Example of Fire Suppression or Expansion Concerns: Guest Post by Frank Carroll

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This is a guest post from Frank Carroll.  I think it’s a good illustration of specific concerns that people (including some TSW readers) have about a specific fire.

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Here’s a current example of FS letting burn and expanding the burn policy on the Santa Fe National Forest, Coyote Ranger District. Their aim appears to be to drag the fire into the Encino Vista project area. www.wildfirepros.com
Below is yesterday’s (5/28) thermal hotspot map from #firemappers superimposed on a map of the region.  Forest Road 77 is the yellow road at the southern perimeter of the fire, so it seems that the “low-intensity burn” cited may be the apparent firing activity to the south of 77.  This firing activity comes within about a mile of Route 96 (the area’s main road) and the Encino Vista Project area.
         blue line – Chama Canyon Wilderness boundary
grey area at bottom right – private land
red circle with white flame – location of May 19 fire start
pink line at bottom left – north boundary of Encino Vista Project area

Encino Vista project is just south of this map. It appears the FS is burning south into the teeth of the dominant SW wind to reach their project area and use “emergency fire suppression” appropriated dollars to perform a prescribed fire on a huge scale. Note the red dots with a white center to the south. These are very recent drone strikes.

We’re being played by unilateral decision-making on the fate of public resources. If this thing blows up and escapes, it’s going to decimate a beautiful Southwestern Region PIPO Forest.

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Question for Readers: Are Fire Management Plans Required? If So, What’s in Them?

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I was taking a look at a more recent Taxpayers for Common report on wildfire (to be posted later) and ran across this report from 2002.  The title is Wildfire: Just the Facts.

1. During the 2002 wildfire season:

  • 2.4 million acres of Forest Service and burned, in addition to 4.8 million acres of other federal, state, and private land.
  • Firefighting costs reached a record-breaking $1.6 billion.
  • 2,381 structures were lost.
  • Over 30,000 people were involved with firefighting efforts, including firefighters and support personnel.

2. Decades of fire suppression have actually increased the risk of wildfire, especially in forests that experienced frequent low-intensity fires that cleared out undergrowth. Wildfires are a natural part of many forest ecosystems, thus some wildfires should be allowed to burn within certain limits. Human safety and the protection of property and natural resources should remain priorities.

3. Funds spent on fire preparedness directly reduce the amount spent on fire suppression. According to the Forest Service, every $1 spent on fire preparedness decreases suppression costs by $5-$7.

4. According to the General Accounting Office, the Forest Service relies on the commercial timber sale program to reduce wildfire risk and tends to concentrate on forests with high-value timber rather than those facing the greatest risk. Also, fire-risk reduction projects are judged based on the number of acres treated, leading to the treatment of the cheapest areas, as opposed to those that are at the highest risk.

I’d say that the first statement is not true anymore, the second still a topic of concern.

5. Commercial logging can increase the risk of wildfire. Logging removes large, green, fire-resistant trees leaving behind smaller fire-prone trees; opens the forest canopy which leads to drier forests that are more susceptible to fire; and leaves behind flammable materials (i.e. twigs, branches and needles) that increase the rate of fire spread.

I don’t think that this was a “fact” then.. I guess it has to do with the “can” in the bold versus the plain old statements in the rest “logging removes” not “can remove.”

6. Congress gives the Forest Service a “blank check” when it comes to firefighting and does not even try to set a realistic budget for fire suppression. Congress has always reimbursed the agency for any and all costs.

Perhaps fire borrowing came and went since 2002.

7. Fifty-six percent of all National Forests lack approved fire management plans, which were required by the 1995 Federal Wildland Fire Policy. These plans outline what will and will not be done in the event of a wildfire, and the lack of such plans can actually make it harder and more expensive to fight wildfires. Because of the blank-check funding for fire suppression, the Forest Service has little incentive to try to reduce costs through the implementation of these plans.

What are these? Were they really required? Does every Forest have one now? What’s the difference between a fire management plan and a fire plan amendment?

“Revolt in the Firefighting Community?” Hype or Reality?

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Scott Lindgren Tahoe-Douglas Fire Chief and head of the Northern Nevada Fire Chiefs Association

I certainly don’t know, but some folks sent me links to this article in the Nevada Globe with that title. It’s by a reporter named Dana Tibbitts who has also written a three part series called “license to burn: wildfire as the ultimate public-private partnership.”

Now we know that different folks here have views on all sides of this issue here at TSW so this may lead to a good discussion.

Indeed, the Chief’s “Burn Back Better” letter has caused a firestorm among firefighters and Forest Service veterans nationwide.

“We ain’t seen nothing yet,” said one fire veteran in response to the letter. “The USFS is doubling down. The Chief’s claim of a ‘historic achievement of 4.3 million acres of restoration’ prioritizes rampant ‘Wildfire Use’ over a strong ‘Initial Attack’ to put the fire out from the get-go. It’s also a misappropriation of congressionally appropriated funds allocated to the agency for emergency fire suppression.” 

Last year was a reprieve,” National Wildfire Institute (NWI) sources say. “Forest maintenance is down, so acres burned will likely increase. It’s only May 22, and about two million acres have already burned. Look for about eight million acres to burn in the 2024 fire season as a strong ‘Initial Attack’ policy gives way to a ‘managed’ or ‘beneficial’ fire. If history is a guide, the West will bear the brunt.”

I couldn’t find out much about the National Wildfire Institute via Google searching. I know TSWites know more about this group, so hopefully you will provide links below.

The colossal fiascoes of the Caldor, Tamarack, and Dixie fires of 2021 are case in point. These fires were allowed to run for months, consuming almost 1.3 million acres of Sierra Nevada forest. The costs of Caldor Fire damages alone ran in the billions of dollars, not including trees and wildlife lost, or damages to 1,200 residents displaced from their homes.

Burning an average of more than six million acres a year over the last decade is now a standing order for the USFS, not only in California but across the nation. The wholesale use of “managed” or “prescribed” fire under the guise of firefighter safety, forest health, and resilience and restoration, is scarring landscapes, devastating forests, and leaving vast lifeless ecosystems with few signs of recovery.

This sounds more like an op-ed than reporting- but then that’s fairly common today.  Anyway, here’s a local fire chief with concerns:

Tahoe-Douglas Fire Chief and head of the Northern Nevada Fire Chiefs Association, Scott Lindgren said, “The latest forecast and guidance from the Chief is so unhinged from firefighting realities on the ground as to defy rational analysis or practical guidance.”

Fire Chief Scott Lindgren (Photo: Tahoe Douglas Fire Protection District)

USFS Regional Foresters are deploying a new policy, calling for all fires in the Tahoe Basin to be risk-assessed and monitored by USFS Regional Foresters, who alone would determine the appropriate response to new fire ignitions.

Lindgren rejects the idea. “It’s a non-starter. If a fire in the Basin threatens my jurisdiction or community, we’re not going to wait around. We’ll hit every fire hard and direct with everything we’ve got. Managed fire is not an option. Look at Caldor and Tamarack. We need to put fires out immediately.”

“The USFS decision to allow these fires to burn is criminal,” Lindgren added. “I’m very disturbed that, by allowing these fires to burn like they did in the Tamarack Fire, they get to count those acres as ‘treated.’ These are not treated acres—they are destroyed acres!”

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When Fire Chief Lindgren testified before the House Committee on Natural Resources in 2022, he raised concerns about Chief Moore’s LOI continuing to advocate the catastrophic burn policy, even after the Caldor and Tamarack fire debacles.

“Many local fire chiefs were very upset,” Lindgren testified. “So, we wrote our own letter of intent, which we believe reflects the public’s expectations and demands of us.” Over 30 chiefs in California and Nevada sign the letter annually.

“We will aggressively attack all fires within or threatening our jurisdictions. We will hit them as fast and hard as possible when they are small. In these unprecedented conditions, we can’t afford the risk to our public, our communities, the environment, the wildlife, critical infrastructure, or our firefighters by letting these fires grow out of control. We will use every available resource and tool to keep this from happening…We will find a way to get ahead of it and stop it at all costs,” Lindgren stated.

“Why can’t the USFS take a similar stance?” Lindgren asked. “Burn Back Better isn’t working.”

The Biden-Harris administration’s plan to Burn Back Better, detailed in Confronting the Wildfire Crisis, lays out a 10-year plan to treat (code for burn) 20 million acres of National Forest System lands, 30 million acres of other Federal, State, Tribal, and private lands, and an additional 10-million-acre targeted burn. That’s a whopping 60 million acres of unauthorized, ill-conceived, unilateral burn treatments for America’s forests, rangelands, and Wildland Urban Interface communities—all in the name of so-called science, resilience and restoration.

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My understanding is that the treatments in the plan include prescribed fire, mechanical treatments, and managed fire.. does anyone know if those categories are broken out in reporting?  Last time I had to dig out the managed fire from a budget statement.

I followed the link to Lindgren’s testimony..and here he is on pay and benefits:

There has been some great work done on State and private land in the Basin. But work on the USFS land is inconsistent and sloppy. This is not the fault of the USFS Lake Tahoe Basin Management Unit, but more so due to lake of funding and lack of staffing. The pay and benefits for the USFS are incredibly deficient and frankly embarrassing. They have massive trouble recruiting and retaining employees. The good employees that they do have are very dedicated, but can only do so much. I have heard the promises in this year’s budget
to fix their pay and benefits, but from what I have recently heard from some of their employees, they have not seen any change. Why? They deserve to be paid what the state and local
government fire departments make. Until the pay and benefits are fixed, you won’t fix the problem. I urge you to fix their pay and benefits ASAP.

Of course, Lindgren’s testimony was in 2022; I haven’t been keeping track of whether pay and benefits (and housing) have been fixed or  not.

New Players in the Wildfire Space: How Can We Work Together Better? Transparency and Funding

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Right now in the wildfire space, we have many new folks entering from the political and philanthropic world. How should we welcome them gracefully to what has been historically our space? How would we like them to work with us? I myself have felt territorial from time to time; and yet, these people have far more money and political power than our own communities, so the better we work together the better off we will be. They’ve got new and different ideas from many of us in this space, and they well may be good ideas!  In some cases, they have ideas about how to deal with Climate, and to them, wildfire is one aspect of climate.  We tend to look at wildfires as something we’ve dealt with in various ways (both of thinking and of action)  at least for the last half century- within the memory of TSWites.  Clearly these different perspectives could lead to different framings and different solutions.  We have advantages in terms of knowledge and experience, they have advantages in terms of funding, access to media, and political power.  How can we best work together?

In this series of posts, we’ll take a look at some of the players, their backgrounds and interconnections. Today I’m going to lay some groundwork.

I’m assuming that the new folks have good intentions. But in political world, charitable groups (c3s and 4s) and foundations are not known for transparency. And many of the new players in wildfire space are affiliated with the D political party and/or SIPs (self-identified progressives).  Does their source of funding matter? I’d suggest it does. Not that they are bribed by it, nor that the people funding them are questionable. As the article below argues, Ds as well as Rs have every right to use so-called dark money, since that’s the way the world currently works.

I’m interested in increasing trust in government and making government better; everyone probably agrees with that.  Using dark money, by either party, does not help with that.  I understand the tendency to keep donors secret, but also what they spend their money on seems to be secret.  Lobbying for what exactly? And is anyone checking that the c3s (tax exempt) moving money to c4s are following all the rules (which seem pretty convoluted to me)?

If we were in the New Folks’ shoes, we might foresee a time that our partisanship and our goal of improving wildfire resilience might diverge. Since many fire-prone areas have R politics,  since both parties seem to be around 50% of the population of the country, and since wildfire is going to take long-term investments and coalitions, off the bat, bipartisan solutions seem like the way to go.  And sometimes partisans (on both sides) seem more interested in using issues to gain power than in actually solving real-world problems.

So I want to be very clear that my work to make these folks’ funding and goals more transparent is in the ultimate interests of all of us, to work together toward shared and supported outcomes with minimal Distracting, Expensive and Unnecessary Partisan Drama.  Other concerns include possible tendencies of the New Folks to not interact directly with those in the traditional wildfire space, which could lead to unworkable policy ideas and/or reinventing the wheel.  Hopefully, we can encourage them to work directly with those currently in this space, scientists, practitioners, county and state governments, and so on.

So basically I’m not doing this to pick on Ds- I’m not asking them to do anything different from what I’d ask R’s. It just happens that they are moving in to wildfire space.

I first noticed a few weeks ago that some of the funding for our our new folks (and some newly going to traditional folks in the wildfire space) is indirectly from sources identified with “dark money.” In 2021, Rachel Cohen wrote an interesting article in The American Prospect on dark money and Ds. According to Wikipedia (not always a trusted source) The American Prospect is a magazine from the liberal and SIP perspective. The article has a great explanation of some of the complex context for the lack of transparency, and the concerns that SNPs themselves have with it.  The whole piece is worth a read.

WITH UNION MEMBERSHIP RAPIDLY DECLINING, progressives struggle to counteract the massive power and influence of the corporate lobby. To fill the gap, they turned to tax-exempt nonprofit organizations, of which there are two main kinds, both named for the section of the federal tax code under which they are regulated. 501(c)(3)s, also known as public charities, range from symphonies to the Boy Scouts to (full disclosure) The American Prospect. They can engage only in limited amounts of lobbying, and cannot donate to political campaigns. Financial contributions to c3s also yield donors a tax deduction. 501(c)(4)s—the social welfare groups—provide no tax deduction for contributions, but they can endorse candidates and engage in unlimited lobbying, so long as this doesn’t comprise the majority of their activities. Importantly, they need not disclose their donors.

One doesn’t have to squint to see why dark-money groups are attractive to the rich. The vehicles allow them to donate and avoid the negative attention that might come with disclosing their identities, like protests outside their home or bad press. Anonymity also helps them avoid threats of violence or actual harm, defenders of the status quo like to say. The Philanthropy Roundtable, a conservative advocacy group for charitable giving, says shielding donors from public scrutiny is necessary for “philanthropic freedom.”

While some issues—particularly abortion access—have a real record of harm for supporters, most advocacy groups hide today behind harassment of abortion activists to rationalize their own lack of transparency. Other groups cynically cite a Supreme Court decision from six decades ago that unanimously ordered Alabama to stop accessing the NAACP’s membership list, concluding that doing so interfered with members’ right to freely associate. However, a billionaire donating to a political nonprofit to run anonymous ads against Medicare expansion should not be likened to the legitimate threats Black Americans faced in the South during the civil rights movement.

Sen. Sheldon Whitehouse (D-RI), the lead sponsor of the DISCLOSE Act, says he has no problem with rich donors who want to, say, give discreetly to their alma mater. “There are some good reasons for anonymity, maybe you want to give a big donation to your university and want to avoid other people coming to ask you for money—there’s nothing really wrong with that,” Whitehouse said. “But it’s different when you’re trying to exert political pressure over others and refuse to stand up for your views.”

I’m totally with Whitehouse on that.  At the same time, he is one of the supporters of WEG.. who.. don’t disclose their donors.

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DOES IT REALLY MATTER if liberal political advocacy groups and campaigns disclose their donors, if the house is on fire?

Dorfman thinks that transparency is “helpful to the cause” and that groups should disclose “a great deal of information,” but acknowledged that sometimes donors just don’t want to do that. “I think each organization in the progressive space needs to make that call, on their own within the limits of the law,” he said.

One challenge of hiding donors is that it makes it more difficult for the public to assess which organizations authentically speak for the communities they purport to, and which are just pet projects of the rich or schemes by companies.

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These advocacy groups, and their donors in turn, exert real influence on the priorities of politicians, leading them too often in less populist directions. This isn’t new, and the Democratic Party in particular has been making itself more easily swayed by the whims of the wealthy ever since the early 1980s.

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Political scientists Alexander Hertel-Fernandez and Theda Skocpol have noted that the structure of these elite donor consortia have potential to influence politics in uniquely powerful ways, even beyond similar partisan super PACs and single-issue advocacy groups.

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My bolds:

The suggestion that wealthy donors on the left never advocate for their economic self-interest doesn’t hold much water, either. The rapid demise of the ambitious and extremely popular redistributive tax proposals in the Democrats’ Build Back Better Act suggests who still has the ear of those in power.

“This stuff is so opaque and no one is holding anyone accountable,” said one staffer whose employer works with the venture philanthropy funds. “The organizational landscape of civic and political organizations is just totally being transformed as inequality grows and rich people get uber rich and we are finding more creative ways to distribute their money.”

The staffer, who works in progressive movement building, says the landscape is becoming “extremely donor-centric” in a way that no longer even resembles the industrial-titan philanthropic milieu they once knew. “We’re entering this new era of capitalism dominated by finance, tech, and insurance. The money is different,” they said. “We’ve linked our fates here to new powers within capitalism, and [how] that money is moved, aggregated, pooled, and filters down is really different than even several years ago, and it scares me a little bit.”

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AS PROGRESSIVE GROUPS GROW more dependent on rich donors who’d like to keep their contributions private, liberals find themselves contorting into awkward positions to justify the status quo, insisting groups that are clearly affiliated with the Democratic Party are not, in fact, partisan. Political nonprofits tend to insist they’re independent and simply “issue oriented”—a framing that’s practically dubious but legally necessary to keep their nonprofit status.

This strained logic was on display this past year when The New York Times profiled obscure Swiss billionaire Hansjörg Wyss, who has become one of the top funders of left-leaning organizations, donating hundreds of millions of dollars since 2016 both to entities that distribute funds to other progressive political advocacy groups, and directly to organizations like the Center for American Progress, a liberal think tank where Wyss sits on the board. While Wyss does not donate directly to candidates or PACs, the groups benefiting from Wyss’s contributions work to help Democrats and defeat Republicans. Representatives for the billionaire insisted to the Times that his money was not “spent on political campaigning” and was merely “bolster[ing] social welfare programs in the United States.”

With a heavily weakened and embattled IRS, partisan c4s are so confident today that they will face no punishment for engaging too much in political activity that even Majority Forward, a c4 founded in 2015 and affiliated with Senate Democrats, told the Federal Election Commission that it did not receive contributions in 2018 earmarked for political purposes and thus refused to disclose its donors, despite spending more than $45 million that cycle boosting Democrats.

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As to Wyss.. I wrote about him on TSW here (Swiss dude with outsized policy influence).

More recently, I ran across an article from last fall by a fellow in Maine about Wyss:

Wyss is hardly a newcomer to influencing Maine politics — even if he is, as a Swiss foreign national, prohibited under federal law from voting in America or donating to American political campaigns.

Through his $2.7 billion Wyss Foundation, his $232 million Berger Action Fund, the Democracy Alliance’s Democracy Fund, and the Arabella Advisors network of dark money, Wyss has joined other progressive billionaires like George Soros, S. Donald Sussman, and Pierre Omidyar in financing Democratic politicians and progressive activists, in Maine and nationally.

And one in February in Politico:

After the Sixteen Thirty Fund, Berger Action Fund’s next largest beneficiary was the Fund for a Better Future, a dark money group that supports causes like abortion rights, social justice immigration and public health, and is behind the green group Climate Power, which has supported Democratic climate priorities like the Inflation Reduction Act. Fund for a Better Future received $19.8 million from Berger Action Fund in fiscal 2022, down from $20.2 million the year prior.

More about Fund for a Better Future in wildfire space in a later post.

Civil War Memorial Grove

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This Memorial Day, I was looking for Forest Service or tree-related history and found this memorial at the State Capitol in California.

The Civil War Memorial Grove pays tribute to the thousands of men who lost their lives in the American Civil War.

The Grove was originally planted with trees from the Manassas, Harpers Ferry, Savannah, Five Forks, Yellow Tavern, and Vicksburg battlefields. Some trees came from other Civil War-related sites, including the tombs of Presidents McKinley and Lincoln.

The idea for the Memorial Grove dates to 1896, 31 years after the Confederate Army’s surrender marked the end of the American Civil War. Mrs. Eliza Waggoner and the Ladies of the Grand Army of the Republic, an organization of veterans’ wives and daughters, led the effort to create the memorial. Although California had sided with the Union Army, they felt the grove should represent all those who fought in the four-year war. Their concept was a living memorial featuring trees from important battlefields and other sites connected to the war.

veterans_memorial_marker

The Civil War Memorial Grove was the first monument in Capitol Park. Nearly a year went into planning, fundraising, and assembling trees from around the country. On May 1, 1897, the Grove was dedicated in a ceremony attended by several thousand onlookers. As children waved American flags, Judge Walling, Past Department Commander of the Grand Army of the Republic, shared these words:

memorial_marker_small

At the time of the ceremony, the trees were just saplings, each marked with a tag naming the battlefield from which it came. A sapling from Gettysburg, Pennsylvania stood beside one from Shiloh, Tennessee; a sapling from Lexington, Kentucky next to one from the Wilderness Battlefield in Virginia. In all, 40 different battlefields were represented. At the center stood “a tree of Peace” transplanted from Appomattox, the Virginia town where the Confederate Army surrendered in 1865.

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The Civil War was one of the most traumatic periods of American history, dividing families, friends, and neighbors. The Civil War Memorial Grove honors the many soldiers who lost their lives during the Civil War.

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9th Circuit Appeals and the Inyo Exploratory (12 Hole) Drilling Case: Did The Forest Service Ask Them to “Do Violence to” NEPA? Updated

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NOTE: This post has been updated with information from Dan Farber of UC Berkeley Law. Thanks, Dan!  I’ve added his thoughts in red below.

It’s a bit hard to keep track of what’s in the statutory amendments of last year and what’s in the new NEPA regs that Jon covered yesterday. I think this is a fascinating story that illustrates the confusion that can result when Congress and Admins mess around with the NEPA statute and regs..but this is only the tip of a future iceberg of glacial progress as the courts redo NEPA case law with the new NEPA regs. It reminds me a bit of the Paul Simon song:

Slip slidin’ awaySlip slidin’ awayYou know the nearer your destinationThe more you’re slip slidin’ away

The basic story of this case  is that there is a request for a permit for exploratory drilling which will be completed in a year as per an existing CE.  But the FS wanted them to do habitat restoration and monitoring, which would take longer.  So they used the habitat restoration CE for that. Here are the details of the project according to Courthouse News:

Kore Mining Ltd. wants to drill 12 holes, 600 feet deep, to try to find gold on federally owned land — which is legal, so long as it applies for a permit. The federally owned land in question is, as Mueller describes it, “a wide and gently sloping expanse of 1,848 shrubby acres” pocked with hundreds of holes bored by mining companies in the 1980s and 1990s. At the time, technical limitations meant that those holes couldn’t go deeper than a few hundred feet. But Kore Mining believes there might be gold up in them there hills and that deeper drilling might be possible today.

Kore’s proposal would require clearing vegetation and building about a 1/3-mile temporary access roads. The U.S. Forest Service concluded in 2020 that the project “was unlikely to have any significant effects on the environment” since it would take less than a year and require less than a mile of new roads.

During the public comment period that followed, numerous environmental groups, nearby towns and government agencies objected to the project. Of particular concern was the bi-state sage grouse, an iconic bird famous for its extravagant mating dances — “Picture a spike-tailed, puff-chested small turkey in a brown tuxedo, shaking and strutting in the brush,” Mueller wrote.

The Forest Service then said it would not allow Kore Mining to undertake any “disturbance activity” between March and June, the sage grouse’s mating season. It also said Kore would have take a number of steps to restore the land after its exploratory drilling, including returning the land to its original slope and sowing native seeds. And a biologist would have to monitor the area for three years after the drilling stopped.

Four groups — the Center for Biological Diversity, the Western Watersheds Project, Friends of the Inyo, and the Sierra Club — filed a lawsuit in October 2021 against the U.S. Forest Service and Kore Mining to halt the project.

“This drilling project will cause exactly the kind of noise and commotion that make bi-state sage grouse abandon their habitat,” said Ileene Anderson, a senior scientist at the Center for Biological Diversity, in a statement at the time. “It’s appalling that the Forest Service is willing to push these beautiful dancing birds closer to extinction for a toxic mine.” Environmentalists also worried about the impact the drilling would have to the groundwater in the area that feeds into the Owens River, which supplies water for Los Angeles.

So basically, some groups don’t want the project.  The court case seems to have focused on the two-CE issue;that is, they used two CEs instead of an EA.

Here’s what the Judge Mueller  said about this when finding for this in March of 2023.

While the mining operation was covered under the second exception, the habitat restoration, and in particular the three-year monitoring period, would of course take longer than a year, and would those need to be covered by that first exception.

“It is undisputed that all drilling, grading and construction will finish within a year; Kore will regrade the pads and roads and cap its wells within a year; revegetation is a nonherbicidal wildlife improvement for sage grouse; and Kore will construct less than a mile of new access roads,” Mueller wrote. The question, then, was: “Can a project be approved in two or more parts, each covered by a different exclusion?”

Mueller decided yes — though it may not be ideal, “a patchwork of individually-insufficient-but-collectively-sufficient exclusions can cover a single project or action.” Or: “Zero plus zero is zero.”

I do think that restoration is a different kettle of fish than other CEs, the whole point is to improve the environment.

Now as Dan Farber of Berkeley Law said in an interesting post today,  the (so-called) Fiscal Responsibility Act was signed in June 2023 (after the court decision), saying that

After the 2023 amendments, Section 111(1) of NEPA now defines a CE as “a category of actions that a Federal agency has determined normally does not significantly affect the quality of the human environment within the meaning of section.”  And section 106(a)(2) says that an agency doesn’t need an environmental assessment “if the proposed agency action is excluded pursuant to one of the agency’s categorical exclusions.”  It seems clear that the action  — a combination of drilling and restoration — does not fit “one of the agency’s categorical exclusions.”

However, that was after Judge Mueller made her decision.  So that changed the statutory landscape. Ah… but there was an appeal.

Dan says in his piece:

But what’s most striking isn’t what the court did discuss but what it didn’t mention : the fact that last year’s NEPA amendments  speaks directly to one of those issues. Apparently the word that NEPA was extensively amended a year ago hasn’t yet reached the federal courts.

So I asked Dan whether the statutes and regs for the original decision applied, here’s his emailed response:

The general rule is that an appeals court applies the law as it exists at the time of the appeal. The NEPA amendments were effective immediately, and there’s no indication in the statute that they apply only to agency decisions occurring after the amendments. So the Ninth Circuit should have considered them (or at least given some reason for refusing to apply them).  I don’t think that judges are really aware of the new law, to tell the truth, since they’re so used to operating in a setting where the statute itself is very vague and thinking all the rules come from the CEQ regs or the courts.

This is of concern (unless the goal of government is a full employment program for lawyers) for two reasons. Agencies can’t predict the future regulatory environment or future case law.  Also the idea that judges aren’t aware of this law.. this seems problematic.  Can lawyers make recommendations for topics for them to cover in their next training? Back to Dan’s original post.

The majority  said that the agency’s justification for avoiding the NEPA process was wrong, and that refusing to do an environmental assessment was such a basic violation of NEPA that it could not be considered harmless.   The dissent, on the other hand, says that the Forest Service had plainly taken as close a look at the environmental issues as it would have in an environmental assessment.  (If that’s true, one wonders, why didn’t the Service just do an environmental assessment in the first place?) For that reason, the dissent argues, any procedural error by the agency was harmless.

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This is an example of why  Forest Service people sometimes think “litigation is a crapshoot”, as my colleague JR was known to say.  From a Sierra Club piece:

The Court held that “The Forest Service asks us to adopt a view of categorical exclusions that will swallow the protections of NEPA. We decline to do such violence to NEPA’s procedural safeguards.” (Court decision at p. 25). As the Court explained: “when an agency applies CEs in a way that circumvents NEPA’s procedural requirements and renders the environmental impact of a proposed action unknown, the purpose of the exclusions is undermined. That is the case here.” (Court decision at p. 24).

Just think about it.. Judge A says “0 plus 0 equals zero”; I say restoration is by definition positive, so the sum is >0, and the Appeals judges- I think do a bit of over-hyping (is that their usual kind of language?)- “do violence to NEPA’s procedural safeguards,””swallowing the protections”- I’d argue that using the restoration CE might regurgitate a protection or two.

Do they think Mueller was “doing violence” by agreeing with the FS? Or was she just “promoting” violence?

Anyway, back to Farber’s piece:

The dissent doesn’t have a bad argument, but there are some differences between what the agency did and the environmental assessment process that could be significant. The Service did solicit public input, but the regulations governing environmental assessments require fuller opportunities to participate. Instead, “agencies shall involve the public, State, Tribal, and local governments, relevant agencies, and any applicants, to the extent practicable in preparing environmental assessments.” Asking the public whether it agrees with use of a CE isn’t the same as involving them along with governments at all levels in the preparing an assessment.

Yet according to the Courthouse News article,

During the public comment period that followed, numerous environmental groups, nearby towns and government agencies objected to the project.

It sounds like the public involvement process was similar to that of an EA in that respect (without looking at the documents).  Here’s what Dan brought up in his email:

In terms of the harmless error doctrine, the idea is that you violated the proper procedure but that it didn’t affect the outcome — no harm, no foul.  The question I raised is whether we can be sure of that. In response to one of your other questions, we do know (as I said in the post) that there were a lot of comments filed. But were they as detailed as the commenters would have offered in an environmental assessment?  After all, they were really only designed to get the Forest Service to agree to at least consider the environmental consequences rather than doing a categorical exclusion.  If there had done an environmental assessment, would the state or federal fish & wildlife people have been consulted?

That’s a really interesting take. Every CE public comments I’ve read (that being, when people don’t like the project) have been more general than “does this CE fit”? I’ve appended the summary of the response to comments below.

In fact, the agency did originally say an environmental assessment was needed, but the company complained and the agency quickly reversed itself.  (Is it a coincidence that this was the Trump Administration?) Maybe the agency should have stuck with its original position rather than shortcutting the process in its haste to approve the mining project.

Remember the 9th Circuit judge (appointed by Obama) agreed with the FS that it was a  legitimate approach.  I’m calling “unnecessary invoking of Trump” here.

In addition, an environmental assessment would have required a  Finding of No Significant Impact (FONSI), which would also have had to discuss alternatives to the proposal.  None of the judges cites any discussion of alternatives by the agency.  We don’t know if there were other, less sensitive, locations that might have been used. If there had been an environmental assessment, the agency would have had to discuss that.

This is exploration.. not a final plan.  It could well not be economic to extract there or there might not be any gold.  It makes sense to me to look at alternatives when an actual mine is proposed.  Exploration to me is mostly collecting information that is useful in preparing environmental documents and .. there is a CE for that.

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I think this illustrates a couple of things.. how judges can disagree, how some of them might not be able to keep up with NEPA at this point in time. My own experience with industry is that they did not want us to use available CEs because if it’s going to be litigated, then there’s better documentation and it’s safer. Or so the timber industry individual said, and so our OGC folks told us. If it hadn’t been for the appeal, the two CEs would have worked.

I also think Dan’s comment here is of interest, when do the facts of the case matter, and when is the idea that applying the law to this case would lead to some kind of generic CE-piling

In terms of piling up CEs, if the Forest Service’s theory was right, it wouldn’t just apply to this case.  It could potentially give agencies the power to use a bunch of CEs, shortcut the normal procedures for environmental assessment, and then claim that even though they didn’t used the required process, it was all o.k. in the end.

But of course all this is moot with the new amendments to NEPA.

You may be right that this is a situation where there couldn’t possibly have been an environmental impact, but then you wonder why there was so much opposition from the Sierra Club and others. 

My experience is that slowing a project, step by laborious legal step, is a strategy to stopping it.  I’d guess that this isn’t about the exploratory wells at all but about making an inhospitable environment for the developers.  I doubt that if the FS does an EA, that there will be no further litigation.  The company can look uphill to possible litigation on the EA, an EIS for the mine, litigation, appeal court rulings,  and so on.  Maybe the next Admin will refuse to defend the FS for some reason, who knows? With current interest rates, this degree of uncertainty would make companies (and investors) wary.

If we project this onto renewable energy projects, solar, wind and transmission may be better off because there is no exploratory stage, as with geothermal. Anything mining related will have trouble, I predict, even strategic minerals.

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Here’s the response to comments:

PUBLIC INVOLVEMENT
This action was originally listed as a proposal on the Inyo National Forest Schedule of Proposed Actions (SOPA) and updated periodically during the analysis. The project was first published in the SOPA on January 1, 2021. Public scoping was opened on April 8, 2021 and closed on May 13, 2021, which included a one-week extension of the original scoping period. Scoping letters were mailed to one address and electronic delivery was made to another 37 project subscribers through GovDelivery. Comments were collected online in the Comment Analysis and Response Application as well as through hardcopy, and email. In response to public requests, the Responsible Official decided to extent the scoping period by one week, and notified the public with a news release and email to the original email list.
The comments received expressed concerns on a number of subjects that included potential impacts to tourism, wildlife, cultural resources, water quality and recreation which was primarily about the fishery on Hot Creek. Comments also addressed geothermal and seismic activity, air quality, noise and light pollution. Technical studies completed in response to comments include KORE Long Valley Exploration Sage‐Grouse Lek Baseline Noise Monitoring and Drilling Noise Analysis; and Hydrogeologic Evaluation. Additional project design features and/or mitigations measures were also added to the plan of operation. These include:
• Sound barriers for equipment to reduce noise that might affect sage grouse.
• Shielded and directed lighting to limit potential light pollution.
• Air quality permits, if required, to be obtained through the Great Basin Air Quality
Management District
• Operator is responsible for immediate repairs of any, and all damages to roads, structures,
and improvements, which result from the operations.
• Noxious weeds will be controlled.

Most of the public comments associated this exploration drilling project with the development of a  long-term open pit mine and processing facility, which has not been proposed. The purpose of a  mineral exploration project is to assess the potential for mineral concentration at a volume that would be economically feasible to produce and does not automatically lead to an actual mine. An application has not been submitted or proposed for a mineral extraction project and if that were to occur, that application would be processed as a separate project.

 

The latest and greatest NEPA requirements

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Image: Scout Environmental

For any NEPA nerds out there, the last few years have seen an unprecedented tug-of-war over the law’s requirements.  In 2020, the Trump Administration put its stamp on the CEQ regulations implementing NEPA, the first substantial editing of its procedural requirements since 1978.  Upon taking office, the Biden Administration began to undo many of the changes.  On October 7, 2021, CEQ finalized the first phase of its changes to the 2020 Regulations, in which the agency made a handful of targeted revisions.  On June 3, 2023, President Biden signed into law the Fiscal Responsibility Act of 2023 (FRA), which made a number of changes in the law itself, summarized here as follows:

  • Codify that environmental impact statements should include discussion of reasonably foreseeable effects of a proposed action, reasonably foreseeable effects that cannot be avoided, and a reasonable range of alternatives to the proposed action. (Sec. 102(2)(C); 42 U.S.C. § 4332(2)(C)).
  • Clarify requirements for determining whether to prepare an environmental document and the appropriate level of NEPA review. (Sec. 106; 42 U.S.C. § 4336).
  • Clarify the roles and responsibilities of lead agencies and cooperating agencies, including designation of such agencies. (Sec. 107(a); 42 U.S.C. § 4336a(a)).
  • Promote development of a single environmental document. (Sec. 107(b); 42 U.S.C. § 4336a(b)).
  • Set page limits and deadlines for environmental impact statements and environmental assessments. (Sec. 107(e) and (g); 42 U.S.C. § 4336a(e) and (g)).
  • Direct agencies to develop procedures for how, under Federal agency supervision, project sponsors may prepare environmental assessments and environmental impact statements. (Sec. 107(f); 42 U.S.C. § 4336a(f)).
  • Provide time lengths and circumstances for when agencies can rely on programmatic environmental documents without additional review. (Sec. 108; 42 U.S.C. § 4336b).
  • Establish a process for Federal agencies to use another agency’s categorical exclusions. (Sec. 109; 42 U.S.C. § 4336c).
  • Require CEQ to conduct a study of online and digital technologies to help provide for efficient reviews and improve public accessibility and transparency. (Sec. 110; 42 U.S.C. § 4336d).
  • Define terms used in NEPA, including cooperating agency, environmental document, lead agency, major Federal action, participating Federal agency, programmatic environmental document, and special expertise. (Sec. 111; 42 U.S.C. § 4336e).

On July 31, 2023, CEQ published proposed Phase 2 Revisions to the agency’s NEPA implementing regulations.   On May 1, 2024, the Council on Environmental Quality (CEQ) published its final Bipartisan Permitting Reform Implementation Rule (Final Rule).  These will be the NEPA requirements for the foreseeable future (that would be until January, 2025 anyway).  The Federal Register Notice with the final regulations may be found here.

Nossaman is providing a series of reviews of various aspects of the changes that have been made.  They provided this initial overview of what they think is noteworthy (their perspective seems usually be that of a private party):

  • Changes in the definition of “major federal action”;
  • Changes to the way federal agencies approach NEPA’s threshold question of whether the effects of a major federal action are “significant”;
  • Codifying environmental justice and climate change as among the effects that must be examined during the NEPA process;
  • Updated requirements relating to public engagement;
  • Codification of CEQ’s 2023 greenhouse gas guidance;
  • Additional flexibility for federal agencies to establish new categorical exclusions;
  • Codification of CEQ’s longstanding practice of relying on mitigated findings of no significant impact (FONSI);
  • Providing clarity on the requirements for mitigation to form the basis of a mitigated FONSI;
  • Removal of language added by the 2020 Regulations that sought to limit the ability of third parties to challenge NEPA determinations; and
  • Adoption of provisions intended to speed the NEPA review process.

The second installment, discussing the first two bullets, is found here (others will follow).  One of the topics it addresses is the criteria for “significance” that would require an EIS.  The new regulation mostly affirms past practices, but it explicitly recognizes a situation that may arise for “restoration” proposals on public lands.  In determining significance:

Agencies may also consider the extent to which an effect is adverse at some points in time and beneficial in others (for example, in assessing the significance of a habitat restoration action’s effect on a species, an agency may consider both any short-term harm to the species during implementation of the action and any benefit to the same species once the action is complete).  However, agencies shall not offset an action’s adverse effects with other beneficial effects to determine significance …

The Preamble warns:

In some circumstances, an effect may be significant due to the harm during one period of time regardless of the benefit at another.  For example, if implementation of a habitat restoration action may extirpate a species from the area, then an agency could not reasonably rely on long-term habitat improvements resulting from the action to determine that the overall effect to the species is not significant.

(I would like to say this is just an extreme example to make the point that if short term effects may be significant, you can’t discount them based on long-term benefits to avoid preparing an EIS.  However, they follow this with a comparison to mitigation, where it IS possible to offset adverse effects with beneficial mitigation to the point that they are no longer significant.)

Forest Legacy 2024 Funded Projects… and Using the Climate and Economic Justice Screening Tool

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The Wasatch Back Forest Conservation Project received funding in 2024 through the Forest Legacy Program, conserving 8,588 acres just 25 miles from Salt Lake City, UT. (Photo by the Utah Division of Forestry, Fire & State Lands)

Folks have sent me some articles about the Chief’s testimony last week on the budget. From what I’ve heard and the stories, Congressfolk don’t seem as interested as retirees (including Dave Mertz and I, as well as others)  in the Keystone Agreements and exactly where the funding is going, producing annual reports with details and so on.  We were told “you can FOIA it” and my usual sources of info have dried up.

I’ve pointed out that we have nice reports on GAOA funding and where it goes, and Forest Legacy Funding via LWCF (Land and Water Conservation Fund). So my hypothesis is that it’s important to be transparent so that Congress continues to provide funding. The Keystone Agreements are conceivably one and done, so maybe that is why there’s so little perceived need for reporting or accountability? Or maybe the funding is going towards more capacity-building or planning so it’s harder to describe any outcomes or outputs. Or maybe it’s all there somewhere on a website and I missed it.

Anyway, back to Forest Legacy. Their site shows the specifics of each project, how many acres, partners and why each particular chunk of land is important.

The press release refers to “conserving” 168K acres of forestland. I still wonder whether conservation is defined differently between USDA and Interior. If not, then “conservation leases” could include (sustainable) timber harvest.

USDA’s Forest Service is providing more than $154 million through its Forest Legacy Program for 26 projects to conserve working forests that support rural economies in 17 states. This conservation work is made possible by more than $84 million from the Land and Water Conservation Fund and nearly $70 million from President Biden’s Inflation Reduction Act – the largest climate investment in history and part of the Investing in America agenda.

Through the Forest Legacy Program, States work with local communities to identify private forestlands and develop proposals to conserve these lands as forests for their values as places for recreation, as wildlife habitat, and as sustainable sources of wood and other forest products. The Forest Service then selects the top proposals for funding through an entirely voluntary competitive process and provides grant funding to States. Some of this land will stay in private ownership and will be permanently protected and conserved as forests, while States will purchase other parcels to be managed as public land.

The Forest Legacy Program is also part of President Biden’s Justice40 Initiative, which sets the goal that 40% of the overall benefits of certain federal investments flow to disadvantaged communities that are marginalized by underinvestment and overburdened by pollution. Communities around the nation depend on forests, and the effort to conserve private forestlands will benefit Tribal Nations and other disadvantaged communities. Nearly 50% of these investments will go to conserving forests near disadvantaged communities identified by the Climate and Economic Justice Screening Tool.

But the Screening Tool doesn’t just address disadvantaged folk and pollution- so the policy and the tool don’t seem to match.

You’ll remember that I posted before here and here about the Screening Tool and its questionable protocols and data sources.

A 30-meter resolution model projecting the wildfire exposure for any specific location in the contiguous U.S., today and with future climate change. The risk of wildfire is calculated from inputs associated with fire fuels, weather, human influence, and fire movement. The risk does not consider property value.
Used in: Climate change category
Responsible party: First Street Foundation
Source: Climate Risk Data Access from 2022
Available for: All contiguous U.S. states and the District of Columbia

Both flood and fire risk take into account projected climate change- I couldn’t figure out which SSP is mapped in the CEQ EJ map. I found this update interesting from last year interesting..

The model update includes the migration from Representative Concentration Pathways (RCP) to Shared Socioeconomic Pathways (SSP), which allows for more precise assessments based on different climate scenarios. The Foundation is also expanding the flood and wind modeling to include multiple pathways, such as SSP 2-4.5 and SSP 5-8.5. Additional SSP pathways for wildfire and extreme heat scenarios are being developed for future releases this year.

I wonder whether new information about new mitigation, fuel treatment projects, etc. would show up in updates of the tool? I wonder whether it is updated? I think it’s a great idea to map the disadvantaged, but some of the criteria (not to speak of the ways the numbers are calculated) seem questionable. Given that poor people are less likely to be able to respond to any disasters, why not focus on that? And if the examples in the Forest Legacy are any indications, folks on the ground are quite capable of describing how their projects partner with Native Americans or help the poor.

As it turns out, the project scoring guide for FY 24 did not mention the maps

Benefits of projects for underserved communities and environmental justice initiatives should be highlighted where applicable. For example, benefits can be discussed within economic
benefits, water, cultural, public access, or climate resilience. Benefits for underserved communities can also be discussed in the Strategic section. Underserved communities: “underserved communities” refers to populations sharing a particular characteristic, as well as geographic communities, that have been historically underserved, marginalized, and adversely affected by persistent poverty or inequality (pursuant to Executive Order 13985, Advancing Racial Equity and Support for Underserved Communities Through the Federal Government). Namely, these are Black, Latino, and Indigenous and Native American persons, Asian Americans and Pacific Islanders and other persons of color; members of religious minorities; lesbian, gay, bisexual, transgender, and
queer (LGBTQ+) persons; persons with disabilities; persons who live in rural areas; and persons otherwise adversely affected by persistent poverty or inequality

From the “good government” perspective, I wonder whether a narrative addressed to those concerns may actually have better information than an un-updated map with unknown data quality. The best science and all that. It also sounds like looking it up on the EJ maps was an afterthought, and it turned out that the more local information actually led to “nearly 50%” being on the map.

But all agencies are apparently supposed to use this tool, according to the Q&A

The Council on Environmental Quality (CEQ), the Office of Management and Budget (OMB), and the Climate Policy Office (CPO) released the Justice40 Interim Implementation Guidance on July 20, 2021. It directed agencies to develop interim definitions of disadvantaged communities. Agencies used their interim definitions during the tool’s beta phase. Agencies will now transition to using version 1.0 of the tool to geographically identify disadvantaged communities.

So I think most people are trying to do good things, and we disagree about how best to go about it. But using ungroundtruthed data and then telling agencies that they must use it instead of what they know in the real world seems problematic to me. There seems to be a tendency to centralize decisions based on broadscale “data” (the Satellite Gaze) and privileging that over local information. Often there is no transparent effort to ground-truth these maps. That would involve intentionally requesting feedback, posting the feedback, and discussing how that feedback was used to improve the models or data collection methodologies behind the map.

Choosing those sources of data and those manipulations can also centralize political power and decision-making, either in the name of efficiency or the name of “science.” What is the best data- for a given purpose, though, is ultimately a political decision. And just because data is available doesn’t mean that it’s good or relevant.

Finally, let’s circle back to the Keystone Agreements. Must they follow the Justice40 Initiative? How will we know if they do if the project data isn’t available?

How Overseas Visitors Can Help Steward Our National Parks: PERC Report

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This report is from PERC from last December. I just visited a few National Parks, which reminded me to post it.

Dozens of the world’s most high-profile national park systems charge overseas visitors more than locals. Adopting a surcharge for visitors from abroad at U.S. national parks could significantly increase revenue, providing parks with more funding to address maintenance and improve visitor experience.

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A Higher Level of Stewardship

In dozens of countries, park visitors from abroad pay more than locals for entry.6 A higher charge levied on foreign visitors reflects their general ability and willingness to pay more. After all, the price of admission at a national park is generally a fraction of overall trip costs for visitors, especially those from abroad.7 Asking international tourists who do not support U.S. national parks through taxes to pay a little more to see them is not only reasonable, it would also provide additional resources to improve the stewardship of our “crown jewels.”

Moreover, formal evidence suggests that demand to visit U.S. national parks—in particular the highest-profile destinations—is not sensitive to admission prices, particularly for overseas visitors. One study published in 2014 found that the price of gasoline affects national park visitation more than entry fees do.8 Another study, from 2017, estimated that raising the vehicle entry fee at Yellowstone National Park by more than double—from $30 to $70—would decrease visitation from foreign visitors by a mere 0.07 percent.9 A negligible dip would be logical given that the average overseas visitor was already spending an estimated total of $4,484 on their trip. In that context, increasing fees by a mere $40 would barely register in a traveler’s budget.

The current fee system for national parks in the United States lacks nuance, with most visitors paying a flat weekly fee that permits access for all passengers in a private vehicle.10 As part of this relatively blunt system, standard overseas visitors pay the same price as U.S. citizens and residents. Or put another way, locals enjoy no discount when visiting their home-nation parks. Often, Americans pay even more than foreign visitors to support national parks because, in addition to paying entry fees, most U.S. residents pay income taxes, which also partially support parks. Approximately $20 per U.S. taxpayer goes toward the National Park Service budget—each and every year, regardless of whether those Americans visit a national park.11 Asking overseas tourists who are not a part of the tax base to pay a little bit more to see remarkable sites in need of stewardship seems not only logical but prudent.

As many U.S. parks are facing record visitation and struggling through funding shortfalls, the idea of charging international visitors more than domestic ones has gained traction. The National Park System Advisory Board has suggested that differential pricing based on residency could be a way to increase park revenue, noting the success of that strategy in other nations.12 Additionally, the late Sen. Mike Enzi (R-Wyo.) pushed in 2019 to legislatively implement a surcharge for overseas visitors to help fund national parks by raising tourist travel and visa fees by $16 and $25, respectively.13

It seems like a pretty common-sense idea to me, what do you think?