Under President Donald Trump, federal agencies have chipped away at the reviews and permitting required under the National Environmental Policy Act, one of the nation’s bedrock environmental laws. In June, the Forest Service proposed a significant overhaul of the NEPA process for logging and development on millions of acres of federal forest and grassland across the West.
In a statement, the Forest Service said NEPA environmental reviews are time-consuming, redundant and prevent active maintenance of healthy forests. The agency called it the first serious change to NEPA’s regulation of forest management in more than 10 years.
The public has 60 days to weigh in on these significant changes. The proposed NEPA revisions comment period closes Aug. 12. Here are some key takeaways:
The proposed changes would reduce environmental review for logging and infrastructure.The Forest Service wants to expand the number of projects that would qualify for “categorical exclusions” – projects that can bypass environmental analysis or environmental impact statements. The exclusions would apply to forest thinning, various types of road and trail building, brush removal and recreational site management. More controversially, forest projects of up to 7,300 acres (with logging on up to more than half of those acres) could be excluded from NEPA review. Mineral and energy exploration – such as using seismic testing to gather geological data and various small-scale infrastructure building – could also be exempt if it lasts less than one year.
The changes would undercut public engagement.Since its inception, NEPA has established public engagement as a core principle of environmental review. People should know what’s happening on public land – from being notified of potential projects, to having an input on whether or not a project should go through. The changes would undermine the public’s role in NEPA permitting, said Mark Squillace, professor of natural resource law at University of Colorado Law School; people would be less informed about proposed projects and less able to weigh in on them. “The proposal leaves it up to agency officials whether or not to allow public engagement for anything but an environmental impact statement,” he said.
The backlog is already long.The NEPA permitting bottleneck is a legitimate public concern. Permits to remove buildup of fire-prone organic material and to build roads take far too long, Squillace said. In the introduction to the rule, the Forest Service claims more than 5,000 new permit applications and existing permit renewals await decisions, while 80 million acres of national forest land need work to curb “wildfire, insect epidemics and forest diseases.”
Western lawmakers of both parties have shown an interest in streamlining NEPA, but there is disagreement over the recent proposal. In a statement, Congressional Western Caucus Chairman Rep. Paul Gosar, R-Ariz., called the new rule a necessary correction to “costly, burdensome and uncertain” environmental reviews.
In a Senate committee hearing June 13, Sen. Ron Wyden, D-Oregon, took the opposite view. Wyden, who supports streamlining forest thinning projects, accused the Trump administration of trying to further “ideological pipe dreams of rolling back environmental laws,” rather than working to approve existing projects to reduce hazardous fuel loads. Rural Oregon, he said, is a “tinderbox,” a massive forest fire hazard.
The changes will almost certainly end up in court. Wyden called the revisions a “full-employment plan for lawyers” because they invite litigation, further slowing permitting for projects that might help lower wildfire risk. Environmental groups, including the Center for Biological Diversity and the Western Environmental Law Center, are already hinting at legal challenges. These cases could involve the Forest Service’s justifications for weakening NEPA, as well as possible violations of other environmental laws, like the Endangered Species Act.
In determining whether a project that affects protected species warrants environmental analysis, the proposed rule gives agency officials authority to judge whether “there is a likelihood of substantial adverse effects to the listed resource conditions.” But the Endangered Species Act contains no wiggle room. If an agency knows a project could affect a protected species, it is supposed to consult the Fish and Wildlife Service. The leeway in this clause could be used in future lawsuits, Squillace said.
This article was first published on hcn.org.