Lawsuit challenges new Forest Service policy on planning reviews PDF Print E-mail

Two environmental groups have filed a legal challenge to the Forest Service's recent decision to not subject forest plans to environmental impact statements under the National Environmental Policy Act. 

Defenders of Wildlife and Forest Guardians on Monday asked the U.S. District Court in Washington, D.C., to find the policy in violation of NEPA and to prevent the agency from applying it to any forthcoming forest management plans [Defenders of Wildlife, et al., v. Gail Kimbell, et al.; No. 1:07CU00194].

At issue is a Forest Service rule finalized Dec. 15 that allows the agency to issue categorical exclusions under NEPA for forest plans and amendments by declaring they have no direct effect on the environment. Required for the 155 national forests and 20 national grasslands, forest plans govern activities from timber harvests to recreation and protecting endangered plants and animals.

The categorical exclusion proposal was shelved for nearly two years as the White House Council on Environmental Quality, USDA and Forest Service debated whether it was legal and going too far. Using categorical exclusions will allow forest plans to be completed in two to three years, while current plans can take over five years. The Forest Service will still conduct NEPA studies at the project level, the agency said.

Environmentalists and congressional Democrats feel the categorical exclusions will limit public input in forest plans by removing the opportunity embedded in NEPA for public comment and requirements to consider the cumulative effects of individual management actions on national forests.

In a letter to House Democrats earlier this month, Forest Service Chief Dale Bosworth defended the categorical exclusion rule as "crucial to the success of the Forest Service land management planning." The Forest Service has learned much in 30 years of drafting management plans and associated environmental impact statements (EIS), Bosworth said. "One thing we learned was the bulk of environmental analysis in the plan EIS was focused on 15 years worth of hypothetical projects, many of which were never proposed, much less implemented," the chief wrote. "That speculative analysis was very expensive and provided little value to the public or the decision maker."

Historically, categorical exclusions were used for small projects such as expanding a campground or administrative building, but the Bush administration has expanded the practice for small timber and salvage logging projects.

In the suit, the groups said that the agency now uses the categorical exclusion process to exempt about 72 percent of its recent forest management projects from NEPA -- covering about 2.9 million acres from 2003-2005. Under the new policy, the agency would also categorically exclude forest management plans. "This means that the individual, and cumulative impacts of nearly three-quarters of defendant's projects will never be evaluated, because they are categorically excluded from NEPA at the project level, and now are categorically excluded from NEPA at the plan level," the complaint stated.

The categorical exclusion plan completed the Forest Service's effort to rewrite the forest planning rule. The planning rule without the categorical rule component was finalized in early January 2005 and immediately challenged by environmental groups. A federal judge in San Francisco heard arguments in the case Nov. 1 and is expected to rule on motions for summary judgement shortly (Land Letter, Nov. 2, 2006).

Mike Leahy, an attorney for Defenders of Wildlife, suggested that if the federal court in the prior case determines that the entire 2005 management policy is invalid, it would likely moot the newer complaint.