NEPA

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.

WaPo Story on Gain of Function Research: Lessons the Forest Community Could Teach NIH

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One of the shortest efforts I was involved with in my career was to work on “how NEPA applies to R&D conducted by USDA through grants.” In my case, it was genetically engineered organisms and concern about their release into the environment. The answer, I was told, was that they wouldn’t get out, so no problem, no NEPA. But that was decades ago.

I thought the Washington Post has done a good job of reporting here on the details of how gain of function experiments and other potentially dangerous experiments have been approved.   Hopefully there is no firewall.  What does this have to do with the federal lands/forest biz, might you say?  It just seems to me if you need public involvement and environmental analysis for a 300 acre fuel reduction project, maybe you need the same kind or more for projects involving biosafety concerns?

If you need third party independent certification to make sure your wood has been sustainably produced.. maybe you should have the same (independent certification) procedures for labs, perhaps international like PEFC or FSC?  And if your argument why not is that it could be dangerous if you made the information public, maybe that’s a scientific/public policy situation that shouts “watch out.” And needs greater attention and scrutiny. hat’s conceptually, and then there’s the legal question of how or if NEPA applies.

I hope you can read the whole WaPo story, as it gives a history of how gain of function research has been managed.

Lisa Monaco, Obama’s deputy national security adviser, and John Holdren, director of the White House Office of Science and Technology Policy, urged all federal and nonfederal labs on Aug. 28, 2014, to conduct a “Safety Stand-Down” to “review laboratory biosafety and biosecurity best practices and protocols.”

In mid-October — citing the “recent biosafety incidents at Federal research facilities” — the Office of Science and Technology Policy and HHS jointly announced a “pause” in funding for any newly proposed gain-of-function experiments with influenza and the feared coronavirus strains MERS and SARS.

The announcement also encouraged “those currently conducting this type of work, whether federally funded or not, to voluntarily pause their research while risks and benefits are being reassessed.”

The increased federal scrutiny triggered pushback from some virologists, including coronavirus researchers Ralph S. Baric of the University of North Carolina and Mark R. Denison of Vanderbilt University.

“We argue that it is premature to include the emerging coronaviruses under these restrictions, as scientific dialogue that seriously argues the biology, pros, cons, likely risks to the public, and ethics of [gain-of-function research] have not been discussed in a serious forum,” Baric and Denison wrote to the biosecurity board on Nov. 12, 2014.

Referring more broadly to highly pathogenic flu and coronavirus strains, their letter added: “The pandemic potential of these viruses is clear, but they also are vulnerable in the early stages of an outbreak to public health intervention methods. . . . GOF [gain of function] experiments are a documented, powerful tool.”

Within weeks, NIH officials informed Baric and an undetermined number of other researchers that their work had been exempted from the pause.

I’d argue that it shouldn’t be only “scientific” dialogue; but perhaps experienced Ag and Interior people could help HHS design a “serious” public/scientific forum.  We’ve had a variety of political and media exhortations to “follow the science” which sometimes can spread into giving the mantle of authority to (some, usually at the expense of others) scientists and  into placing undue confidence in scientists acting selflessly in the public interest.  But hey, we’re just people, no better or worse.  Who don’t always behave well without oversight. I think that’s what President Eisenhower had in mind  when he said:

“Today, the solitary inventor, tinkering in his shop, has been overshadowed by task forces of scientists in laboratories and testing fields… ,” Eisenhower warned. “Partly because of the huge costs involved, a government contract becomes virtually a substitute for intellectual curiosity.”

While continuing to respect discovery and scientific research, he said, “We must also be alert to the equal and opposite danger that public policy could itself become the captive of a scientific-technological elite.”

Dan Sarewitz, an STS researcher, adds:

Eisenhower was concerned about a dilemma scientific and technological advances present modern society, Sarewitz said. The influence of these advances forces democratic societies to increasingly depend on a rarified elite to understand and manage the very complexity that they help to create and accelerate, he said. This is not only a problem of managing modern warfare, he said, but applies to other key technology-driven systems such as energy, agriculture and food, transportation, and communications.

And the interface between democracy and scientific expertise is the place that at least federal lands/forest people have long inhabited. In my own experience, not so much Big Science and the Science Establishment (like research on synthetic organisms.. what could go wrong?). I tried to find NEPA for NIH and HHS online but it seemed to relate to construction. Maybe there is a “when NEPA applies” paper like the FS has, for those organizations somewhere?

Here’s an interesting paper on synthetic biology and research needs for assessing environmental impacts. Perhaps we are several recursive steps (research to do research to do research) from doing the kind of environmental analysis that is needed for much of this kind of research.

USFS NEPA Study

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Folks, here’s an article that’s right up our Smokey Wire alley…. An article from Montana Business Quarterly, “Implementing the National Environmental Policy Act on National Forests,” by by Todd Morgan, Mike Niccolucci, and Erik Berg.

This article presents information about the number and types of NEPA analyses conducted by the agency, how long they take to prepare, and the frequency of litigation by NFS region and project purpose, as well as information on the NFS annual budget and land management accomplishments.

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Conclusions
This study suggests that more NFS land management is being accomplished per NEPA analysis (Morgan et al. 2021). Likewise, flat NFS budgets along with increasing accomplishments and declining numbers of NEPA analyses suggest the USFS is improving its acres treated per dollar appropriated to some mission areas, and may be reducing dollars spent per NEPA analysis. However, there is not strong evidence of increased speed in conducting NEPA, with just a four-day-per-year decrease in time-to-completion.

********************* Added by Sharon… here’s the part on litigation.

Litigation
The use of NEPA analyses in litigation against NFS management activities is well documented (Keele et al. 2006; Miner et al. 2010, 2014; Morgan and Baldridge 2015; Mortimer et al. 2011), and thus differences in litigation rates are worthy of some attention.

By analysis type, about 15% of the EISs, 2% of EAs, and 0.4% of the CEs completed between 2005 and 2019 were litigated (Table 1; Morgan et al. 2021). Projects with certain land management purposes appear to be litigated more often, regardless of analysis type. The most frequently litigated project purposes are forest products in 95 of 292 litigated analyses (32.5%), fuels management in 92 (31.5%) of litigated analyses, and vegetation management – nonforest products in 83 (28.4%) of litigated analyses. By analysis type, litigation frequency and rates vary, but forest products, fuels and vegetation management are consistently among the most frequently litigated project purposes or among those with the highest litigation rates. Grazing management and road management also have relatively greater litigation rates (Morgan et al. 2021).

There are striking differences in litigation by USFS region (Table 1; Morgan et al. 2021). The Northern Region (R-1) has the highest number of total litigated analyses, accounting for 25.7% of all litigated analyses nationally. Likewise R-1 has the highest overall litigation rate, with 2.3% of all R-1 NEPA analyses litigated, which is more than 2.5 times the national rate of 0.9%.

Table 1. Number of NEPA analyses and percent litigated by analysis type and National Forest System region.
Table 1. Number of NEPA analyses and percent litigated by analysis type and National Forest System region.

The Southwestern Region (R-3) has the most litigated CEs at 37.2% of all litigated CEs nationally. The R-3 CE litigation rate is more than four times the national CE litigation rate. R-1 has the most litigated EAs (29 of 101 litigated nationally) and the highest EA litigation rate (7.6%). That is 3.8 times the national EA litigation rate of 2%. R-1 also has the most litigated EISs at 23 of 78 litigated nationally (29.5%). Further, R-1 has the highest EIS litigation rate with 29.1% of all R-1 EISs litigated.

The seemingly low rates of litigation underestimate the on-the-ground impacts to USFS programs and R-1 projects are the most frequently litigated among the USFS regions (Morgan and Baldridge 2015; Morgan et al. 2021). According to USFS officials, the R-1 timber program has had 210 to 466 million board feet of timber – or an estimated 18,000 to 41,000 acres of treatment area – associated with some phase of litigation. That is roughly equivalent to 50% to over 100% of the region’s annual timber program impacted by litigation between 2016 and 2021. Even when a project is not directly enjoined by a lawsuit, the work associated with responding to litigation is significant and takes personnel away from their planned program of work, representing additional opportunity costs to the agency.

This goes back to the ongoing discussion of whether litigation is a problem or not.. specifically with regard to vegetation projects.  Lots of interesting info here.. especially the acres in Region 1 being litigated, as well as 31% of litigation being for projects identified as fuel management.

 

Let’s Discuss the Wildfire Emergency Act 2021. II. Landscape-Scale Restoration.. Same Old NEPA?

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This is probably obtuse and abstruse but here goes- I think it’s an interesting window into the minds of some people who have power in federal lands policy. Again, here are links to the summary and the bill itself.  If you’ll remember, the Daines-Feinstein bill (and all others that tweak current NEPA procedures) tends to provoke this kind of language among many environmental groups.  And this bill is supported by them… so let’s take a look at what it says.  These are the NEPA procedures for the Landscape-Scale Forest Restoration Projects we discussed yesterday, the idea being to work on areas up to 100K acres.

(I) The project shall use an efficient approach to landscape-scale analysis and decisionmaking that is consistent with the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), which may include—

1 (i) the preparation of a single environmental impact statement or environmental assessment, as applicable, for the entire project, incorporating the landscape assessment described in subparagraph (C);

(ii) the use of, as applicable—
(I) multiple records of decision to implement a single environmental impact statement; or multiple decision notices to implement a single environmental assessment;

(iii) the preparation of a programmatic environmental impact statement or environmental assessment, as applicable, for the entire project, incorporating the landscape assessment described in subparagraph (C), followed by focused, concise, and site-specific—
(I) environmental assessments; or
(II) categorical exclusions consistent with the National Environmental Policy Act of 1969 (42 U.S.C. 24 4321 et seq.); or

(iv) the use of the landscape assessment described in subparagraph (C),  through incorporation by reference and similar approaches, to support focused, concise, and site-specific—
(I) environmental assessments; or
(II) categorical exclusions consistent with the National Environmental Policy Act of 1969 (42 U.S.C. 10 4321 et seq.).

 

So I am not a lawyer, but I find this confusing.  If the idea of this bill is to make landscape scale projects more “efficient”, it seems to me that most efficient would be to develop a giant EIS (4FRI analyzed 1 mill acres and authorized 560K, without, as far as I know, supplemental site-specific NEPA).  There are problems with this approach, though; it takes a long time to do and to litigate, and by then many of your carefully analyzed acres may have burned up, perhaps requiring re-analysis.

I think iii raises an interesting question.. what good would it do to do a programmatic if you already have an assessment and you are going to use EAs or CEs for the site-specific analysis? When I worked in DC, I noticed at the interagency NEPA meetings that CEQ seemed fond of programmatics, the agencies not so much. Double the NEPA, double the quality of the decision?

I like iv… going from some kind of assessment to EAs or CEs.  But forests can do this already (even without the kind of assessment envisioned here).  They can use a recent forest plan vegetation assessment if they have one, or other kinds of collaborative work like the Zones of Agreement that the Blue Mountains developed.  So I’d argue that there could be a much simpler kind of assessment with which to support EAs and CE’s, and one that would be easier to update as needed.

So to get the more $ that goes with the Landscape Restoration Projects, you have to focus on returning to reference conditions (not helping suppression folks protect values at risk) and don’t seem to get any NEPA help- in fact you have to do more work (unnecessarily elaborate assessments). I’m not sure why this is part of a “Wildfire Emergency” Act.

 

Response to the Journal of Forestry Article: “US Forest Service NEPA Fast, Variable, Rarely Litigated, and Declining”

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There’s a new paper by Morgan et al. out in Journal of Forestry in response to the Fleischman et al. paper we discussed here and here. Since I was one of the peer reviewers for this response paper, I’d like to give some of my meta-thoughts about how all this worked out- related to the biz of scientific paper publishing in general. I respect all the scientists here- we are all victims of the current system. There are some of the same solutions as in the fish disagreement I posted last Friday, even though there is no misconduct in this case.

  • First, this would never have been published had some researchers not felt strongly enough about, had the time, and had access to the original data (thank you to the original authors!) to write another paper. How often does this happen? We have no clue. I’m thinking quite seldom.
  • Second, much of this second paper IMHO was unnecessary and could have been resolved by the first set of reviewers simply saying “stick to the analyses you did, and don’t assert anything that isn’t a direct result of what you found.” Say, in this case, with statements about the FS budget.
  • Third, an open pre-review process (even at the proposal stage) would have helped improve the first paper, and answered the questions raised in this response paper, making the original paper better, and saving us all lots of time. For example, data cleaning procedures might have been discussed, and based on that conversation, clearly documented. In any scientific field, there are only a few people who “get” the specifics of the data, how it was obtained, the lab or modelling protocols, statistics and so on. Certainly editors try to get those people for reviews, but they would be the first to say that’s not easy to do; and many heads are better than three.
  • Fourth, either the Forest Service should do some sort of quality control on the PALS database, or people shouldn’t use it in research without a great many caveats. (It’s true I was involved in the development of PALS, so I do have a bias toward having it up-to-date and available to the public for our own queries.)

What most interested me about Morgan et al.  were their observations about data in PALS and areas for improvement of PALS, as well as the need to make it easier to locate information on objections and litigation. Here’s just a brief example.

Our examination of the PALS-MYTR revealed very different elapsed days to completion for the three NEPA analysis types. Therefore, the type of NEPA analysis the agency uses for a proposed land management action should be a major determinant of the time it takes to complete that NEPA analysis. The agency was seeking, with the proposed rule changes, to increase the number of CEs it can use and to broaden some of the CE authorities. When a proposed action is suitable for a CE, its NEPA analysis is far more likely to take less time and far less likely to be litigated based on the litigation rates discussed below.

The PALS-MYTR contains 1,269 ongoing analyses, which Fleischman did not analyze. Of the ongoing analyses, 320 are identified as “complete”, 655 “in progress”, and 294 “on hold”. Many (505) of the ongoing and in progress analyses were initiated in FY 2016–2019, but there are over 400 ongoing analyses from FY 2005–2015. Presumably the on hold analyses are paused, but there were over 100 documents on hold as of April 2019 that were initiated between FY 2005 and 2013. This is a long time for a NEPA analysis to be “on hold.” This is another indication of a dataset that needs more complete documentation and checking and cleaning before it is used for policy analysis. Further, the number of elapsed days from initiation until April 1, 2019, for all ongoing analyses ranges from 101 to 5,203 days, with an average of 1,180 elapsed days (more than three years). There are more than 880 NEPA analyses ongoing and not marked complete that will have elapsed days greater than the five-month average the original authors portrayed as proof that NEPA is “fast.” By analysis type, 824 (65 %) of the ongoing analyses are CEs, followed by 331 EAs, and 114 EISs. The presence of 249 ongoing and in progress CEs and 187 ongoing and in progress EAs initiated from FY 2014–2018 does not indicate that NEPA is “fast.” These data may suggest that cleaning of the PALS-MYTR dataset should be completed before drawing conclusions about the timeliness or efficiency of NEPA.

I think it is useful to (1) have a relatively accurate database (2) have it available to the public (3) look at the database for information about managing and understanding how the FS does NEPA. Having said that, even the old GAO reports said that R-1 had more than its share of litigation. So in simple language, as I said in previous comments, you can’t just take perceived regional problems nationally and average them into not being important. I mean you can, but that’s a value, not necessarily “what the science says.”

If you want to read the whole paper (it’s a must-read for NEPA aficionados), you can ask for a e-reprint from the main author.

The Rest of the Story: the LAVA Project, the Mullen Fire, and Ongoing Implementation

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From the LAVA Story Map, you can click on this image to get better resolution

We’ve talked about condition-based NEPA before in several posts. At the time I worked on a CBN project (2010-ish, Obama Administration), it was considered a way to deal with the need for management at the landscape scale. You’ll remember that “increasing the pace and scale” “landscape scale” and some version of “all lands, all hands” has been the view of several Administrations, and I don’t think is all that controversial. The idea goes something like this.. with climate change and past fire suppression (Ds) or past fire suppression and lack of timber management (Rs), there is a need to reintroduce prescribed fire and to protect watersheds, communities and species from uncontrolled wildfires (exacerbated by climate change.)

If I recall correctly, condition-based NEPA is in the current Forest Service NEPA regulations. But naturally, there are disagreements about specific NEPA approaches and specific projects.

We discussed the LAVA project on the Medicine Bow National Forest as an example of condition-based NEPA. Their argument, as with the Black Hills bug project, was that the changes in conditions due to bugs required flexibility. I wrote two posts on the WaPo story on the project (usually the WaPo is not too interested in Wyoming) here and here. It attracted much attention by some environmental groups.

I also delved through the documents to find their approach to site-specific public involvement, since some had expressed concerns about how/whether that would happen.

Last summer, there were major fires in that country, so what happened with the project? Fortunately, they have a handy webpage that summarizes the current status.

 

February 1, 2021 – During the fall of 2020 the Mullen Fire impacted the Medicine Bow National Forest, burning portions of six of the 14 accounting units that make up the LaVA project area. LaVA implementation is on hold in the six affected accounting units while Forest staff develop a supplemental information report assessing post-fire conditions in these areas. Additional information about the supplemental information report will be shared as it becomes available. LaVA implementation may proceed in accounting units that were not affected by the Mullen Fire in the Sierra Madre Mountain Range and the Northern Snowy Mountain Range (click here for details). Additional LaVA checklists for treatments in the unaffected accounting units will be released over the next few months. The LaVA StoryMap is being updated to reflect changes in the implementation schedule due to the Mullen Fire. Launch of the updated StoryMap is planned for early spring of 2021.

  • The LaVA StoryMap is an interactive GIS map where users can:

    • Learn more about the LaVA decision.

    • Utilize interactive maps of the Sierra Madre and Snowy Ranges in combination with LaVA project analysis data.

    • View past/current/future treatment locations and information.

    • Provide feedback on future treatments and focus areas.

    • Learn about cooperating agencies.

      I thought the story map was pretty cool and I posted an image from it above. I particularly like how they’ve made it easy for people without GIS skills to look at the overlays.

      So far, there has been no litigation and implementation of the project is ongoing. I wonder why, or what changed such that organizations which were against the project have apparently chosen not to litigate.