February 28, 2008
Mark Rey Dodges Contempt of Court Charges
Missuola, MT — For several months Federal Judge Donald Molloy has threatened to throw the Forest Service's USDA boss Mark Rey in jail for foot-dragging relative to Molloy's specific judicial mandate to comply with NEPA relative to fire retardant drops on national forests. Molloy believed that an incarceration threat for "contempt of court" might spur the Forest Service into action to comply with the National Environmental Policy Act and the Endangered Species Act relative to fire-related government actions—specifically, in this case, fire retardant drops. Yesterday, Judge Molloy let Rey off the hook — for now — but took the opportunity to scold the Forest Service and Rey for what Molloy called "systematic disregard of the rule of law." Here's more from The Missoulian, Feb 28:
… U.S. District Judge Donald Molloy cleared Rey, the Bush administration's top forest official, and the Forest Service of contempt and withdrew his threat to jail Rey or ground all fire retardant air tankers until the agency evaluated the environmental impact of the chemical slurry.I'm inclined to think it an institutional matter — the Forest Service believes it is on a divine mission to do good work — to do "good projects on the ground" — instead of rightfully seeing itself as an agency of government that must justify its work both to three branches of government as well as to the American people in complying with various environmental statutes. More details here, related to NEPA compliance responsibilites.
Molloy did not rule on the merits of the Forest Service's environmental analysis, and the watchdog group whose lawsuit prompted the showdown said it planned to take new legal action to challenge the agency's finding that aerial retardant causes little harm to fish and other aquatic creatures.
"We accomplished what we wanted to do, which was to make the Forest Service follow the law," said Andy Stahl, director of the Forest Service Employees for Environmental Ethics, based in Eugene, Ore.
In his testimony, Rey apologized for the Forest Service's tardiness in following the judge's order to complete an environmental analysis of the potential harm from ammonium phosphate, the primary ingredient in retardant dropped on wildfires.
But Molloy was not mollified and forced Forest Service employees in their testimony to acknowledge their "systematic disregard of the rule of law."
Before announcing his ruling, Molloy delivered a blistering criticism of the Forest Service, saying only a threat of contempt prompted the agency to comply with the nation's top environmental laws - the National Environmental Policy Act and the Endangered Species Act.
The judge also questioned the federal government's battery of lawyers who handled the case, dismissing their "attempts" at explaining the delays and their "parsing of words to create unjustifiable arguments."
Rey and other Forest Service officials maintained they had acted in good faith, but Molloy said it was "shameful" that it took a threat of contempt to make the agency comply with the law.
"Something's remiss," Molloy said. 'I don't know if it's the lawyering or an institutional matter." …
NEPA Outsourcing Dead, for Now
On February 20, Forest Service Chief Gail Kimbell officially killed 'NEPA outsourcing' — that is, "put on hold" both NEPA related OMB-led "competitive sourcing" as well as Forest Service-led "NEPA Business Process Reengineering". In a letter to Forest Service top brass, Kimbell laid out these reasons:
… the recently-enacted Omnibus Appropriations Act directed that we not use any funds for further competitive sourcing activities. At a time when we are in the midst of ongoing Transformation efforts and the continuing transition to the Albuquerque Service Center, we want to avoid additional disruption and confusion that could come with overhauling our critical NEPA processes.But Chief Kimbell left the door ajar for future tinkering, and suggested that result from the NEPA Feasibility Study [PDF] provide guidance for NEPA Streamlining, do be done "locally" for now, but perchance more broadly in the future:
Recognizing that NEPA processes are at the heart of our decision-making, it is important that we retain a strong linkage between Forest Service employees and those analytical procedures. It remains important, however, for us to seek long-term strategies to improve NEPA efficiency. I appreciate the comprehensive analysis and informative data in the Feasibility Study. It serves as a foundation for future work. Results from the Study—coupled with open communication—will help us identify and analyze best strategies for streamlining NEPA processes in the future.Two quick points: First, NEPA is not an analytical procedure, and mistaking it for such perpetuates a Forest Service culture that continues to lose in court and frustrate both the courts and the public. Second, just what might one find in the NEPA Feasibility Study to provide useful guidance toward "best strategies" for streamlining NEPA compliance? Once again we ask, " What will it take to get the agency to think about the distinctions between procedures required by NEPA and the process of making decisions regarding management of the National Forests?" And we reiterate our earlier plea for reframing.