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October 31, 2007

NEPA is Not the Problem

For years the Forest Service has complained about "process gridlock", "analysis paralysis", which it claims bog the agency down by slowing project implementation to a crawl and diverting dwindling agency funds. The finger of blame is often pointed at the National Environmental Policy Act (NEPA), and its procedural requirements for analysis and documentation. Most recently, in the Forest Service has announced preliminary plans it claims will trim about $90 million from its annual costs for "NEPA process".

WAIT A MINUTE! Is "NEPA" really the problem causing paralysis and gridlock? Isn't there more to decision making than just the analysis of potential environmental effects of a proposed action required by NEPA? Isn't there an array of laws, regulations, directives, policies, and other factors that impose process rquirements, and costs, for decision making by a government agency? Is the issue being looked at too narrowly by focusing only on NEPA, or is NEPA mistakenly being blamed for the broad spectrum of legal and other requirements for agency decision making?

The recent A-76–related NEPA "Feasibility Study" (internal, not available for public review) (Jan 14 Update: Feasibility Study now daylighted here: [PDF]) notes:

… The term "NEPA process" is commonly used … to refer to suite of activities including project identification, information gathering, environmental analysis, compliance with substantive environmental laws, and responding to administrative and legal challenges. In many cases, [the NEPA process] is viewed as the agency decision-making process. (emphasis added)

So which is it? Are we talking about the analysis of potential environmental effects of a proposed action as required by NEPA, or are we talking about the entire administrative process the Forest Service uses to make proposals and decisions for actions, including the process requirements of other laws and regulations, and the political, social, budgetary, and other considerations that drive decisions to act?

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?

If form indeed follows function, isn't it imperative to thoroughly think through what the agency does before trying to create an organization to do it? Most certainly, the Forest Service does more than "NEPA". However, its "NEPA" Feasibility Study appears at times to encompass not just NEPA, but administrative decision making.

A similar fuzzing of lines occurs in the Forest Service’s 1900-1 course, which while being billed as "NEPA" training, seems to encompass many of the broader aspects of administrative decision making. The curriculum for this course is being revisited, and it would seem equally important to clarify whether this is a "NEPA" course or an "administrative decision making" course. If it is the former, then where do Forest Service employees receive formal instruction in decision making? If it is the latter, by focusing on NEPA does it do justice to the other aspects of administrative decision making?

Just below is a graphic representation of the many legal and other influences on administrative decision making. While there is some overlap with NEPA, there are aspects of each that fall partially, and sometimes entirely, outside of NEPA. Together, these make up the minimum components for any Forest Service decision to take action. Where are these elements of decision making addressed in any discussion of organization or training designed to alleviate process gridlock?

Where Key acronyms (With Wikipedia hyperlinks) are:

Note: We recognize that both the chart and list above exclude some important laws that need to be fleshed out in training and education. Note further that dates associated with laws are just the beginning dates for laws that have since been amended.
Isn't it time to starting thinking more explicitly about "function" — the elements of decision making — before charging off after organizational "form" and related training needs? Training is indeed important, but if the Forest Service never questions fundamentals of process, efforts to restructure/revamp training are likely to be the stuff of "rearranging deck chairs…" rather than much-needed re-framing.

For further consideration, here is a link to a PowerPoint that fleshes out some preliminary thoughts as to how the Forest Service might better organize its thinking/training/process to help employees deal with the broad task of decision making, rather the focusing in on what is but one element of the "Decision Process".

Posted by Dave on October 31, 2007 at 02:39 PM | Permalink


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Posted by: Wolfy

The NEPA feasibility study is all about saving money; pure and simple. It really has nothing to do with creating a new process out of a flawed process. The desired direction that the forest service is leaning toward will add more layers of decision-making, will complicate the process even further, and will mostly exclude the public from any real input. The forest service has the idea that almost all the NEPA employees in the future will have offices in six regional “cluster” centers. The “analysis”, if you can call it that, will be done remotely. The analysts will probably never see the piece of ground that they are analyzing. The analysts will also most likely never talk to the public that they serve.

No, the real intent of the study is too reduce the $300+ million spent annually on “NEPA” by 25%. That means that they intend to reduce the full-time positions doing NEPA now by about 25%. The costs of building and servicing the new regional centers, of uprooting or eliminating employees jobs, and the cost of all the extra layers of decision space are not considered in the study. Neither are the costs of less service to the public and increased environmental harm considered in the study.

The problem with the system is not NEPA, its all the political jockeying that the decision makers build into the system. By heaping more crap into the decision making process, the deciders make more work than necessary and create their own job security. The problem is not with NEPA or any other regulatory act; it’s the lack of skilled leadership from the chief all the way down to the district rangers. Many of the big wigs in the forest service today got their jobs by being “diversified” or by being a “company man/woman”. Most lack the intestinal fortitude to make a sound decision and follow through with it.

The NEPA study is just one more nail in the forest service’s coffin lid. The service is being dismantled from within. And the chief is only worried about how her uniform looks on camera or that she doesn’t get any flack from the lower ranks and looks good to the media.
We're sunk!

Wolfy | Nov 2, 2007 5:16:07 PM

Posted by: Susan Y-S

Hi Dave,
You make some good points. However, the major problem with NEPA and the FS is that the FS has never and doesn't want to ever use NEPA as the management tool it could be. Somewhere along the line the agency chose to make NEPA a burden rather than accept it as a tool we could and should be using. the result has been millions of dollars in litigation to fight doing NEPA, millions of dollars to "redo" NEPA. Hence the view that NEPA is a burden. Although I'm not to the point where I believe CEQ when they tell me I could do NEPA in less than a 100 pages, I do think we could use it as a critical decision tool; along with the decision document. I think if we could ever convince people that it was a part of their job, not something they HAD to do, outside of the job it would be a tremendous benefit to the agency. But salmon swimming up stream have more success than I had trying to convince people. Good luck.


Susan Y-S | Nov 5, 2007 3:20:50 PM

Posted by: Dave Iverson

Hi Susan,

Nice to hear from you again. I certainly can echo your sentiment: "salmon swimming up stream have more success than I had trying to convince people."

All my Internet (and Listserv) attempts to get people talking to one another, thereby learning from one another have largely been feeble, mostly-failed attempts. But I will keep trying no matter. All one can do is plant seeds, and try to work the soil a bit in order that someday maybe a few of the seeds will sprout. With luck, and a little water, maybe seeds of thought will grow. But it all takes time...

Dave Iverson | Nov 6, 2007 8:54:53 AM

Posted by: Ex-FS NEPA nerd

Good post. But let me suggest a different way of looking at it.

One can't deny that the A-76 process is largely aimed at reducing costs, but at least it studies the matter extensively and begs for new ideas. NEPA folks may want to make the best of the situation and embrace the process to forcfully advocating for a more efficient, and better, NEPA process.

For example:

- NEPA documents should be viewed by line officers as an all-encompassing briefing and analysis document rather than a burdensome process on its own. Thus, your graphic should have NHPA, ESA, CWA, etc. all within the NEPA bubble. Perhaps politics would be the only thing outside of the NEPA bubble.

- the draft NEPA documents should not be put out the door half-done. Wait until a document is considered done, then get the public review of the document. Way too much work is blamed on the NEPA process because "draft" documents are issued with known flaws and missing information. You can measure whether a NEPA system is working well by how much work/time is needed between draft and final -- a good system would have little work correcting a draft document.

- If Forest Planning is going to be diminished under the new planning regs, then the project level NEPA will have to carry a much greater burden of analysis. This is intrinsicly neither good or bad, just a trade-off of when the work is done. Some issues may be more efficiently analyzed away from the Forest Plans, some more efficiently analyzed in the Forest Plans. If attention is paid to which is which, some greater efficiencies can be found in the planning/NEPA process.

- Many of the difficult issues that increase the costs of NEPA documents are costly because the FS throws more analysis and studies at the problem, when the problem is a conflict in values. Efficiencies can be gained by finding better ways to address value conflicts without throwing more expensive science and studies at the matter.

Good luck to all in navigating the A-76 process. I hope you can use the painfull process to generate a better result.

Ex-FS NEPA nerd | Nov 7, 2007 12:32:51 PM

Posted by: Dave Iverson

Here are a few thoughts for all, relative to Ex-FS NEPA nerd's "different way of looking at it" ...

No doubt both NEPA procedures and the decision making process need to be studied and new ideas cultivated. A first question is, Which is the A-76 process looking at? Is it NEPA procedures, or the decision making process as a whole? Whether you are a believer that NEPA documents should be "all-encompassing", or merely a component of a larger package of material that informs decision making, the important point is that the A-76 analysis to date has not made clear which process it is looking at. Is it the analysis of environmental effects required to comply with NEPA and the Council of Environmental Quality (CEQ) regulations, or the whole decision making process? Before doing a meaningful study, it should be clearly defined what is being studied.

Another subject for study and new ideas is whether or not NEPA documents SHOULD be all-encompassing briefing and analysis documents, which subsume all other considerations that go into decision making. Certainly they could, and there are arguments why this might be a good idea. The CEQ regulations implementing NEPA provide one reasonable process and framework for agency decision making. However, it is not the only process and framework, nor necessarily the best. The issue then is whether it becomes the Forest Service vehicle for decision making by default, without serious consideration of whether or not doing so is a good idea, and without examining the drawbacks of using NEPA as the complete vehicle for decision making.

The diagram (in the post) was intended to show that there are overlaps between the requirements imposed by NEPA and the requirements that imposed by other laws, regulations, and factors that influence decision making. In order to comply with program requirements like the special use or mining regulations, the Endangered Species Act, the Clean Water Act, or show consistency with a Forest plan, the Forest Service has to do an analysis of environmental effects. However, by overlapping these circles, what the diagram was intended to show is that decision makers must also analyze and evaluate factors that have nothing to do with environmental effects in order to fully comply with these other requirements, or the analysis of environmental effects must be different than the analysis of environmental effects that would comply with the requirements of NEPA.

For example, under special use regulations, in addition to evaluating the potential environmental impact of the proposed use on National Forest resources, the authorized officer may have to evaluate whether or not a proposed use will interfere or conflict with other authorized uses or administrative use, whether the proponent is technically and financially capable of undertake the proposed use, or whether the proposed use is in the public interest. Under mining regulations, in addition to insuring that a proposed mine plan minimized adverse environmental consequences to the extent feasible, the authorized office may have to calculate an acceptable reclamation bond, or determine if proposed operations are within a properly located mining claim. For any activity authorized or carried out by the Forest Service, a determination needs to be made as to whether are not the activity should occur on the National Forest, for considerations in addition to the potential environmental consequences of the activity. Does a local mill need Forest product to maintain employment? Is there public demand for a developed ski area in this location? These are evaluations that must be made and documented, yet which are not tied exclusively to environmental consequences.

As for the potential differences in analysis of environmental effects, NEPA allows agencies to proceed when information is lacking or unavailable under certain circumstances, requiring only disclosure of the reason for proceeding without the information. Other laws, such as the ESA, CWA and NFMA, may not. If there is a Forest plan standard that must be met, or a listed species that may be adversely affected by the proposed action, or a potential discharge of a pollutant into waters of the United States, analysis is required to show that these substantive requirements to be consistent with the Forest Plan, certify compliance with the CWA, or insure a listed species is not jeopardized will be met. Therefore, an analysis of environmental effects with available information that meets the requirements of NEPA, may not be sufficient to meet these other requirements. These laws may require more analysis than is required by NEPA to show that a certain level of environmental protection will be maintained or achieved by the action.

While the analysis of implications that are not potential environmental effects, or analysis of environmental effects above and beyond what is required by NEPA in order to comply with other laws, could be encompassed in a NEPA document, the question is whether that is the best way to insure all of these requirements are being met. The danger in putting these analyses in the NEPA document is that they get lost or subsumed because of the focus on NEPA, which causes ID teams and decision makers to either forget about them altogether, or fail to distinguish what is being done to meet requirements imposed by NEPA and what is being done to meet other requirements, thereby applying the wrong standard for determining adequacy of the analysis.

In short, the danger of only having a hammer in the toolbox is that everything then begins to look like a nail. The danger of having only NEPA as a decision making tool is that ID teams and decision makers lose sight of their other obligations, and they are either not done at all or done to the wrong standard, because we are only looking at the decision through the NEPA lens.

So, our first suggestion is that the A-76 group (alternatively the Business Process Reenginnering group) think about these questions, and be clear as to whether they are studying NEPA procedures, or the broader process of making decisions, and realizing that these are not one in the same.

Hopefully, this will lead to further discussion about how decision making should be done, whether it should be done entirely in the context of NEPA, or whether NEPA should just be a component of decision making. The comments so far seem to suggest there is recognition of problems both in NEPA and decision making that need to be fixed. Before we can set about fixing anything, we should be clear what it is we are fixing. If the problem is leaky plumbing or faulty wiring, the hammer may not do us much good.

Dave Iverson | Nov 14, 2007 11:41:24 AM

Posted by: Melanie

Hey, it's great to find a place where this subject is being debated but I notice everything is from 2 years ago. Anything new? I am researching the FS and the barriers to adaptive mgt with a side of "how does the adverserial atmosphere of FS and enviro groups fit in?" so I would love to have more opinions from those in the trenches. I will keep it anonymous but would like some real info on how it's done (NEPA, planning and mgt decisions, etc). I'll check back soon.

Melanie | Apr 15, 2009 4:12:46 PM

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