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Environmentalists will almost certainly take to court a new Forest Service rule that exempts new and revised forest plans from the National Environmental Policy Act (NEPA.) The rule allows individual national forests to exempt themselves from preparing environmental analyses (EAs) or EISs for plans.
In publishing the rule December 15, the Forest Service argued that plans are strategic policy documents that don't authorize projects with environmental impacts, and thus doesn't require NEPA review. When specific projects are proposed under the plans, the Forest Service said it would then prepare EAs or EISs.
But environmentalists say the rule violates NEPA because important decisions are made in plans that do affect the environment. "In plans the Forest Service makes decisions on what areas are open to logging and what areas are open to oil and gas development and what areas are not open," said Tim Preso, an attorney with the Earthjustice environmental law firm. "Those are important decisions."
"The administration says forest plans don't authorize new activities, but you can bet when the Forest Service reviews projects it will say we have to allow new development because the land management plan sets asides these lands for development," he added.
Preso was reluctant to comment on the particulars of any litigation, other than to say, "I'm sure we will (sue.)" Environmental groups filed a lawsuit against the bulk of Forest Service planning rules on Feb. 17, 2005, and they may well amend that suit to object to the December 15 rule.
Sen. Jeff Bingaman (D-N.M.), the new chairman of the Senate Energy Committee, and Rep. Nick Joe Rahall (D-W.Va.), the new chairman of the House Resources Committee, back the environmentalists. Although Bingaman did not specifically threaten to write legislation to overturn the December 15 rule, he said the rule gutted Forest Service planning. "(The Forest Service's) rationale is that these new forest plans will have 'no effect on the environment,'" said Bingaman. "That is a sad but revealing admission - that the Forest Service has largely rendered meaningless what once was a robust planning process."
Rahall raised two substantive objections to the rule - it would eliminate cumulative analyses of numerous projects and would lead to no NEPA review for activities because the agency has separately granted numerous categorical exclusions (CEs) from NEPA documentation. For instance, Rahall said a Government Accountability Office report said that 72 percent of vegetative management projects receive CEs.
The timber industry praised the rule. Tom Partin, president of the American Forest Resource Council, said, "Revision of the Forest Service's planning process began in 2001, and this new rule greatly improves the planning process by actively involving the public at every step, and using the best available science to allow the best on the ground decision-making."
The December 15 rule effectively completes a new forest planning policy that was kicked off by a January 5, 2005, rule. The regulation is designed to eliminate both legal gridlock and excessive analysis. The Forest Service said the rule will enable individual forests to write new plans in two-to-three years, instead of the five- to-seven years required before, at a cost saving of 30 percent. Plans cost $5 million to $7 million to write, the Forest Service says. The plans are designed to last 15 years.
In issuing the rule the Forest Service rebutted all criticisms. To the overarching charge that the rule violates NEPA the agency said the Supreme Court itself had recognized that plans do not authorize specific actions. "In Ohio Forestry Association v. Sierra Club, 523 U.S. 726 (1998), the Supreme Court recognized that, in contrast to proposals for actions that approve projects and activities, the land management plan provisions at issue 'do not command anyone to do anything or to refrain from doing anything; they do not subject anyone to any civil or criminal liability; they create no legal rights or obligations,'" says an agency background paper.
As to the charge that the public will be shut out the Forest Service said public involvement will actually be strengthened. "The rule improves the planning process by actively involving the public at every step," says the background paper.
Finally, the service said forests will analyze cumulative effects. "To account for cumulative effects of management and natural events, the 2005 planning rule requires a comprehensive evaluation be performed for the development of a new plan or plan revision, an annual monitoring plan and evaluation, and a review of the comprehensive evaluations at least every 5 years," says the background analysis.
A legal challenge would probably not be in the form of a new lawsuit but might be added to an ongoing lawsuit against a separate Forest Service rule dealing with wildlife protection, Defenders of Wildlife v. Johanns. It is being contested in the U.S. District Court for the Northern District of California. The litigants also include the Sierra Club and the Wilderness Society.
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