December 06, 2007
Ninth Circuit Court Strikes Down FS Fuels Treatment CE
In Oct. 2005 I suggested — tongue in cheek — that the Federal Government just write a blanket provision saying, "Henceforth all federal 'good projects on the ground' will be exempt from NEPA, NFMA, ESA, the National Historic Preservation Act, …". Acting out their rightful role as guardians of balanced power in government, the courts have steadfastly maintained that such would not be allowed—that in fact such administrative arrogance would ultimately prove to be a coffin of their own design.
Yesterday, the Ninth Circuit Court of Appeals put a few more nails in this particular Administrative coffin, ruling in part: "We conclude that the Forest Service failed to assess properly the significance of the hazardous fuels reduction categorical exclusion and thus it failed to demonstrate that it made a 'reasoned decision' to promulgate the Fuels CE based on relevant factors and information. Accordingly, its promulgation of the Fuels CE was arbitrary and capricious." The rest is here: SIERRA CLUB v. BOSWORTH, 12/05/07 [PDF: 32pp] I found this "Discussion" particularly illuminating:
SIERRA CLUB v. BOSWORTH 15946-50PS.. Unlike the FS, The Ninth Circuit has a blog, wherin we find the summary comment that we led off with:
… B. Fuels CE not in compliance with NEPA
We conclude that because the Forest Service failed to demonstrate that it made a "reasoned decision" to promulgate the Fuels CE based on all the relevant factors and information, its promulgation of the Fuels CE was arbitrary and capricious. Marsh , 490 U.S. at 378; see also 40 C.F.R. §1505.1. "When an agency decides to proceed with an action in the absence of an EA or EIS, the agency must adequately explain its decision." Alaska Ctr., 189 F.3d at 859. The Service erred by conducting the data call as a post-hoc rationale for its predetermined decision to promulgate the Fuels CE, failing to properly assess significance, failing to define the categorical exclusion with the requisite specificity, and therefore basing its decision on an inadequate record.
1. Improper Post-Hoc Decision-Making
 The Department of the Interior and the Forest Service inappropriately decided to establish a categorical exclusion for hazardous fuels reduction before conducting the data call.
In requesting the data call, the Deputy Chief of the Forest Service stated that the Forest Service "intend[s] to put this information to good use supporting a categorical exclusion for fuels treatment, rehab and salvage." Post-hoc examination of data to support a pre-determined conclusion is not permissible because "[t]his would frustrate the fundamental purpose of NEPA, which is to ensure that federal agencies take a 'hard look' at the environmental consequences of their actions, early enough so that it can serve as an important contribution to the decision making process." California v. Norton, 311 F.3d 1162, 1175 (9th Cir. 2002) (citation omitted). "[P]ostdecision information [ ] may not be advanced as a new rationalization either for sustaining or attacking an agency's decision." Sw. Ctr. for Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443, 1450 (9th Cir. 1996). Moreover, the Forest Service failed to engage in the required "scoping process" prior to establishment of the categorical exclusion in order to " 'determine the scope of the issues to be addressed and for identifying the significant issues related to a proposed action.' " Alaska Ctr., 189 F.3d at 858 (quoting 40 C.F.R. § 1501.7); see also FSH § 1909.15, ch. 30.3. In determining the "scope" of a proposed project, the responsible Forest Service officer is required to consider the cumulative impacts of connected, cumulative, and similar actions, and is required to produce an EA if the proposed project may have a significant effect on the environment. See FSH § 1909.15, ch. 30.3; 40 C.F.R. § 1508.25(a)(3).
 As the CEQ regulations state, NEPA procedures constitute the framework decisional process, and "NEPA's purpose is not to generate paperwork—even excellent paperwork—but to foster excellent action." 40 C.F.R. § 1500.1(c). The determination that a categorical exclusion was the proper path to take should have taken place after scoping, reviewing the data call, and determining that the proposed actions did not have individually or cumulatively significant impacts.
2. Failure to properly assess significance
"Categorical exclusions, by definition, are limited to situations where there is an insignificant or minor effect on the environment." Alaska Ctr., 189 F.3d at 859; see also 40 C.F.R. § 1508.4. The Forest Service must document that the action to be undertaken is insignificant because the "threshold question in a NEPA case is whether a proposed project will 'significantly affect' the environment, thereby triggering the requirement for an EIS." Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208, 1212 (9th Cir. 1998) (citing 42 U.S.C. § 4332(2)(c)). The Forest Service did not do this. It failed to consider adequately the unique characteristics of the applicable geographic areas, the degree to which effects on the quality of the environment were controversial or the risks were unknown, the degree to which the CEs might establish a precedent for future actions with significant effects or represented a decision in principle about future considerations, the degree to which the actions might affect endangered species, and whether there existed cumulative impacts from other related actions. 40 C.F.R. § 1508.27(b).
a. Cumulative Impacts
 The Forest Service concedes that no cumulative impacts analysis was performed for the Fuels CE as a whole. The Forest Service must perform this impacts analysis prior to promulgation of the CE. See 40 C.F.R. § 1508.4. "[C]umulative impact analysis must be timely. It is not appropriate to defer consideration of cumulative impacts to a future date when meaningful consideration can be given now." Kern v. U.S. Bureau of Land Mgmt., 284 F.3d 1062, 1075 (9th Cir. 2002) (citing Neighbors of Cuddy Mountain, 137 F.3d at 1380).
That the Forest Service may perform an impacts analysis at the project level does not relieve it of its obligation to ensure that the Fuels CE as a whole has no cumulative impacts. Relying solely on a project level analysis is inadequate because it fails to consider impacts from past, present, or reasonably foreseeable future Fuels CE projects which may be located in close proximity, in the same watershed or endangered species habitat area. The CEQ regulations define "cumulative impact" asthe impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions.40 C.F.R. § 1508.7. The regulations further state that "[c]umulative impacts can result from individually minor but collectively significant actions taking place over a period of time." Id. The record of decision must contain a "useful analysis of the cumulative impacts of past, present, and future projects," which requires "discussion of how [future] projects together with the proposed . . . project will affect [the environment]." Muckleshoot Indian Tribe v. U.S. Forest Serv., 177 F.3d 800, 810 (9th Cir. 1999) (internal quotation marks omitted) (alterations in original).
Moreover, "NEPA [ ] prohibit[s] an agency from breaking up a large or cumulative project into smaller components in order to avoid designating the project a major federal action" that would be subject to NEPA analysis requirements. Churchill County v. Norton, 276 F.3d 1060, 1076 (9th Cir. 2001) (internal quotation marks omitted). As the Sierra Club points out, if assessing the cumulative impacts of the Fuels CE as a whole is impractical, then use of the categorical exclusion mechanism was improper. Cf. Nat’l Parks & Conservation Ass'n, 241 F.3d at 733 ("[T]he Parks Service's repeated generic statement that the effects are unknown does not constitute the requisite 'hard look' mandated by the statute if preparation of an EIS is to be avoided.").
 That an impacts analysis be done is of critical importance in a situation such as here, where the categorical exclusion is nationwide in scope and has the potential to impact a large number of acres. While dependent on the risk of wildfire, the Fuels CE could potentially be applicable beyond the wildland-urban interface to all units of the national forest system, totaling 192 million acres of land within 155 national forests and 20 national grasslands. National Forest System Land and Resource Management Planning, 65 Fed. Reg. 67514, 67514 (Nov. 9, 2000). The final notice published in the federal registry for the Fuels CE states that the projects surveyed represent a reasonable projection of its future use, 68 Fed. Reg. at 33815, which, at 2.5 million acres over 2 years, would exceed 1.2 million acres per year treated under the Fuels CE.
The Forest Service's assertion that the Fuels CE is not a nationwide program that would necessitate a cumulative impacts analysis because it has no immediate direct effects is disingenuous; the Fuels CE is precisely a nationwide program that was designed to implement the 10-year plan in a way that avoids the need for production of EISs or EAs. And, as demonstrated by the number of projects already planned or approved in just the Eldorado and Lassen National Forests, actions directly affecting the environment are being taken under the Fuels CE. In addition, as the Sierra Club points out, we rejected similar arguments regarding the hypothetical nature of causation in Citizens for Better Forestry v. U.S. Dep’t of Agric., 341 F.3d 961, 973-75 (9th Cir. 2003), and Kootenai Tribe of Id. v. Veneman, 313 F.3d 1094, 1115 (9th Cir. 2002). An environmental analysis must be performed even for broad programmatic actions. See 40 C.F.R.§ 1502.4(b); cf. Nat’l Parks & Conservation Ass'n, 241 F.3d at 733-34; Blue Mountains Biodiversity Project, 161 F.3d at 1213. …
SIERRA CLUB v. BOSWORTH 15954
b. Highly Controversial and Risks Uncertain
The Forest Service also erred in assessing significance by failing to consider the extent to which the impact of the fuels reduction projects on the environment was highly controversial and the risks uncertain. …
SIERRA CLUB v. BOSWORTH 15957
3. Requisite Specificity
 The CEQ regulations require that agency procedureson categorical exclusions include "[s]pecific criteria for and identification of those typical classes of action . . . [w]hich normally do not require either an environmental impact statement or an environmental assessment (categorical exclusions (§ 1508.4))." 40 C.F.R. § 1507.3(b)(2). Although the Department of Interior report revealed that twelve of the fuels treatment projects in the data call had individually or cumulatively significant effects, it neglected to identify what specific characteristics of those projects made those effects significant.
The report also listed other effects, which, although deemed "localized" or "temporary" in the projects analyzed, could conceivably have a cumulative effect if multiple Fuels CE projects were located in close proximity. The Fuels CE as written lacks the requisite specificity to ensure that the projects taken under it achieve the objective of hazardous fuels reduction, but do not individually or cumulatively inflict a significant impact. See> 40 C.F.R. § 1508.4. The Service must take specific account of the significant impacts identified in prior hazardous fuels reduction projects and their cumulative impacts in the design and scope of any future Fuels CE so that any such impacts can be prevented.
… We conclude that the Forest Service failed to assess properly the significance of the hazardous fuels reduction categorical exclusion and thus it failed to demonstrate that it made a 'reasoned decision' to promulgate the Fuels CE based on relevant factors and information. Accordingly, its promulgation of the Fuels CE was arbitrary and capricious. See Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378 (1989); see also 40 C.F.R. § 1505.1. We reverse the district court's summary judgment in favor of the Forest Service and remand this case for further proceedings as hereafter set forth. …
Posted by Dave on December 6, 2007 at 08:51 PM | Permalink
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Posted by: Ex-FS NEPA nerd
I thought the concurring decision was the most interesting part, where Judge Kleinfeld writes:
"The briefs and record control, and 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."
Makes you wonder why the Forest Service did not put material in the record to support what Judge Kleinfeld was looking for.
The 9th Circuit decision is clearly wrong in finding that a data call e-mail in September 2002 seeking data for a categorical exclusion means that everything after that is post-hoc rationalization. The whole point of NEPA is that a proposed decision is presented to the public, not that the agency treat the issues as if they had no idea what they were intending to do. That is why a preferred alternative is displayed in a draft EIS rather than treating all alternatives as equally likely.
Ex-FS NEPA nerd | Dec 7, 2007 6:44:17 PM
Posted by: Mike Dechter
I find this court ruling particularly disappointing. This disappointment stems from two reasons. The first is the Forest Service's lack of supporting data and analysis for the CE category. This is clearly pointed out as the main reason for the injunction by Judge Kleinfeld in the concurring decision. It seems we would have learned this lesson from loss of the timber category a few years back.
The second reason is the unabated extremism of the 9th Circuit Court's decisions. What I find most troubling with this decision is where the Court (pg. 15959 of the opinion) declares that because "...prescribed burning and logging have potential impacts on air, soil and water quality, and wildlife and forest resources," it is in the public interest to issue an injunction. This is troublesome because the Court completely fails to recognize the fact that the purpose of the CE category is to reduce the risk of high intensity wildfire, which a huge body of research shows has much greater effects than 'prescribed burning and logging'(and the effects are often directly mitigated by 'prescribed burning and logging'). In fact, the court doesn't even bother to reference or speak to the fact that high-intensity wildfires have substantial short- and long-term impacts to the environment and human health. Furthermore, by providing this justification for their issuance of the injunction the court is basically substituting their judgement for the professional judgement of natural resource managers in the Forest Service (and CEQ).
In addition to my disappointment, I'm shocked that this decision could come right on the heels of the Southern California wildfires without even a blip on the national media. I guess others, like many of us, are so fatigued with inter-governmental bickering that they are focusing their attention on the upcoming Holiday Season instead.
Mike Dechter | Dec 21, 2007 8:13:48 AM
Posted by: Dave Iverson
I don't see this decision as a bad one. The main problem is that the Forest Service can't seem to learn how (or doesn't want to learn how) to play the legal game. In this case, as in many others, the FS did not follow "due process". Here, in particular, the agency didn't properly set up the "category" in the first place. More generally, once a court venue is established, the FS too often fails to follow "due process" in clearly "briefing" the court on why they ought to prevail in court.
Judges play by a strict set of rules. When rules are violated, judges are unable -- except when they are playing beyond their rightful role -- to rule in favor of either side of a dispute, even if they feel so inclined.
Mike says: "What I find most troubling with this decision is where the Court (pg. 15959 of the opinion) declares that because '...prescribed burning and logging have potential impacts on air, soil and water quality, and wildlife and forest resources,' it is in the public interest to issue an injunction. This is troublesome because the Court completely fails to recognize the fact that the purpose of the CE category is to reduce the risk of high intensity wildfire, which a huge body of research shows has much greater effects than prescribed burning and logging (and the effects are often directly mitigated by prescribed burning and logging)."
I argue, by contrast: The court can't allow the agency discretion when the agency fails to follow the procedural requirements of the law. That's why, I believe, Judge Kleinfeld's concurring decision was worded as it was. Kleinfeld wanted to side with the FS, but couldn't because the Forest Service didn't play the legal game properly.
Dave Iverson | Dec 24, 2007 10:54:17 AM
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