Instead of improving a landmark environmental law, changes are designed to flout environmental standards, says award-winning former Forest Service veteran
If key provisions of the National Environmental Policy Act are "reformed" by the Forest Service, will it result in more natural resource exploitation by industrial forces, including recreationists who are blazing new illegal trails into national forests. Drawing by David A. Jenks, 1859, courtesy Library of Congress
First they came for the national monuments, then they came for the Clean Water Act. They came for the BLM, moving its headquarters from Washington DC to western Colorado, appointing as its head man someone who wants to dissolve the public lands. When will they come for us all?
Currently, the National Environmental Policy Act of 1970 (NEPA) is under attack and there’s a chance that strong public opinion in the next few days might dissuade the slashers of open government from gutting this important law. I know how important it is; for decades as a Forest Service career employee, I saw firsthand why NEPA protects the public interest.
Many people who use the national forests weren’t born when NEPA was signed into law, and perhaps a bit of history is in order. Why was a law like NEPA needed?
According to a 1973 government report, NEPA and the Environmental Movement: A Brief History, until the mid-1960s few Americans recognized the magnitude of environmental degradation in the U.S. A 1964 Gallup poll on citizen concerns contained no reference to the environment. Less than a year later, President Johnson spoke about the importance of beautifying America and public attitudes changed. Remember the public service announcement with the teary-eyed pseudo-Indian who was saddened by litter? (A quick look at YouTube yields 13 versions it).
In 1965, 43 percent of respondents to a Harris poll sample expressed concern about the pollution of rivers and streams. The same year, the New York Times published 350 articles on pollution, twice the number published the year before. Government, media, and the general public seemed to be waking up all at the same time. Four laws were quickly passed: the Water Quality Act, the Water Resources Act, the Rural Water Sewage Act and the Highway Beautification Act. More legislation followed during the rest of the 1960s, capped by NEPA in 1969, signed by President Nixon in January 1970.
For raising public awareness about environmental threats we can also thank Rachel Carson for her book Silent Spring, published in 1963. A best seller for many months, it managed to acquaint the public with the dangers of indiscriminate use of pesticides, something that other concerned scientists had been unable to do.
A few years later, coverage of large and preventable environmental disasters deepened people’s concerns. Two of the most notorious events occurred in 1969. In January, a major oil spill from an offshore drilling platform devastated the California coast near Santa Barbara. Intensive coverage of the event attracted widespread attention with televised shots of volunteers trying to remove oil from dying shore birds.
In June, floating pieces of oil-slickened debris were ignited on the Cuyahoga River by sparks caused by a passing train. The fire reached heights of over five stories and lasted between twenty and thirty minutes, and news media were able to cover it as thoroughly as they had the Santa Barbara oil spill.
It became clear that the national environmental policy that Congress had been working on for most of the decade was sorely needed.
A half-century later, it’s hard to remember the time when citizens were not asked to weigh in on proposals by federal agencies. Those who follow Forest Service blogs or subscribe to its news feeds will be familiar with NEPA-related announcements such as: "The scoping period begins today. Click here for an analysis of alternatives." But it’s worth remembering that requests for public perusal and input on potentially damaging projects were not standard practice before NEPA.
NEPA fundamentally altered how agencies like the Forest Service approached human impacts on the natural world by requiring them to plan and manage federal actions in a responsible way and to consider the environmental implications of their proposals before decisions are made. And it provided the public with an opportunity to be involved in agency planning efforts.
The Forest Service has long had a trying relationship with some of the laws that govern its operations, and NEPA is among those most troubling to the agency. While some refer to NEPA as the “Magna Carta” of environmental law, critics charge that it delays decisions by requiring many hoops to jump through. Forest Service cynics call it "the Never Ending Paperwork Act."
But it doesn’t have to be, and wasn’t meant to be. Perhaps unwittingly, and at times intentionally, the agency has turned NEPA into the never-ending process it sometimes seems to be. Some of the reasons are policy-related while others fall into a category I call fuzzy thinking.
But the reality is that the legislation is only a few pages long and easy to understand. The regulations promulgated by the Council on Environmental Quality (part of the executive branch and established by NEPA) can be found in a small, concise, well-written handbook that I referred to often when working on environmental assessments.
Though much-maligned by critics in and outside the Forest Service, NEPA is a great law. Great enough that a number of states have passed their own versions of it and other nations have long been recruiting Forest Service employees to give workshops on how to set up similar processes in their domains.
Though much-maligned by critics in and outside the Forest Service, NEPA is a great law. Great enough that a number of states have passed their own versions of it and other nations have long been recruiting Forest Service employees to give workshops on how to set up similar processes in their domains.
Now the Forest Service wants to change its NEPA regulations. Why now? In part, a growing frustration over the time it takes to complete an analysis. But to shortcut, rather than correct the reasons for delays, does the law, the citizens and the resource no favors.
The Trump Administration characterizes NEPA as a regulatory burden that slows economic growth and critical infrastructure projects, but the Congressional Research Service has found a lack of data to support this claim. Instead, the Service found that other factors like litigation, entitlements, permitting and developer-led changes are responsible for between 68 percent and 84 percent of delays, states an analysis posted at the New York University School of Law website.
According to a fact sheet published by the Forest Service in June, an environmental assessment takes 687 days to complete while the average time to complete a Categorical Exclusion (CE) is 206 days. By using the new categories in the proposed rule, the Forest Service could potentially complete analysis between 30 and 480 days sooner than it does now. Increased efficiency.
However, the NYU School of Law website sees it differently, stating that the proposal appears to be “designed to undermine NEPA’s mission, taking aim at decades of established regulatory precedent and nullifying congressional intent. As one of the only tools for the public to provide meaningful input on federal initiatives that have significant and lasting impacts on communities, wildlife and natural resources, NEPA is widely considered a vital democratic safeguard for promoting environmental justice.”
As if to underscore this opinion, the Attorneys General of ten states (so far) have protested the proposed change. None of the Greater Yellowstone states are among them.
Before NEPA became law in 1970, public land management agencies held wide latitude in being able to green light huge resource extraction projects on public lands. Citizens had little say, science did not have to be heeded, and land managers were often at the beck and call of politicians friendly with private companies wanting to extract resources without accepting full environmental liabilities or accounting for impacts. Imagine if the Forest Service approved full-field energy development, like gas drilling on the Jonah Field below, inside the Bridger-Teton. How would such landscape fragmentation affect wildlife, hunting, fishing and forest serenity? Undermining NEPA, observers say, could put woodlands in greater jeopardy. Photo courtesy EcoFlight (ecoflight.org)
So, what’s included in the change? "Improving efficiency" sounds fine, but the proposal itself is so wrapped in bureaucratese that one is left wondering what on earth it means. For example, the section on “condition-based management” makes an attempt to define this term:
The proposed rule would add “condition-based management” to the agency’s NEPA procedures. Condition-based management is a system of management practices based on implementation of specific design elements from a broader proposed action, where the design elements vary according to a range of on-the-ground conditions in order to meet intended outcomes.
I think this is trying to say that it’s okay to tier a site-specific project to a larger scale analysis, which is already being done. So I can’t guess what the implications are for change.
The proposed regulation also expands the ways in which categorical exclusions can be used. CEs are already a popular way to shortcut NEPA by trying to shoehorn every project into one of the categories for which a thorough analysis can be exempted. But even a categorical exclusion must include public notification and some level of analysis, and a decision memo produced for documentation’s sake. So it’s not a totally opaque process.
Proposed new categories include the following:
—Issuance of a new special use authorization to replace an existing or expired special use authorization, when such issuance is a purely clerical action to account for administrative changes and where there are no changes to the authorized facilities or increases in the scope or intensity of authorized activities.
—Activities that occur on existing roads or trails, in existing facilities, or in areas where activities are consistent with the applicable land management plan or other documented decision.
—Approval, modification, or continuation of special uses that require less than 20 acres of NFS lands.
—Activities that restore, rehabilitate, or stabilize lands occupied by roads and trails.
—Construction, reconstruction, decommissioning, relocation, or disposal of buildings, infrastructure, or other improvements at an existing administrative site.
—Construction, reconstruction, decommissioning, or disposal of buildings, infrastructure, or improvements at an existing recreation site.
—Converting an unauthorized trail or trail segment to an NFS trail.
—A Forest Service action that will be implemented jointly with another Federal agency and the action qualifies for a categorical exclusion of the other Federal agency.
The highlighted categories above are of most concern to me.
Two of them are "Converting an unauthorized trail or trail segment to an NFS trail" and "Converting a non-NFS road to an NFS road."
These two items fly in the face of a national regulation that states that it’s illegal to build roads or trails in the national forests without permission. This change legitimizes what has up until now been seen as a violation of the rules. It encourages people so inclined to continue pioneering roads and trails into the backcountry of the national forests and then asking that they be added to the transportation system. And it allows the Forest Service to conduct a minimal analysis of effects if it chooses to do so.
There’s a local example I can provide as to how this might not be the best thing to do. A group of mountain bikers took it upon themselves to construct a network of trails in a forested area near Jackson, and eventually the Bridger-Teton National Forest decided to adopt the trails (no citations were issued to my knowledge for illegal trail-building). One of the trails happened to pass into a great gray owl nesting territory, which the trail crew discovered while working. So they had to undo their work and close off that trail. How much better would it have been to do a minimal environmental assessment with a wildlife biologist involved, to avoid this kind of thing?
There’s a local example I can provide as to how this might not be the best thing to do. A group of mountain bikers took it upon themselves to construct a network of trails in a forested area near Jackson, and eventually the Bridger-Teton National Forest decided to adopt the trails (no citations were issued to my knowledge for illegal trail-building).
Another area that concerns me pertains to "certain ecosystem restoration and/or resilience projects."
Ecosystem restoration and resilience sounds benign, but it can also be used as a smoke screen for logging, clearing forest or shrub land, and making some significant alterations to the biological environment without a thorough analysis of effects. It greatly increases the size of an area to be treated under a CE. And what exactly is meant by “certain” projects? Why not spell it out?
I think everyone in the Forest Service who deals in NEPA and the public are in agreement that the process takes too long. But some of the reasons I see have nothing to do with the law itself. It has to do with how NEPA is being implemented.
Some of this can be corrected to streamline (not eviscerate) NEPA and make it work more smoothly. Of course these corrections assume that adequate funding and personnel are available to handle the onslaught of proposals that need to be analyzed.
When you first see a scoping letter that introduces the proposed action, there is a statement of purpose and need at the beginning. It is essential that the agency understands what it is proposing, and can answer the questions why here, and why now?
An inadequate or incorrect purpose and need can be the result of a less than thorough discussion internally, though occasionally it’s deliberately deceptive. Through several iterations of a timber sale proposal I worked on, the stated purpose began as improving “forest health.” The interdisciplinary team, including myself, other resource specialists, members of the public, and district staff, took a look at the area and the forest looked pretty healthy to all of us.
So the purpose was rewritten to specifically deal with an infestation of mistletoe. This was quickly dismissed as a red herring, as mistletoe is part of the forest ecosystem and wasn’t hurting the trees and the only “infestation” occurred in a stand that had been planted after an earlier timber sale.
It became clear to all of us that the purpose of the project was to help the forest meet its timber target. One member of the public on that field trip, the operator of a local sawmill, said he had all the volume he could handle for the time being, and might be interested a few years later.
Too often, the unstated purpose of a project is to meet a target, placate a politician, or do the bidding of regional office staff (more than one forest road has been paved at great expense because some higher-up in the agency thought it was a good idea). But it’s not okay to just be honest and say so, thus the need to dream up something that sounds more environmentally necessary.
Too often, the unstated purpose of a project is to meet a target, placate a politician, or do the bidding of regional office staff (more than one forest road has been paved at great expense because some higher-up in the agency thought it was a good idea). But it’s not okay to just be honest and say so, thus the need to dream up something that sounds more environmentally necessary.
NEPA can help the agency think through the proposal from the get-go, so the purpose and need is clear to everyone. If there is no real purpose, perhaps the project isn’t necessary.
The other problem that seems ubiquitous (and this is by no means restricted to the Forest Service) is that long before public scoping begins, the project has been conceived, designed and the decision to go forward with it has been made. What’s the point of asking people for their input in such a case?
Often if the decision is flawed, either because the purpose and need is flawed or ignored, the issues and information brought to the table by citizens remain unanswered. So it’s time for appeals and lawsuits. This kind of delay can be avoided if people are heard, and the proposal reflects their input.
Another efficiency measure would be to assure resource specialists that they don’t have to download every bit of information they have, bulking up the documents with tables and charts and pages of text that are not needed. When the affected environment section of the NEPA document is written, it’s not necessary to list every threatened or species of concern within the state in order to address concerns in an area that may not even have any of those species. It’s not necessary to provide pages of geologic maps and cross sections when only one stratum at the land surface is involved.
In the end, the ultimate goal of the NEPA process is to foster excellent action that protects, restores, and enhances our environment. In spite of all the bellyaching about it, NEPA has been effective in providing public officials with the information they need to make better decisions. And it has given the public a chance to influence how their national forests are managed.
My vote is to move with great caution when changing a law that has been effective for so long. Make it work better, but don’t wreck it.
EDITOR'S NOTE: Mountain Journal welcomes well-written rebuttals, informed by facts, to essays written by our columnists. If you are interested in penning one, contact us.
About Susan Marsh
Susan Marsh spent three decades with the U.S. Forest Service and is today an award-winning writer living in Jackson Hole.
