Public Lands Watch: Forest Service proposes NEPA regulatory revisions

Forest Service proposes revisions to NEPA regulations to increase exemptions for logging and other projects

The National Environmental Policy Act (NEPA) has long been a lightning rod for debates over public land management.  NEPA requires federal agencies to fully analyze and publicly disclose the environmental impacts of proposed major federal actions that significantly affect the environment, including analysis of a reasonable range of alternatives and a response to public comments.  The adequacy of an agency’s NEPA analysis can be challenged in court, though NEPA does not set any substantive standards for agency decisionmaking – as long as the analysis is adequate, the agency can proceed with whatever proposal it wishes (subject to compliance with other laws, of course).

One long smoldering debate over management on National Forests is the use of NEPA processes – both participating in the agency’s NEPA process itself, as well as subsequent litigation – by environmental groups who believe that proposed Forest Service management activities are harmful to the environment.  In particular, NEPA lawsuits have been a flashpoint for debates over logging on areas after fires, insect outbreaks, wind and ice throw mortality have occurred (salvage logging), or the use of logging as part of efforts to reduce fuel loads in forests.  The agency has regularly argued that the costs of complying with NEPA mandates as well as the threat and reality of litigation use up precious agency resources and delay needed land management.  Environmental groups respond that NEPA litigation is essential to ensure that the agency is both complying with the statutes protecting environmental resources on the National Forests, and listening to the public when it makes land management decisions.

Over the past 20 years or so, Congress has trimmed back NEPA compliance obligations for a range of Forest Service management activities in the context of efforts to reduce fire risks and improve forest health – though some research and many activists contest whether logging indeed facilitates those goals and whether the agency’s activities under those NEPA exemptions actually advance those goals.

Now the Forest Service is proposing revisions to its NEPA regulations that could substantially reduce the use of NEPA for a range of agency management projects.  Each individual federal agency is required to issue its own NEPA regulations to implement the statute – a key purpose of those regulations is to identify the kinds of activities that generally speaking won’t cause significant environmental impacts and therefore don’t require any NEPA analysis – what are called “categorical exclusions.”  Basically, the Forest Service is proposing to allow “ecosystem restoration” projects, including logging, on up to 4,200 acres for any given project without NEPA review, and forest thinning (which can involve forms of logging) on up to 7,300 acres without NEPA review.  These would be substantial increases from current statutory exceptions that cover projects up to 3,000 acres.

You can look at news coverage of the issue here.  The proposed regulations are available here, and the public can comment on the regulations at that same website through  August 12, 2019.

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Eric Biber is a specialist in conservation biology, land-use planning and public lands law. Biber brings technical and legal scholarship to the field of environmental law…

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