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Nine environmental groups have filed suit against the U.S. Forest Service to halt changes to the way the agency reviews timber projects, arguing the new process bypasses scientific analysis and public feedback vital to creating environmentally sustainable large-scale timber projects.
The Southern Environmental Law Center, the lead plaintiff, and eight other regional organizations, including Asheville-based Mountain True, sued to invalidate National Environmental Policy Act rule changes that took effect Nov. 19.
The NEPA requires the Forest Service to study the environmental impacts of proposed actions before it makes a decision on projects that include forest restoration, timber harvesting, recreational improvements, infrastructure projects and pipelines.
The November changes created and revised categorical exclusions, or CEs, a list of activities that the Forest Service determined do not have an environmental impact and therefore do not require additional environmental analysis.
Among the approved categorical exclusions are exemptions from environmental analysis for timber projects smaller than 2,800 acres, known as the “Restoration CE,” said attorney Sam Evans of the SELC. Exempting a project from the typical scrutiny the law requires is designed to serve forest restoration objectives but may include commercial timber harvesting.
For example, the exemption would have applied to the controversial Southside Project in Nantahala National Forest, approved in February 2019, which includes 317 acres of forest slated for harvest within the 18,944-acre Southside project area in southwestern North Carolina.
While the project area is greater than 2,800 acres, what matters is the number of harvested acres. According to Evans, the approved categorical exclusion will apply to most, if not all, future timber projects in Pisgah and Nantahala National forests.
“The Forest Service has found the ceiling on the size of projects tends to be about 500 acres of total harvest,” he said. “That’s a fifth the size of this loophole.”
Evans argued that the requirements of NEPA are important for continued environmental protection.
“The procedural safeguards of public input and scientific analysis are the reason that small projects avoid harm to things that people care about,” he said, such as recreational assets, old-growth tree stands and rare species.
The law works like a flow chart: Its central question is whether a proposed action, such as a timber project, will have significant harmful impacts, Evans said.
If the answer is “yes,” then the law requires that government agencies engage in a review process.
While extensive projects may require an environmental impact statement, most actions with meaningful impacts require an environmental assessment, a less comprehensive analysis that is intended to identify ways to revise an action to reduce environmental and social impacts.
The environmental assessment provides the “public a meaningful opportunity for input and a concrete description of the impacts,” Evans said.
Sharon Friedman, a former assistant director for NEPA for the Forest Service and editor of the blog Smokey Wire: National Forest News and Views, told Carolina Public Press that using a categorical exclusion still requires a “scoping” process. Scoping is used to provide notice of a future action, identify possible issues and give the public an opportunity to weigh in.
Limiting scoping only to projects that require an environmental impact statement was rejected in the final rule and will continue to be used.
The revised categorical exclusions were proposed in 2019, followed by a public input period that generated thousands of comments.
A Department of Agriculture press release said the new rules allowed the agency to “tackle critical land management challenges” and be better equipped to accomplish its mission, but the SELC lawsuit said the new process reduces public input and transparency.
“These changes will ensure we do the appropriate level of environmental analysis to fit the work, locations and conditions,” then-U.S. Secretary of Agriculture Sonny Perdue said in the press release.
“The new categorical exclusions will ultimately improve our ability to maintain and repair the infrastructure (that) people depend on to use and enjoy their national forests — such as roads, trails, campgrounds and other facilities.”
Evans said his clients are concerned about the detrimental effects of the exclusions.
“When the Forest Service conducts analysis and the public offers feedback, these projects get better,” he said. “If you take the projects and move them into the loopholes, you lose all of those improvements.”
Not a new procedure
“CEs are a legitimate part of NEPA that agencies are supposed to develop when they have found through experience and review that those projects have no significant environmental effects either individually or cumulatively,” Friedman said.
“The Forest Service will check for ‘extraordinary circumstances,’ or conditions that make the project need more analysis.”
She also said that “evidence suggests” Forest Service managers are “really conservative” and will seek public input even if they apply for a categorical exclusion.
In fact, the Forest Service used categorical exclusions for North Carolina timber projects before the rule change, including the 2017 Crawley Branch Southern Yellow Pine Restoration Project in the Grandfather Ranger District in Caldwell County.
The purpose of the project was to reduce the risk of Southern pine beetle infestation, and, using a categorical exclusion created to expedite threats caused by invasive pests and the rising risk of catastrophic wildfire, the Forest Service bypassed an environmental assessment.
“It’s a good project and it’s having good results on the ground,” Evans said. “The reason for that, however, is because you have a very capable district ranger who relied on a well-established, formally convened collaborative process.”
Although the categorical exclusion used for the Crawley Branch restoration has a limit of 3,000 project acres, it’s more limited than the recent restoration categorical exclusion, since it addresses very specific needs, such as wildfire suppression and pest infestations.
“(The categorical exclusion) also has important strings attached,” Evans said. “They don’t allow harvest of old-growth or large trees, for example. Congress gave the Forest Service the authority to take action for high priorities with limitations to prevent abuse so it could move ahead without consulting the public.”
However, the new categorical exclusion rules allow the Forest Service to reject the limits imposed by Congress, he said.
“The Forest Service wants to be able to move forward even with low-priority, high-controversy projects without consulting the public,” he said.
The burdens and benefits of the law
The agency spends more than $1 million per day on environmental analysis, and 40%-80% of project costs go to planning, according to a September 2017 Forest Service presentation.
Some politicians, particularly among the Congressional Western Caucus, have a dim view of the environmental regulations that make action more burdensome.
Caucus member Rep. Scott Dains, R-Montana, applauded the Forest Service “for cutting red tape to protect our communities from catastrophic wildfires, expand recreation and create jobs” in a June 2019 press release.
Although politicians have portrayed NEPA as enforcing rigid and redundant rules that prevent action, within the agency, said Friedman, the view of NEPA is “based on how (its) tasks and practices affect them and their work.”
For example, she said, a public affairs specialist may appreciate the public input aspect of the law.
Friedman said that when she joined the agency in 1979, “a strong bias that the real work was in the woods and not chained to a desk” existed.
But the culture within the agency has changed, and some now see the law as a means to “getting involved in decision-making and influencing what the project does,” she said.
Still, within the agency, there are plenty of concerns about NEPA.
An October 2018 roundtable discussion hosted by the National Forest Foundation — the nonprofit arm of the Forest Service created by Congress — identified several concerns within the agency and its partners.
They included fear of litigation, the lack of capacity within the workforce, varying knowledge of NEPA among staff, and concerns that resources reallocated to fire suppression have dried up budgets, among many others.
Evans thinks an internal perspective exists among some bureaucrats within the Forest Service who “feel NEPA is a red tape obstacle they want to get rid of — that NEPA is the problem.”
“NEPA gets the blame but is a critical safeguard to make sure that the work the Forest Service does is good” and a counterweight to politicians who see the legislation as excessive bureaucratic regulation, he said.
“There is also a perspective in the agency that NEPA is the only counterweight of the extreme pressure on staff to cut more timber,” Evans said.
“(NEPA) is the yin and yang of Forest Service decision-making, and the current reforms fundamentally shift the balance of power in agency decisions.”
What may be slowing the progress of NEPA reviews aren’t the rules or regulations. A 2015 Forest Service report on the rising costs of forest fires acknowledged that shifting resources to fight wildfires may burden the pace of project reviews.
“As more and more of the agency’s resources are spent each year to provide assets to protect lives, property and natural resources from catastrophic wildfire, fewer and fewer funds and resources are available to support other agency work — including the very programs and restoration projects that reduce the fire threat,” the report said.
Evans pointed out that the Forest Service has also bowed to political pressure to slash budgets each year.
“The only way to speed up decisions with its funding capacity is to get corners,” he said. “The most consequential decision they make. It is not whether they log, it is where they do it. That is where public input needs to happen.”