April 04, 2007
Science and Dissent: 'Deal with it' Says Federal Judge
Last Friday, a Seattle-based US District Court (9 page Order [PDF], Judge Ricardo S. Martinez, 3/30/2007) set aside the "Aquatic Conservation Strategy" (ACS) for the Northwest Forest Plan. The set-aside itself is not of import here. Rather, the reasons for the set-aside and the implications going forward are our concern. The Court found at least two fundamental procedural problems in reviewing the Final Supplemental Environmental Impact Statement (FSEIS—associated with the Clinton-era Northwest Forest Plan). First, the Court found the FSEIS had failed to comply with the National Environmental Policy Act (NEPA) in moving from one standard to another. In the finding, the Court relied on this standard,
[W]here an agency has previously made a policy choice to conform to a particular standard, and now seeks to amend that standard, "the Agencies have an obligation under NEPA to disclose and explain on what basis they deemed the standard necessary before but assume it is not now."Such review has implications in many fora, including any future EPA regulation of CO2 and other "Greenhouse Gases", and 100+ federal forest plans in the US.
Second, the Court found that the agencies failed to disclose dissenting scientific opinion in the body of the EIS, noting that "dissenting views of responsible scientists were neither set forth in substance, nor their import discussed, in the FSEIS. … Further, several of the … scientists' responses regarding original intent of the ACS were misrepresented in [an] appendix." The Court found, specifically:
Even if the scientists' opinions had been adequately and accurately stated and discussed, their relegation to the comment and response section of the appendix was improper under NEPA. … Disclosures and discussions must be in the body of the EIS itself. … Furthermore, within that body of the EIS, the agency must not only recite dissenting opinions, it must "analyze," "respond to" and "discuss" them. … None of that was done here.Somehow I think we'll hear more about both concerns/finding as we continue to expand our horizons in the political/administrative/judical world we live in.
April 01, 2007
Federal Judge Strikes Down 2005 NFMA Planning Rule
On Friday, Judge Phyllis J. Hamilton, United States District Court for the Northern District of California, surprised some in the Forest Service, enjoining the 2005 National Forest Management Act [NFMA] Rule. Here is the 60-page Order [PDF].
Others like me were not surprised, but rather had long felt that the both the Forest Service and the Department of Agriculture had mis-interpreted key court decisions to grant themselves broader powers to exclude matters, particularly "programmatic" matters, from National Environmental Policy Act [NEPA] and Endangered Species Act [ESA] compliance procedures. This Court has now set about to clear up this mis-conception.
In addition to (or in conjunciton with) specific NEPA and ESA compliance measures, the Court found that the Department had violated the Administrative Procedures Act [APA] in failing to "provide notice sufficient to fairly apprise interested persons of the subjects and issues before the agency."
In particular the Court found that both the "categorical exclusion" from developing an Environmental Impact Statement for forest plans and the related-via-the-2005-Rule need to develop an Environmental Management System [EMS] were well beyond the bounds established by the principle, established in case law that "a final rule must be a logical outgrowth of [a] proposed rule."
In its APA violation, the Court focused specifically on language used by the Department that the 2005 Rule "embodies a paradigm shift in land management planning." The Court in "Analysis" says,
The relevant law is clear the an agency cannot promulgate without notice and comment a final rule the constitutes a "paradigm shift" form the proposed rule for which there was notice and comment.There is much to talk about in the 60 page order, talk that will keep the Forest Service abuzz for some time. Still, I found nothing to be surprised over. I've been talking about this prospect for quite some time with colleages. See, e.g.:
- Time To Kill Forest Plan EIS Categorical Exclusion? (2/2/2007)
- A Simpler Way (11/3/2006)
- Forest Service '2005 Planning Rule' Now in Court (11/2/2006)
- Jeremiah was a
BullfrogForest Planner (9/15/2006)
- EMS to the NEPA Rescue (7/18/2006)
- The Curious Case of Forest Planning and the EMS (4/21/2005)