Simulation

1

• Simulation 3

2
Historical Background

• Prior to 1992, the Forest Service provided for a
  a post-decision administrative appeals process
  for most agency decisions
• In March of 1992, the Forest Service proposed a
  new regulation that would have eliminated
  post-decision administrative appeals for all
  proposed projects where an Environmental
  Assessment resulted in a finding of no
  significant impact

3

• In response, Congress enacted the Appeals Reform
  Act which required the Forest Service to
  establish an administrative appeals process with
  opportunity for notice and comment
• 36 C.F.R. 215.12(f)
• Categorically exempts from notice, comment and
  appeal Forest Service actions that do not require
  an EA or and EIS under NEPA

4

• In June of 2003, the Forest Service implemented
  the National Environmental Policy Act
  Determination needed for Fire Management
  Activities (Fire CE)
• Created a new categorical exclusion for
• fire rehabilitation activities on less than 4,200
  acres
• Salvage timber sales of 250 acres or less

5

• September 8, 2003 the Forest Service approved
  Burnt Ridge Project allowing for the sale and
  treatment of 238 acres of post-fire forest area
  in the Sequoia National Forest in California
• Forest Service claimed that under the Fire CE the
  project was categorically excluded from
  requirements of documentation in an EA or EIS,
  and thereby excluded from administrative appeal

6
Earth Islands Claim

• They were unable to appeal the timber sale in the
  decision memo because the Forest Service had
  categorically excluded the project from a post
  judgment appeal
• The plain language of the ARA requires an
  administrative appeals process

7
Forest Service Claim

• Categorical exclusions are a result of the
  Secretary's reasonable construction of the
  statute to distinguish between agency actions
  requiring an EA or EIS and projects that lack
  significant individual or cumulative
  environmental impacts

8
Applicable Law

• ARA 322
• Required the Forest Service to establish an
  administrative appeals process with opportunity
  for notice and comment
• NEPA
• Requires that an EA and an EIS must be conducted
  for any federal action that would have
  significant effects on the Environment
• APA and Chevron
• Hard look at agency regulations.
• Courts must examine the statute itself to
  determine whether Congress has spoken directly to
  the precise question
• If the statute is silent or ambiguous with
  respect to the specific issue, the question for
  the court is whether the agencys answer is based
  on a permissible construction of the statute

9
Earth Island v. Ruthenbeck

• Court holds that categorical exclusions which
  exempt Forest Service actions that do not require
  an EA or an EIS under NEPA from notice, comment
  and appeal procedures conflict with the plain
  language of ARA 322
• The (ARA) does not provide for any exclusions or
  exemptions from its requirement that the Forest
  Service provide an administrative appeal for
  decisions implementing Forest Plans
• Invalidates Forest Services categorically
  excluded actions from administrative appeal under
  36 C.F.R. 215.12(f)

10
Implications

• Federal Agencies now must subject most agency
  actions to notice, comment and appeal regardless
  of categorical exclusions
• Federal Agencies can not use the NEPA standards
  to circumvent the administrative appeals process
• More paper and more opportunity for public
  involvment

11
Question 1

• Is the approach of 'categorial exclusions' a
  reasonable (legally) way to reduce the cost of
  making decisions and the time needed to make
  them? If so, why? If not, why not?

12
Categorical Exclusions

• The Forest Service could use categorical
  exclusions.
• Exclude some decisions and actions that are
  environmentally insignificant from an EA or EIS.
• NEPA only requires an EA or EIS for major Federal
  actions significantly affecting the quality of
  the human environment

13
Categorical Exclusions

• But cannot exclude those decisions and actions
  from an appeal.
• The ARA strictly forbids this.
• The Earth Island case held that the Forest
  Service must promulgate regulations that
  preserve administrative appeals for any decisions
  subject to administrative appeal before the
  proposed changes
• Before 1992 an appeal was available for decision
  memos, "decision notices," and "records of
  decision.

14
Reducing Cost

• How can this reduce the cost of making decisions
  and the time needed to make them?
• an EA or an EIS takes time, money, and man power
• Forest Service has a limited amount of resources
• Categorical exclusions could cut done on these
  costs
• If a decision or action in minor in area, time,
  and potential environmental impact, there is no
  need for an EA or EIS.

15
Problem

• An decision may be minor to the Forest Service,
  but important individuals or environmental
  groups.
• For example, the Forest Service could propose to
  cut down one quarter of the trees around a small
  remote lake.
• environmentally insignificant no need for an
  EIS
• but what if someone goes camping there?
• That person may appeal the Forest Services
  decision and lead to a costly law suit

16

• When deciding what is categorically excluded from
  an EA or EIS, the Forest Service may want to
  consider what decisions might be appealed.
• Should do an EA or EIS for a decision that
  potentially could result in a costly appeal

17
NEPA Lawsuits

• actually generates a relatively small volume of
  litigation.
• Out of approximately 50,000 EAs each year, plus
  another 500 draft, final and supplemental EISs
  for the much smaller number of major federal
  actions,
• aggrieved parties typically file about 100 NEPA
  lawsuits per year, representing only 0.2 of the
  actions generating NEPA documents annually.47
• only a few of these suits result in court orders
  blocking government action.
• preliminary injunctive relief was granted in NEPA
  cases only 21 times in 2001 and 2002, and
• permanent injunctions were issued only 28 times
  (often, presumably, in the same case in which
  preliminary injunctive relief had been granted).
• courts ordered a remand of certain issues to the
  federal agency in 33 cases in those two years.
• courts ruled for the defendant agencies 114 times
  during this period,
• and dismissed NEPA cases (in some cases after a
  settlement) in another 139 cases.

18
Question 2

• If you were a general counsel to the Forest
  Service, how would you advise decision makers
  when they are making the critical significant
  effects decision regarding the need for an EA or
  EIS? What legal principles would inform your
  judgment?

19
Significant Effects

• Section 102(2)(C) of NEPA requires an EIS for
  "major Federal actions significantly affecting
  the quality of the human environment." 42 U.S.C.
  4332(2)(C) (1982)
• To show that a proposal will significantly affect
  the human environment, plaintiffs must show a
  proposed project may significantly degrade some
  human environmental factor. Plaintiffs need not
  show that the action will significantly affect
  the environment
• This is a broad definition that leaves agencies
  with a lot of discretion.
• Agencies are given considerable discretion in
  defining the scope of an EIS however, they still
  must consider connected actions in a single EIS
  where the actions collectively produce an
  environmentally significant impact, but when
  looked at individually produce a finding of no
  significant impact (FONSI).

20
Council on Environmental Quality (CEQ) regulations

• Connected actions
• The CEQ regulations require "connected actions"
  to be considered together in a single EIS.
• "Connected actions" are defined as actions that
• (i) Automatically trigger other actions which may
  require environmental impact statements.
• (ii) Cannot or will not proceed unless other
  actions are taken previously or simultaneously.
• (iii) Are interdependent parts of a larger action
  and depend on the larger action for their
  justification.
• Cumulative Actions
• The CEQ regulations also require that "cumulative
  actions" be considered together in a single EIS.
  40 C.F.R 1508.25(a)(2). "Cumulative actions"
  are defined as actions "which when viewed with
  other proposed actions have cumulatively
  significant impacts.

21
Thomas v. Peterson

• Where agency actions are sufficiently related so
  as to be "connected" within the meaning of the
  CEQ regulations, the agency may not escape
  compliance with the regulations by proceeding
  with one action while characterizing the others
  as remote or speculative

22
NEPA and Categorical Exclusions

• NEPA requires agencies to prepare Environmental
  Assessments (EAs) to help them determine whether
  proposed actions will have significant impacts
  warranting preparation of an Environmental Impact
  Statement (EIS)
• Minor federal actions that have not been found to
  have significant effects, either individual or
  cumulatively, are excluded from this process.
• These minor federal actions do not require
  Environmental Assessments (EA), Environmental
  Impact Statements (EIS) analysis under NEPA.

23
New Forest Service Regulations

• December 23, 2005 New Planning Regulations from
  the Forest Service
• Regulations rely upon an Environmental
  Management System for decision making
• 2005 Regulations exempt Forest Plans from EIS
  requirement based upon Ohio Forestry that did not
  allow review of programmatic decisions in
  strategic Forest Plans because they did not
  specifically authorize actions on the ground,
  commitments of staff, or expenditures of funds.
• Only will be ripe for judicial review if find
  significant effects and do EIS unless CE, then
  no judicial review.
• Forest plans chart the strategic direction for
  management of the forest for 10 or more years
  seems pretty significant.

24
Mitigation measures

• Agencies can discuss mitigation measures in an EA
  which, if followed, lead to no significant
  environmental effects, and no EIS.
• These mitigation measures can be used to issue a
  mitigated FONSI on the basis of the EA
  including the proposed mitigation measures
• If these mitigation measures are not implemented,
  the agency is not held accountable. The proposed
  mitigation is not a requirement of the action or
  a commitment by the agency.

25
Advice to decision makers

• In doing an EA, consider cumulative effects and
  connected actions that may require an EIS rather
  than doing each action separately resulting in a
  FONSI. This will ultimately prevent litigation
  as was seen in the Peterson case.
• Significant effects leaves a lot of discretion
  and according to NEPA only significant effects to
  the human environment must be considered.
• Mitigation measures may be included in an EA to
  prevent the need for an EIS, and since NEPA is
  somewhat toothless they need not be carried
  out.
• When possible, use Categorical Exclusions to
  avoid NEPA.
• The Forest Service may be misunderstanding the
  ripeness issue from Ohio Forestry in not
  conducting an EIS on the forest plan. This is
  confusing and it seems that you dont need an EIS
  or NEPA compliance with a forest plan, but to do
  anything in compliance with the forest plan, you
  need to do an EA, and maybe EIS under NEPA.
  Unless it is a CE. This is confusing and may
  have a lot to do with how the Plaintiffs
  addressed the issues.

26
Reviewing the NFMA planning rules 36 CFR Part 219
and the FS list of categorical exclusions, at
what point does the decision by the agency to not
use NEPA become indefensible legally? Is this the
same point as when it becomes indefensible
politically?
Question 3
27
NMFA Planning Rules

• Purpose of 36 CFR Part 219 is to set forth a
  process for developing, adopting, and revising
  land and resource management plans for the
  National Forest System as required by the Forest
  and Rangeland Renewable Resources Planning Act of
  1974
• Among the planning principles enumerated
• (9) Coordination with the land and resource
  planning efforts of other Federal agencies, State
  and local governments, and Indian tribes
• (10) Use of a systematic, interdisciplinary
  approach to ensure coordination and integration
  of planning activities for multiple-use
  management
• (11) Early and frequent public participation

28
219.5 Interdisciplinary Approach

• (1) Assessing the problems and resource use and
  development opportunities associated with
  providing goods and services
• (2) Obtaining the public's views about possible
  decisions
• (3) Implementing the planning coordination
  activities within the Forest Service and with
  local, State and other Federal agencies
• (4) Developing a broad range of alternatives
  which identify the benefits and costs of land and
  resource management according to the planning
  process described in this subpart.
• (5) Developing the land and resource management
  plan and associated environmental impact
  statement required pursuant to the planning
  process
• (6) Presenting to the responsible line officer an
  integrated perspective on land and resource
  management planning and
• (7) Establishing the standards and requirements
  by which planning and management activities will
  be monitored and evaluated.

29
219.6 Public Participation in Planning

• Public comments shall be analyzed according to
  NEPA procedures.
• (c) Public participation activities, as deemed
  appropriate by the responsible line officer,
  shall be used early and often throughout the
  development of plans. Formal public participation
  activities will begin with a notice to the news
  media and other sources
• Discretionary authority is built in to control
  the degree of public participation

30
Recalling the Language Spirit of NEPASec. 102
42 USC 4332.

• (A) utilize a systematic, interdisciplinary
  approach which will insure the integrated use of
  the natural and social sciences and the
  environmental design arts in planning and in
  decision-making which may have an impact on man's
  environment
• (B) identify and develop methods and procedures,
  in consultation with the Council on Environmental
  Quality established by title II of this Act,
  which will insure that presently unquantified
  environmental amenities and values may be given
  appropriate consideration in decision-making
  along with economic and technical considerations

31
Continued

• (C) include in every recommendation or report on
  proposals for legislation and other major Federal
  actions significantly affecting the quality of
  the human environment, a detailed statement by
  the responsible official on --
• (i) the environmental impact of the proposed
  action,
• (ii) any adverse environmental effects which
  cannot be avoided should the proposal be
  implemented,
• (iii) alternatives to the proposed action,
• (iv) the relationship between local short-term
  uses of man's environment and the maintenance and
  enhancement of long-term productivity, and
• (v) any irreversible and irretrievable
  commitments of resources which would be involved
  in the proposed action should it be implemented.
• The NMFA planning language seems to echo the
  language of NEPA in many fundamental ways and
  develop procedures in accordance with its values

32
CEQ Scoping Guidelines for the Forest Service

• (a) As part of the scoping process the lead
  agency shall
• (1) Invite the participation of affected Federal,
  State, and local agencies, any affected Indian
  tribe, the proponent of the action, and other
  interested persons (including those who might not
  be in accord with the action on environmental
  grounds), unless there is a limited exception
  under 1507.3(c). An agency may give notice in
  accordance with 1506.6.
• (2) Determine the scope (1508.25) and the
  significant issues to be analyzed in depth in the
  environmental impact statement.
• (3) Identify and eliminate from detailed study
  the issues which are not significant or which
  have been covered by prior environmental review
  (1506.3), narrowing the discussion of these
  issues in the statement to a brief presentation
  of why they will not have a significant effect on
  the human environment or providing a reference to
  their coverage elsewhere.
• (4) Allocate assignments for preparation of the
  environmental impact statement among the lead and
  cooperating agencies, with the lead agency
  retaining responsibility for the statement.
• (5) Indicate any public environmental assessments
  and other environmental impact statements which
  are being or will be prepared that are related to
  but are not part of the scope of the impact
  statement under consideration.
• (6) Identify other environmental review and
  consultation requirements so the lead and
  cooperating agencies may prepare other required
  analyses and studies concurrently with, and
  integrated with, the environmental impact
  statement as provided in 1502.25.
• (7) Indicate the relationship between the timing
  of the preparation of environmental analyses and
  the agency's tentative planning and
  decisionmaking schedule. (40 CFR 1501.7)

33
Categorical Exclusions

• 31.11 - Categories Established by the Secretary
• -Primarily related to administrative functions
• Ex. Program budget proposals and disbursements
• 31.12 - Categories Established by the Chief
• -Routine administrative, maintenance, and other
  actions that normally do not individually or
  cumulatively have a significant effect on the
  quality of the human environment
• Prohibitions to provide short-term resource
  protection or to protect public health and safety
  Ex. Closing a road to protect bighorn sheep
  during lambing season.
• Repair and maintenance of administrative sites.
  Ex. Mowing lawns at a District office.
• Repair and maintenance of roads, trails, and
  landline boundaries. Ex.Authorizing a user to
  grade, resurface, and clean the culverts of an
  established National Forest System road.

See Sec. 31 of the Forest Service Handbook for
the full list of exclusions
34
More Recent (and more controversial) CEs

• Hazardous Fuels Reduction and Fire Rehabilitation
  Activities
• Fire rehabilitation activities on less than 4,200
  acres
• Tree planting, habitat restoration, repair of
  roads and fences
• Limited Timber Harvests
• Salvage timber sales of 250 acres or less to
  apply to trees severely damaged by fire, ice,
  insects or disease
• Allows incidental removal of trees for temporary
  roads, landings, and skid trails

35
Extraordinary Circumstances

• 2. Resource conditions that should be considered
  in determining whether extraordinary
  circumstances related to the proposed action
  warrant further analysis and documentation in an
  EA or an EIS are
• a. Federally listed threatened or endangered
  species or designated critical habitat, species
  proposed for Federal listing or proposed critical
  habitat, or Forest Service sensitive species.
• b. Flood plains, wetlands, or municipal
  watersheds.
• c. Congressionally designated areas, such as
  wilderness, wilderness study areas, or national
  recreation areas.
• d. Inventoried roadless areas.
• e. Research natural areas.
• f. American Indians and Alaska Native religious
  or cultural sites.
• g. Archaeological sites, or historic properties
  or areas.
• The mere presence of one or more of these
  resource conditions does not preclude use of a
  categorical exclusion. It is the degree of the
  potential effect of a proposed action on these
  resource conditions that determines whether
  extraordinary circumstances exist.

36
Clarification of Court Order inEarth Island
Institute v. Ruthenbeck

• Federal District Court ordered that categorically
  excluded timber sales as well as
• Projects involving the use of prescribed burning
• Projects involving the creation or maintenance of
  wildlife openings
• Various restrictions, regulations on off-highway
  vehicles (OHV) and their travel
• Projects involving the cutting of trees for
  thinning or wildlife purposes occurring over an
  area greater than 5 contiguous miles
• Gather geophysical data using shorthole,
  vibroseis, or surface charge
• Trenching to obtain evidence of mineralization
• Clearing vegetation for sight paths from areas
  used for mineral, energy, or geophysical
  investigation or support facilities for such
  activities
• Are subject to notice, comment, and appeal under
• 36 CFR 215 rules.

37
Forest Service Memo

• Therefore, any categorically excluded activity
  that does not fall within the categories the
  judge listed above does not require notice,
  comment, and appeal.Any actions or
  authorizations that were suspended under the
  prior instructions and that do not fall within
  the above categories should be immediately
  reinstated.
• Dale Bosworth, Chief
• What happened to public participation and
  transparency?

38
The Problems and Issues

• There was a reasonably inherent notion embedded
  in NEPA and the Court decisions that followed
  that targeted agency actions would receive some
  unique site by site consideration and
  investigation. Whether that concluded in a FONSI
  or not, each action would seemingly receive an
  evaluation.
• This policy was at the root of holding federal
  agencies accountable for their actions and to
  create greater transparency in agency
  decision-making and implementation.

39

• Categorical exclusions exist to promote economic
  efficiency and to
• allow the FS to operate without additional
  burdens on their
• autonomy (to create internal regulations, etc)
  however, when or
• where do these CEs cross the line of legality?
• Consider cumulative effects of these CE
  determinations
• Economic Expediency or Environmental
  Accountability?
• Other thoughts?

40
Question 4

• What is your analysis of the use of categorical
  exclusions within the legal context of the Forest
  Service to limit judicial review of strategic and
  programmatic decisions?

41
Categorical Exclusions

• Categorical Exclusions provide a mechanism for
  streamlining and speeding up approvals for common
  projects and activities that do not threaten the
  environment
• They allow Agencies to efficiently allocate
  scarce resources and avoid unnecessary and
  redundant work
• However.

42
Pre-Earth Island

• They are ripe for abuse
• Specifically, as evidenced in the Burnt Ridge
  Project, agencies could use the categorical
  exclusions to circumvent the judicial appeals
  process
• Agencies could avoid the cost and risk of an
  administrative appeal process through a finding
  of no significant impact of a project at the
  strategic or programmatic level and then use that
  NEPA standard to categorically exclude review at
  a site specific level where the Courts afford
  less deference

43
Pre-Earth Island

• Under the Forest Services regulation set forth in
  36 CFR part 219, the Forest Service could exempt
  itself from administrative review required by the
  ARA upon a finding of no significant effects of
  a categorical exclusion such as the Fire CE
• Under this procedure, any site specific actions
  subsequently conducted under the Fire CE would
  then be excluded from the administrative appeals
  requirement
• Agencies could thus avoid the Administrative
  appeals process at a site specific level through
  categorical exclusions based on NEPA data
  gathered at programmatic level
• Plaintiffs such as Earth Island or the Sierra
  Club would then be unable to bring actions for
  judicial review at either the Programmatic or
  site specific level

44
Ohio Forestry v. Sierra Club

• In holding that programmatic forest management
  plans were not ripe for judicial review without
  being applied in a specific context,
• Justice Breyer wore for the Court that to
  "'withhold court consideration' at present will
  not cause the parties significant 'hardship.'"
  "Before the Forest Service can permit logging,
  it must focus upon a particular site, propose a
  specific harvesting method, prepare an
  environmental review, permit the public an
  opportunity to be heard, and (if challenged)
  justify the proposal in court," continued Justice
  Breyer, "the Sierra Club thus will have ample
  opportunity later to bring its legal challenge at
  a time when harm is more imminent and more
  certain."

45

• Under the Forest Services categorical exclusions,
  Citizens and Environmental groups could thus be
  barred from challenging the Federal action at the
  programmatic level based on ripeness and at the
  site specific level based on the Forest Services
  categorical exclusion

46
Post-Earth Island

• Federal Agencies can no longer circumvent the
  judicial appeals process by using categorical
  exclusions based on NEPA standards gathered at
  the programmatic or strategic level to exempt
  site specific actions from administrative review
• However, the District Court has clarified this by
  indicating that permits for short term special
  uses need not be subject to notice, comment, and
  appeal

47
What hasnt changed

• Continued incentive to use Categorical exclusions
  at the Programmatic and Strategic level
• Adaptability of plan
• Cutting down on research and paperwork
• Saving time and money
• Programmatic decisions, including categorical
  exclusions, still given deference by the Court to
  allow for agency efforts to refine its policies
• Challenges to Forest Service plans remain unripe
  under Ohio Forestry because they have not yet
  been applied in a specific context

48

• Questions?