels can be a valuable tool. Similar to hand thinning in the Proposed Action, mechanical treatments would be used to mulch or remove trees less than 14 inches in diameter, and understory shrubs. The resulting mulch could either be used as a pre-treatment for prescribed fire or left alone where conditions meet the purpose and need.
Mechanical treatments would include but not be limited to the use of equipment such as masticators and feller-bunchers. Equipment is generally limited to slopes less than 45% and would operate on top of generated slash and mulch without the need of skid trails. Material could be removed off-site for biomass operations if existing landings and roads provide adequate access.
No roads or landings would be constructed as part of this alternative.

Here’s a link.