NEPA

Here is the discussion about NEPA with my and Sam Evans’ perspectives from the Jack Igelman Carolina Public Press story here. What do you think?

Although politicians have portrayed NEPA as enforcing rigid and redundant rules that prevent action, within the agency, said Friedman, the view of NEPA is “based on how (its) tasks and practices affect them and their work.”

For example, she said, a public affairs specialist may appreciate the public input aspect of the law.

Friedman said that when she joined the agency in 1979, “a strong bias that the real work was in the woods and not chained to a desk” existed.

But the culture within the agency has changed, and some now see the law as a means to “getting involved in decision-making and influencing what the project does,” she said.

Still, within the agency, there are plenty of concerns about NEPA.

An October 2018 roundtable discussion hosted by the National Forest Foundation — the nonprofit arm of the Forest Service created by Congress — identified several concerns within the agency and its partners.

They included fear of litigation, the lack of capacity within the workforce, varying knowledge of NEPA among staff, and concerns that resources reallocated to fire suppression have dried up budgets, among many others.

Evans thinks an internal perspective exists among some bureaucrats within the Forest Service who “feel NEPA is a red tape obstacle they want to get rid of — that NEPA is the problem.”

“NEPA gets the blame but is a critical safeguard to make sure that the work the Forest Service does is good” and a counterweight to politicians who see the legislation as excessive bureaucratic regulation, he said.

“There is also a perspective in the agency that NEPA is the only counterweight of the extreme pressure on staff to cut more timber,” Evans said.

“(NEPA) is the yin and yang of Forest Service decision-making, and the current reforms fundamentally shift the balance of power in agency decisions.”

I told Jack that when I started in 79, the first CEQ NEPA regs had only been out for a year. So to the work generation before mine, (I’d use the term “mothers” except I don’t remember any females in that cohort) doing NEPA was a completely new thing. It required hiring people who knew about obscure topics like fisheries, economics and so on, which required a massive cultural transition. But that was forty years ago now, and that generation and mostly my own (who worked on Process Predicament) have gone. Current employees have grown up with NEPA.

I also told Jack that CE’s are a bit like an IRS short form (it’s not a great analogy but..) the IRS mostly knows the situations that require long forms (think extraordinary circumstances). Some people don’t like doing their taxes, but everyone likes getting refunds (the equivalent of getting projects done?)

Many NEPA people love doing (at least part of) NEPA. It can be underappreciated and I always thought it was excellent preparation for line officer work. Some specialists see NEPA as something that makes them write boring docs when they could be in the field or working their program. Others look at it as way to gain influence over decisions, or faithfully represent the trade-offs to the best of their professional skill. Some people like me really like talking to people at public meeting and trying to figure out a way to design the project so that as many interests as possible would agree. Perhaps it was more fun for me, as the kinds of projects I worked on did not have timelines that were rigorously enforced.

For us retired folks, it’s hard to keep up with new CE’s, and for the regulatory ones, litigation throwing them out. I ran across this handy table comparing the Farm Bill and Wildfire Resilience CEs. It says “draft” and didn’t come from the FS website. I know the Forest Service usually puts out good training material for NEPA practitioners, so I’m hoping that one that is complete for all vegetation-related CEs is out there somewhere.

The Society of American Foresters 2020 Convention in October included a number of interesting presentations, and I’ll be posting about some of them. This one is a study by Chelsea McGiver and Dennis Becker at the University of Idaho Policy Analysis Group. I encourage those interested to view their entire Does Collaboration Make a Difference-SAF2020here.

As a person who has been following these kinds of studies since 2000-ish (I worked on Process Predicament from the NEPA side), it’s seldom that someone comes up with a really new idea or metric. As Fred Norbury, then Director of the EMC staff in DC, used to say, “how can we say it takes too long and costs too much if we don’t know how long it takes and how much it costs?’

McIver and Becker have come up with a metric for efficiency which is the ratio of acres treated per planning day. This seems to me to be an innovative and useful metric. Kudos to them for working through FACTS and PALS to get the acreage numbers.

Here are their findings:

*No significant difference was found in planning timelines between collaborative and traditional projects

*Collaborative projects were significantly larger in terms of acres treated than traditional projects

*Collaborative projects were associated with significant increases in planning efficiency

*Collaborative projects were associated with significant increases in the number of unique activities accomplished

*Mean number of unique objectives greater for collaborative projects across decision types

Thoughts?

Ya gotta love the Washington Post..or not. Here’s their story.

In a last minute change before leaving office, the Trump administration finalized a rule Wednesday that will allow the U.S. Forest Service to log and otherwise manage 2,800 acres of forest in the West without an environmental review.

I sometimes wonder if the people quoted in these stories even actually read the regulations.. of course, Sam Evans and Bill Imbergamo did, but ..

“Categorical exclusions are a “permission slip” for loggers to cut trees and developers to build roads without informing local communities of the work, Flint said. Forests are a source of drinking water for more than 150 million people..”

But… scoping requires informing local communities.. and there’s a requirement for collaboration, which I think would be difficult without informing people.. oh well.

We were working on comments on the proposal in August of 2019, so I also don’t think it was really “last minute.” I don’t know what held them up. Of course the new CE doesn’t just apply to the West, and there is environmental review in a CE.. it has to be documented that it fits the CE which, of course, requires some environmental review. I’ve seen 30 pages in Farm Bill CE documentation.

As a person who spent time discussing and preparing a joint comment letter, I was hoping not to have to read it again and figure out which changes fell in line with our comments. Fortunately, the Forest Service came out with this handy table that shows the old reg, the proposed reg and the final reg. What’s great about the table is that you can clearly see what has changed. Changes to scoping, for example, which had raised much concern, was left alone. Here’s a link to all the NEPA regs information.

But let’s focus on the changes from the current regulations:

DNAs
Clarifies required elements from proposed rule. Clarifies that DNAs require inclusion on the SOPA, are subject to scoping, administrative review processes (including public notice and comment
periods) that were applicable to the prior decision, and include issuance of a new decision document.

RESTORATION CE Allows 2,800 acres of activities (which may include commercial/noncommercial timber harvest). Primary purpose of all activities must be achievement of restoration objectives.
Salvage harvest is not allowed under this category. Requires project development via a collaborative process.

ROADS CE Split into 2 CEs: Road management activities on up to 8 miles of NFS roads. Construction and realignment of up to 2 miles of NFS roads.

SPECIAL USE AUTHORIZATIONS CE: Retains the combined CE from proposed rule with minor modification. Expanded 5-acre CE to 20 acres and updates the list of examples.

RECREATION SITES AND ADMINISTRATIVE SITES: N/A Allowed construction, reconstruction, decommissioning, relocation, or disposal of buildings, infrastructure, or other improvements at recreation sites. Parallel CE for administrative sites

If you want more detail and don’t quite want to read the reg itself, here’s an analysis on JDSupra that talks in more detail about the CE’s, so you can see the ones you might be interested in and read that part of the reg.

It seems like the FS has stepped way back from the original proposal, based on public comment.

What I was thinking about the restoration CE is that we already have the Farm Bill CE with up to 3K acres, with restrictions like insect and disease and WUI or condition class. It would be interesting to see a side-by-side of the Farm Bill CE and this new one. The challenge would seem to be to be able to prove in court that “activities litigators don’t like” are really “restoration.”

Note that there’s an informational webinar listed on the home page.

Please post other analyses below.

If you’ve been following this in a casual way, you might have heard “this is the best thing since sliced bread” or “the Trump administration has eviscerated NEPA.” But what’s really in it? I asked Joe Carbone, one of the most wise, thoughtful, and experienced NEPA experts I know, to give his views and to kick off a discussion.

According to the Council on Environmental Quality (CEQ), their revision to the National Environmental Policy Act of 1969 (NEPA) regulations (40 CFR 1500-1508) “updates, modernizes, and clarifies the regulations to facilitate more efficient, effective, and timely NEPA reviews by Federal agencies.” Multiple organizations have raised complaints about the revised regulations undercutting NEPA’s goals.

We can engage in many discussions about the pros and cons of the CEQ revisions; however, as a long-time NEPA practitioner and policy wonk, I am first asking whether the revisions will meet CEQ’s intended outcomes. While the 2020 regulations are somewhat more modern, I do not understand why the administration and industry groups are cheering the changes as an accomplishment for future infrastructure projects requiring Environmental Impact Statements (EIS). Although contrasting flowcharts at the regulation rollout in Atlanta showed a dramatic change under the revised regulations, the changes will fall short of CEQ’s goals when it comes to EIS efficiency.

The regulatory impact analysis for the rule is qualitative, attributing savings to the same efficiencies in the 1978 regulations (reduce unnecessary paperwork, reduce delay, improve coordination, focus less on non-significant impacts). The greatest reduction seems to be based on the now required presumptive time limit for EISs (58% reduction assuming a 2-year completion time).

Generally, some of CEQ’s changes merely reorganize the regulations and incorporate modern technology, current agency practice, CEQ guidance, and case law. These have little to no impact on future efficiency since they are already used today. However, other changes remove requirements that were already based on case law (i.e. cumulative and indirect effects) and add many new requirements [i.e. notice of intent request for potential alternatives, information, and analyses [1501.9 (d)(7)], summary (1502.17), comments on the summary [1503.1(a)(3)], and a certification in a record of decision [1505.2(b)]. The uncertainty surrounding eliminated requirements originally based on case law and new requirements will surely extend the cost and time needed to prepare an EIS.

Removing previous requirements that were based on case law such as indirect and cumulative effects leaves the impression these types of effects no longer need to be considered. This poses uncertainty for Federal agencies as they debate the merits of whether to include them. This is a change the environmental community and the courts are not likely to ignore. In the end, agencies will still need to consider indirect and cumulative effects; however, the uncertainty, debate, and resulting litigation will undermine timely decisions and implementation.

The requirements associated with a new summary in the draft and final EISs (this is in addition to the required executive summary) will take more time and documentation to implement as this requirement spans from the notice of intent to file an EIS through potential litigation after a decision. This problem starts with one of the four new requirements in a notice of intent to file an EIS. Agencies must now include “a request for identification of potential alternatives, information, and analyses relevant to the proposed action.” This information ties to the new requirement for including a summary in the draft EIS that identifies “all alternatives, information, and analyses submitted by State, Tribal, and local governments and other public commenters during the scoping process.” This summary then ties to the new requirement for a draft EIS, to “invite comment specifically on the submitted alternatives, information, and analyses and the summary thereof.” The final EIS must also include a summary of “all alternatives, information, and analyses submitted…in developing the final environmental impact statement.” This summary then ties to the new requirement for a record of decision, to: “certify in the record of decision that the agency has considered all of the alternatives, information, analyses, and objections submitted by State, Tribal, and local governments and public commenters.” All of this is tied to judicial review, where “Comments or objections of any kind not submitted, including those based on submitted alternatives, information, and analyses, shall be forfeited as unexhausted” [1500.3(b)(3)]. As the regulatory impact analysis states: “CEQ expects the exhaustion requirement to reduce the litigation costs that NEPA generates.” As I see it, this is a typical approach to fix NEPA litigation – add more documentation. How does this shorten timeframes and speed decisions?

Agencies already receive thousands of comments on draft EISs, including articles, research, photos, and other information – relevant or not. You can bet they will receive many more comments covering a wide spectrum of “alternatives, information, and analyses” along with traditional comments on alternatives and effects during scoping and the draft comment period just to cover commenters’ potential litigation needs. Agencies will need to track every comment related to each commenter, prepare the summaries for the draft and final EISs, certify in the record of decision that the comments were considered, and review standing eligibility in case of a lawsuit.

With new regulatory interpretations and requirements, there is an added burden of showing the agency took a hard look and was not arbitrary and capricious in its findings, decisions, and certifications. This will take quite a record. While agencies are compiling records they will also be counting pages to keep the EIS under the now required 150-300 pages (1502.7), marking time to get to a decision within two years [1501.10(a)(2)], and tracking EIS costs to put on the cover [1502.11(g)]. Perhaps those are the requirements designed to speed the process, but they are more likely to be distractions and agency time-sinks on top of the new summary requirements.

Do those who are cheering the revised NEPA regulations see something to speed agency decisions or have they been fooled by messaging and optics? I do not understand how more process and documentation requirements will shorten timelines, but I am open to hearing how others see these changes playing out if the revised rule is implemented.

Joe Carbone, Carbone Consulting, LLC

Joe Carbone is a National Environmental Policy Act (NEPA) consultant and trainer. He retired after 37 years with the U.S. Forest Service where he oversaw the agency’s NEPA policy in Washington D.C. and Atlanta. He served as Deputy Associate Director for NEPA at the Council on Environmental Quality in 2016.