There Goes The Big Picture...
New Forest Plan Rule Nukes NEPA
By Brodie Farquhar, 12-12-06
 | |
|
The U.S. Forest Service finalized rules Tuesday, that will allow forest officials to ignore the National Environmental Policy Act (NEPA) when amending or writing new forest management plans.
Under NEPA, public involvement and environmental analyses are required whenever the Forest Service undertakes changes to forest management plans - a process that occurs for each U.S. Forest every 15 years. However, under this new rule, any update, or significant change, would not be subject to NEPA review.
The Forest Service press release announced that “the environmental review has documented that writing management plans has no effect on the environment, which qualifies the individual plans of each National Forest for categorical exclusion from individual study under the National Environmental Policy Act.”
“This is what lame-duck administrations do when they get the tar beaten out of them,” said Andy Stahl, executive director for Forest Service Employees for Environmental Ethics, based in Oregon. “They (the Bush administration) won’t be able to get anything through Congress, so all that’s left is administrative rulings,” said Stahl – much as President Clinton did when faced with a Congress controlled by the opposing party.
During the public comment period for the new rule, Stahl testified that the proposed action was illegal. “Now we’ll go tell a judge the same thing,” he said.
Stahl will have company.
"In recent years, the Forest Service has created and widely used a number of categorical exclusions that prevent NEPA review for individual timber sales,” said Tim Preso, an EarthJustice attorney based in Bozeman, Montana. “Excluding the forest plans themselves from NEPA review means that a great many of the agency's actions will never receive a hard look at all, at any level of forest management, much less involve the public in a meaningful way."
Preso said the finalized USFS rule has been in the works since 2005.
“I’m confident this will be challenged,” he said dryly.
NEPA critics
U.S. Forest Service Chief Dale Bosworth and Undersecretary of Agriculture Mark Rey have long complained that NEPA causes lengthy delays in forest planning, timber sales and forest thinning to prevent forest fires – something they’ve tagged as “analysis paralysis.” The USFS leaders also complain that they’re always getting sued by environmental groups using NEPA, causing expensive delays.
"Too frequently, these processes combine to keep on-the-ground work from ever actually being accomplished, even very small projects or projects of great environmental merit," Bosworth says. "The inability to complete projects can have a detrimental effect on the land."
Aaron Everett, a spokesman for the Black Hills Forest Resource Association, called the current NEPA process a disservice to the public. He said the Forest Service tends to adopt a “siege mentality” when conservationists or logging communities start seeking changes in timber sales or forest plans.
“It doesn’t lend itself to a very fluid planning process,” said Everett, who witnessed the Black Hills National Forest take 16 years to work through a new forest plan.
D.C. response
"Changes in fundamental forest policy should be made with the cautious precision of a whittling knife. Instead, the Forest Service is slashing forest laws with a high-powered chain saw," said Rep. Nick J. Rahall (D-WV), Chairman-elect of the House Committee on Resources. "This new regulation is just the latest action. The result of this new regulation is that the people will have even less ability to know about, let alone weigh in on, management of their U.S. Forest lands," explained Rahall.
His predecessor, Rep. Richard Pombo (R-CA) was a harsh critic of NEPA, convening public hearings around the country this past year, where the vast majority of speakers were critical of NEPA. Rep. Barbara Cubin (R-WY), a member of the above committee, is a long-term critic of NEPA, saying a few years ago that "While this law was enacted in l973 with the best of intentions, namely to require environmental review of major federal actions, it has been used since that time by opponents of multiple use and development to block and delay grazing, timbering, oil and gas activity, water projects, and private property development. NEPA has cost the government, private industry, and individuals literally billions of dollars for massive, endless Environmental Impact Statements, assessments, and countless other studies, and it is a law in dire need of reform.”
Big picture?
Proponents of the new rule argue that development of management plans must be streamlined and that NEPA reviews would be better conducted on individual projects. But Rahall noted that excluding forest management plans from NEPA would result in an inability to evaluate cumulative effects on evolving land management decisions.
“These long-term forest plans – not site-specific project decisions -- decide which areas will be open to logging, off-road vehicle use, back-country recreation, and other uses,” said EarthJustice’s Preso. “Also, these plans offer the only opportunity to take a 'big picture' look at how the entire forest is being managed, instead of the localized look that focuses on a project area alone. That 'big picture' look is critical for a number of wide-ranging wildlife species that depend on the national forests for their survival, including grizzly bears, lynx and elk.”
Dick Dolan, conservation director for the Greater Yellowstone Coalition, said the concept that writing a plan has no environmental impact “is just not true and Pollyannish at best.” He too is concerned that there will be no “big picture” examinations of what is happening at the landscape, ecology scale.
“I know that people can feel there is analysis paralysis, but there’s an ever growing effort by conservation groups to be more collaborative up front, rather than run off to court at the drop of a hat,” said Dolan.
Like this story? Get more! Sign up for our free newsletters.
Comments
U.S. Supreme Court
OHIO FORESTRY ASSOCIATION, INC. v. SIERRACLUB ETAL . CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
No. 97-16.
Argued February 25, 1998 -
Decided May 18, 1998
Pursuant to the National Forest Management Act of 1976 (NFMA), the United States Forest Service developed a Land and Resource Management Plan (Plan) for Ohio's Wayne National Forest. Although the Plan makes logging in the forest more likely-it sets logging goals, selects the areas suited to timber production, and determines which probable methods of timber harvest are appropriate-it does not itself authorize the cutting of any trees. Before the Service can permit logging, the NFMA and applicable regulations require it to: (a) propose a particular site and specific harvesting method, (b) ensure that the project is consistent with the Plan, (c) provide affected parties with notice and an opportunity to be heard, (d) conduct an environmental analysis of the project, and (e) make a final decision to permit logging, which affected persons may challenge in administrative and court appeals. Furthermore, the Service must revise the Plan as appropriate. When the Plan was first proposed, the Sierra Club and another environmental organization (collectively Sierra Club) pursued various administrative remedies to bring about the Plan's modification, and then brought this suit challenging the Plan's lawfulness on the ground that it permits too much logging and too much clearcutting. The District Court granted the Forest Service summary judgment, but the Sixth Circuit reversed. The latter court found the dispute justiciable because, inter alia, it was "ripe for review" and held that the Plan violated the NFMA.
Held: This dispute is not justiciable, because it is not ripe for court review. Pp. 5-12.
(a) In deciding whether an agency decision is ripe, this Court has examined the fitness of the particular issues for judicial decision and the hardship to the parties of withholding review. Abbott Laboratories v. Gardner, 387 U.S. 136, 149 . Such an examination in this case reveals that the relevant factors, taken together, foreclose court review. First, withholding review will not cause the plaintiffs significant "hardship." Ibid. The challenged Plan provisions do not create adverse effects of a strictly legal kind; for example, they do not establish a legal right to cut trees or abolish any legal authority to object to trees being cut. Cf. United States v. Los Angeles & Salt Lake R. Co., 273 U.S. 299, 309 -310. Nor would delaying review cause the Sierra Club significant practical harm. Given the procedural requirements the Service must observe before it can permit logging, the Sierra Club need not bring its challenge now, but may await a later time when harm is more imminent and certain. Cf. Abbott Laboratories , 387 U.S., at 152 -154. Nor has the Club pointed to any other way in which the Plan could now force it to modify its behavior to avoid future adverse consequences, as, for example, agency regulations can sometimes force immediate compliance through fear of future sanctions. Cf., e.g., id., at 152-153. Second, court review now could interfere with the system that Congress specified for the Forest Service to reach logging decisions. From that agency's perspective, immediate review could hinder its efforts to refine its policies through revision of the Plan or application of the Plan in practice. Cf., e.g., id., at 149. Here, the possibility that further consideration will actually occur before the Plan is implemented is real, not theoretical. Third, the courts would benefit from further factual development of the issues. See Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 82 . Review now would require timeconsuming consideration of the details of an elaborate, technically based Plan, which predicts consequences that may affect many different parcels of land in a variety of ways, and which effects themselves may change over time. That review would have to take place without benefit of the focus that particular logging proposals could provide. And, depending upon the agency's future actions to revise the Plan or modify the expected implementation methods, review now may turn out to have been unnecessary. See FTC v. Standard Oil Co. of Cal., 449 U.S. 232, 242 . Finally, Congress has not specifically provided for preimplementation judicial review of such plans, unlike certain agency rules, cf., e.g., Lujan v. National Wildlife Federation , 497 U.S. 871, 891 , and forest plans are unlike environmental impact statements prepared pursuant to the National Environmental Policy Act of 1969 because claims involving such statements can never get any riper. Pp. 5-11.
(b) The Court cannot consider the Sierra Club's argument that the Plan will hurt it immediately in many ways not yet mentioned. That argument makes its first appearance in this Court in the briefs on the merits and is, therefore, not fairly presented. Pp. 11-12.
105 F. 3d 248, vacated and remanded.
BREYER , J., delivered the opinion for a unanimous Court.
All the majority staff of congressional committees who are about to lose their jobs will go to work for the agency the committee had jurisdiction over. With them goes the institutional memory of law and administrative rule, who to deal with in the Administration, and the new majority will now spend time spinning legislative wheels trying to move the agencies in the direction their new majority and ideas would like. The minority still owns the White House, and moving them and their minions will not happen for years or if at all. What was the Republican majority able to do for their supporters to fix problems with the ESA? Not a thing. And if the new Democrat majority thinks it will institute great change in public land management, the back benchers will soon show you otherwise. Ours is and has been, a government of legal blockades, do-nothing collaboration, and legislative sabotage. That is not about to change because some idealistic newbies have been elected to Congress.
The bureaucrats are not going to change, either. Congress can mandate, cajole, push, whatever, and the rank and file will obfuscate, confuse, and side step as they are wont to do. Business as usual. When they dig deep into landfills, they find garbage that has not changed since it was placed there. In government jobs, that is called seniority. A weenie, in a landfill or in a government job, at 30 years is still recognized as a weenie, just a little more ragged for the years. They do not change.
So, demand change, plan, draw up new management documents, and the only real change that will happen is when the inevitable fire runs through the forest. Many will happen due to lightening, some will be set by the USFS, and others will be arson in origin. They all have the same result: a need for a new plan. hubba hubba. The dance shall begin anew.
Seriously, though, the rank and file of the U.S. Forest Service has changed dramatically in the past 30 years -- most of the timber beasts have retired and/or gone to work for timber companies, replaced by alot of younger people with degrees in biology and recreation management.
Much like the Montana Grinch of Puplic education
leading in becoming its post. ...
That being said, all the huffing and puffing that is going on around about the FS's categorical exclusion for planning fails to look at one critical point - what is the land management plan's "cause" in the "cause-effect" relationship, which is the premise for defining environmental effects? (see 40 CFR 1508.8) (http://www.nepa.gov/nepa/regs/ceq/1508.htm#1508.8) What exactly is the plan "causing" to warrant analysis and disclosure of those effects? Ira's excerpt from the Ohio Forestry Supreme Court decision also points to this weakness in the nay-sayer's argument. Until someone can make a credible case that a land managment plan, which does not authorize any action to occur, actually has on-the-ground effects worth analyzing under NEPA, those criticisms will ring hollow with most people.
For those interested, the official notice is published today in the Federal Register, detailing how the categorical exclusion would (and not be) employed for the revision of a forest plan on each national forest: http://www.fs.fed.us/emc/plan_ce/includes/2006_12_15_Federal_Register_Notice.pdf
The truth is the new Planning Rule, and categorical exclusion (CE, CatEx) for forest plans does not exclude the public from commenting on NEPA decisions. Forest planning falls under the National Forest Management Act, described above by Ira. Forest (or Land Resource Management) planning is intended to be more streamlined and strategic with the recent changes, meaning that those NEPA decisions that include ground-disturbance or involve controverial issues (roadless areas, motorized recreation) will then be tiered from the Plan's general guidance, and deferred to specific projects that would be implemented later, subject to full the NEPA process, draft document (EIS) publication and public review comment period, selection from a number of alternatives (including No Action), and a signed decision for each project (that can then be appealed, reviewed, and -- ultimately -- could be litigated) it the appealant is not satisfied with the results reached at the Forest, Regional, and National levels. The argument that cumulative effects are not adequately disclosed within the new planning process is not exactly true, because this analysis will be conducted, as required, for the decision maker's informed decisions to implement the strategic decision that is ultimately developed, guided by public collaboration, and political and legal feasability (rather than for a proposed action and a number of proposed alternatives that will never be implemented because they're not politically feasible or publicly acceptable).
Finally, it's important to point out that public participation is a component of the new rule for revising forest plans. Instead of the traditional public comment period at the end of the process (upon publication of a draft EIS), forest planning rules now spell out a "Public Collaboration" component of the Adaptive Management process (plan-check-do-act, repeat). Adaptive Management remains a component of revision, even after a decision has been signed; this is accomplished through an ISO 14001 model called an Environmental Management System (or EMS), which includes annual external audits to determine effectiveness and efficiency of each individual forest's environmental program areas. This feeds back into the forest planning process in the form of annual reports and a 5-year Need For Change analysis and resulting plan revision.
The intent is that the more dynamic process for revising forest plans will now take 2-3 years instead of 5-8 years; this will better meet changing science, political climate, and changing public values, and save tax payers' money, that can then be sent to support no-bid contracts in Iraq.
For a detailed, step-by-step explanation of all this, I'd recommend checking out a summary report at: http://pinchot.org/?module=uploads&func=download&fileId=48.
- T
Now, my natural resource moral compass says we cannot live without using them, and using third world trees to build "green" homes, whether it be the lumber, gypboard, paint, copper or plastic plumbing, imported furniture, is morally wrong, if we are using those resources while we "save" ours. A MacMansion, a "blood" diamond on the finger, a "blood" lumber floor or furniture, copper from dollar a day labor, or affordable housing using the most inexpensive of materials, but still of third world origin, is morally wrong to me if our preferred use is to burn or save ours.
Do any of the land use planning processes have a world view? Is the welfare of blue collar America included? I view public land use at this time as part of the trade off: Imported goods for American jobs in the name of "forest protection."
Is there any idea of what the WFU decision will do to atmospheric particulate loads? I view that decision as letting it burn rather than allow logging. Pure and simple. Fuel reduction by fire. If that is the type of decision the USFS now makes sans the "timber beasts", why do I need to embrace any part of their process except express my opinion that it would take five chili feeds for any of those planners, decision makers, to see daylight.
We have just gone through a 50 year windstorm here. Trees down everywhere. I expect no salvage logging. I expect no demand for salvage logging. The first reason is that there are no longer any sawmills or veneer plants that can use a log over 30" on the big end. Since the dependable log supply is from short rotation industrial forests, the mills are now configured to use those size logs. From the logging equipment to the barkers, saws, computer programs, to the way homes are now constructed out of engineered beams, trusses, chip boards, all come from small diameter logs. THERE IS ALMOST NO MARKET FOR OLD GROWTH LOGS, OR COASTAL FAST GROWTH LOGS OF 30" or more. No mills to cut them. The public policy is for them to rot when they die, even in windstorm events. The installed capacity to mill them has devolved to meet the public demand. So, since ancient trees is the goal, understory is not logged in older forests, and those have become ladder fuels. The public lands planted into thriving young forest get no thinning or tree spacing, and now all compete for water and nutrients, stressing every tree, and opening all up to insect mortality, adding to the fuel loads. Eco-Luddites, in the NGO's and in the USFS, run the show, make the administrative rules, and whenever something they don't like is proposed, rally their troops to political action and head to court where they have carefully judge shopped for an appointee who agrees with their philosophy and willingly legislates from the bench. Again, my opinion.
I sort of like being the old curmudgeon now. I have the years and experience that the kids don't, and I know where a lot of bodies are buried in the USFS debate. They call that institutional memory, sorely lacking in a USFS purged of its "timber beasts". Reinventing the wheel is taking a long time, and the job is not getting done. It's an Eco-Luddite thing. We will wait a long time for them to figure it out, as new science, new discovery, points out the frailties of their New Deal.
The difficulty with public land management is navigating (1) the morass of environmental laws that we, the citizens of the U.S., have passed and (2) the snake pit of public opinion. Either one can kill a reasonable and sensible proposal to address what most 'common sense' people would say is a problem to be addressed. However, as you point out, the attitude of letting judges make a resource decision have been prevalent and in some cases, successful. How do we move past that? Why does the general populace tend to believe what the Eco-Luddites write? What message is not being delivered to balance the debate?
Those questions are not effectively handled in the NEPA process, which is the topic that Brodie wrote about initially. Anyone who believes that these qualitative debates are handled effectively within a process that is set up to address the analysis and disclosure of effects from government action is severely misguided. What has been debated here in these comments is something more than that, and to not recognize that and take appropriate action to initiate constructive dialog about whether we use our own resources or ship our environmental problems to the international community is a failure in basic human morality and ethics.
Who is going to engage in this conversation?
So, we can well end up with a Forest Plan with an EIS that tells us a putative cumulative effects of all supposed actions in the future. Yet it is unclear at best whether the plan itself really causes the numerous actions that will occur in the next 10-15 years.
Rep. Rahall appears curious about the idea that w/o an EIS accompanying a forest plan we will not get the big picture or cumulative effects. Yet, the case law out there shows that National Forest level cumulative effects hardly ever answer what is needed. Oftentimes the cumulative effects on fish or wildlife species is driven by species' home range(s), which more often than not are much different than a National Forest planning area. Commonly the range of a given wildlife species is much larger than a single national forest. All of these little details are solvable, but the basic question still remains whether these plans really cause any action to occur. And on that question the Supreme Court has spoken, and the score was 9-0.
What is even more interesting is not only did the unanimous 1998 Supreme Court decision define the relevancy of plans to land management considerations, this same viewpoint was replicated again by a unanimous Supreme Court decision in 2004 (SUWA vs. Norton)...and yet, still we read about how the Forest Service is going to rape and pillage the land because the public is being cut out of the process. Such claims are from those who refuse to read the available material and would rather follow the "Pied Piper" of their choice.
That said, the most interesting of new science concerning how we got to here from way back there is the book "TWILIGHT OF THE MAMMOTHS: ICE AGE EXTINCTIONS AND THE REWILDING OF AMERICA" by Dr. Paul S. Martin, U of Cal. Press. Then read M. Kat Anderson's TENDING THE WILD. I think she is out of U of Cal Davis....both books deal with humans as primary ecological and environmental shapers throughout their time on earth. All the wilderness you want to experience is, in fact, land shaped by our predecessors, containing species allowed to exist by man for thousands of year. What we are doing to now is new, and never before experienced by that land and its species. Wilderness actually is an experiment, whereby the principal use is non-use. And, if the current fire regimes are any indication, not a very enhancing use. Unless, of course, an asbestos like geology devoid of vegetation is the preferred state.
So, if you don't buy into man as the historical and principal selective agent in nature, for as long as he has existed on the planet, you can buy into wilderness. However, since any specie's tenuous hold on a place in the ecosystem is fatally fluid, and determined by random events, there is no preservation of species involved in a place devoid of human influence. They get to go extinct on their own merit on a planet that has been shaped by human activity in all other areas. When humans no longer determine which species they prefer, which landscapes to shape, we are done. I don't think USFS or BLM planning looks at things quite like that. But I will tell you that WFU as a management plan in the near term is not people friendly, even though in the long term, it will bring about a pre-European vegetative management regime....if you have a thousand years or so to get the job done!!!! Somehow I don't think rank and file humans want to wait that long. They are an impatient lot, those rank and file folks. Look at their lost interest in about anything after no more than a decade.
I guess I just think the old school foresters who shaped the Clinton Forest Plan to reflect their new forestry views are now the old school foresters saddled with old science. All the stuff about how some lichen fixes some trace element in the top of a tree does not recognize the Alley Oop killed the last mammoth whose hair once harbored that lichen, or any other human influences over a very long period of time that has determined what they are looking at today in relic forests. Dr. Bonnicksen has really explained how that all has worked, and how forests migrate with changes in geology and weather. Too much new thought out there to have this old timer accepting stuff that intuitively does not compute. Me and old Descartes: I doubt therefore I am. I am doubting a whole lot of what the NGOs, the Jerry Franklin Foresters, the social engineers of the USFS, have held up as truth for the last 30 years. In that I include a lot of bad planning, planning that is neither relevant nor timely. bear bait