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A federal appeals court this week struck down part of the Bush
administration's Healthy Forests Initiative that exempted hazardous fuels
reduction projects on national forests from further environmental analysis.
A three-judge panel of the 9th U.S. Circuit Court of Appeals said the Forest
Service improperly used categorical exclusions under the National Environmental
Policy Act for fuel reduction projects up to 1,000 acres and prescribed burns up
to 4,500 acres as part of its battle against wildfires.
The Sierra Club and Sierra Forest Legacy argued the agency failed to consider
the significance and cumulative effects of the rule, which has allowed more than
1 million acres of logging nationwide since mid-2003.
"This means they're enforcing the law for what was projected to be a million
acres of logging every year under the guise of quote, 'fuel reduction,'" said
Sierra Club attorney Eric Huber. "The courts have once again had to tell the
administration that it simply cannot ignore laws -- environmental and otherwise
-- simply because it finds them inconvenient."
"We're reading this decision and its implications," said Forest Service
spokesman Joe Walsh. The agency believes categorical exclusions remain a "useful
tool," he said. The Forest Service and supporters have argued the categorical
exclusions are necessary to streamline necessary fuels reduction projects
without waiting for the often lengthy environmental assessment or environmental
impact statement.
The Bush administration has dramatically expanded the use of categorical
exclusions, with environmental groups fighting each step in court. Categorical
exclusions under NEPA were historically used for small projects such as
expanding a campground or administrative building, but the administration has
expanded the practice to oil and gas drilling permits, salvage logging projects
and forest plans.
While all three judges ruled against the Forest Service, Judge Andrew
Kleinfeld issued a short concurring opinion questioning the environmentalists'
argument, but saying the federal government did not offer a better defense.
"As a matter of common sense, cutting brush and using controlled burns on
parcels no larger than 1,000 acres and 4,000 acres respectively seems most
likely to have the cumulative impact of reducing the catastrophic effect of
forest fires on people," Kleinfeld wrote. "Nevertheless, the government's brief
does not point us to anything in the record that supports my intuitive
view."
The judge added, "The government has made no serious attempt to show us why
the categorical exclusion was not arbitrary and capricious or that it gave the
required 'hard look' at the categorical exclusion before promulgating it."
The ruling overturns a ruling by Judge Garland Burrell of the Eastern
District of California, who sided with the Forest Service in 2005.
The 9th Circuit's injunction against the rule applies to projects the Forest
Service issued after October 2004. Judge Burrell may determine if any projects
approved after October 2004 can be allowed to proceed if they are near
conclusion.
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