Forest Service Looks to Streamline NEPA
The US Forest Service recently proposed a significant revision to Chapter 30 of the Environmental Policy and Procedures Handbook - the agency’s rules for implementing the National Environmental Policy Act (NEPA) [FSH 1909.15]. The revision, called an interim directive, would allow the agency to utilize a broader application of the categorical exclusion (CE) to avoid preparing an Environmental Assessment (EA) for certain projects. Its most dangerous aspect would permit an agency official to invoke a CE even when extraordinary circumstances are present. You can view the full text of the agency’s Notice of Proposed Interim Directive in the Federal Register at 66 FR 48412-48416.
NEPA Background
Under NEPA, Congress charged the Council on Environmental Quality (CEQ) with the task of promulgating rules and regulations to implement the act. The Forest Service, and all other federal agencies, must follow these regulations and draft their own NEPA guidelines consistent with them. As part of their work, the CEQ defined a categorical exclusion as, “a category of actions which do not individually or cumulatively have a significant effect on the human environment... and for which, therefore, neither an environmental assessment nor an environmental impact statement is required....”
[40 CFR §1508.4]. This regulation was created to reduce unnecessary delay in undertaking routine activities, such as painting a government building, or mowing a lawn. However, this section also provides for extraordinary circumstances, when a “normally excluded action may have a significant environmental effect.” In these situations, the agency must conduct an EA to determine the significance of any environmental impact. There are currently a minimum of seven extraordinary circumstances defined by the USFS, such as the presence of steep slopes, inventoried roadless areas, and threatened or endangered species [1909.15 §30.3(2)].
Implications of the Interim Directive
Under the proposed redefinition of extraordinary circumstances [§30.3 and §30.5], an agency official could decide that no significant environmental effect would result from a planned project, even if a condition currently defined as an extraordinary circumstance exists. The official could subsequently issue a CE, in essence making a significance determination without completing an EA and Finding of No Significant Impact (FONSI). Since NEPA was intended to establish a process for determining significance, this seems to contradict the intent of Congress. Furthermore, issuing CEs on a case-by-case basis is an oxymoron, since CEs are “categories of actions” by definition [40 CFR §1508.4].
The revision notice states that the intent of these rule changes is “to facilitate consistent interpretation and application of NEPA requirements....” [66FR 48412]. But how can issuing CEs on a case-by-case basis engender consistency? In fact, weakening a guideline for land managers will result in less consistent application of CEs. This inexorably leads to the conclusion that the drafters of this notice are either shortsighted or deceiving the public about their intent.
Another proposed change, although subtle, is very important. In the current handbook, extraordinary circumstances are not limited to the seven specific circumstances listed. The Handbook revisions would change §30.3(1)(b), §30.3(2) and §30.5 by deleting the phrase “include, but are not limited to,” in effect narrowing the definition of these extraordinary circumstances.
Judicial Review of Categorical Exclusions
Until very recently, there has been little judicial review of the use of categorical exclusions. When cases have been brought forth, courts have examined them in two different ways: under the “arbitrary and capricious” standard of the Administrative Procedures Act; or as an agency NEPA decision similar to a FONSI.1 Almost all cases cite Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 109 S. Ct. 1851, 104 L. Ed.2d 377 (1989), in which the Supreme Court limited NEPA judicial review to whether or not the agency has taken a “hard look” at environmental consequences. If so, then courts have generally extended deference to the agency’s decision.
There is a small, but potent supply of case law (particularly in the 7th and 9th Circuits) regarding the illegal use of a categorical exclusion by a federal agency. If a proposed action differs from the category under which its CE was issued, then courts have generally demanded an EA or EIS. See Mississippi ex rel. Moore v. Marsh, 710 F. Supp. 1488 (S.D. Miss. 1989). Courts have also set aside CEs when extraordinary circumstances exist. Rhodes v. Johnson, 153 F.3d 785; 1998 U.S. App., Washington Trails Association v. United States Forest Service 935 F. Supp. 1117 (W.D. Wash. 1996), Jones v Gordon 792 F. 2d 821 (9th Cir. 1986), California v. Cal. Coastal Commission, 150 F.Supp. 2d 1046 (N.D. Cal. 2001), Bensman v. USFS, 984 F.Supp. 1242 (W.D. Mo. 1997).
Conclusion
The USFS proposed interim directive appears to have been crafted specifically to circumvent court rulings requiring an EA when extraordinary circumstances are present. By seeking to expand its ability to invoke a categorical exclusion, and thereby implement more environmentally destructive projects on public lands, the Service shows a blatant disregard for the intent of the National Environmental Policy Act.
— Derek Goldman is a graduate student in Environmental Studies at the Univ. of Montana, and a summer intern at Wildlands CPR.
Footnotes
1 Sheldon, K and M. Squillace (1999) The NEPA Litigation Guide, American Bar Assoc. Publishing: Chicago, IL.
NEPA Background
Under NEPA, Congress charged the Council on Environmental Quality (CEQ) with the task of promulgating rules and regulations to implement the act. The Forest Service, and all other federal agencies, must follow these regulations and draft their own NEPA guidelines consistent with them. As part of their work, the CEQ defined a categorical exclusion as, “a category of actions which do not individually or cumulatively have a significant effect on the human environment... and for which, therefore, neither an environmental assessment nor an environmental impact statement is required....”
[40 CFR §1508.4]. This regulation was created to reduce unnecessary delay in undertaking routine activities, such as painting a government building, or mowing a lawn. However, this section also provides for extraordinary circumstances, when a “normally excluded action may have a significant environmental effect.” In these situations, the agency must conduct an EA to determine the significance of any environmental impact. There are currently a minimum of seven extraordinary circumstances defined by the USFS, such as the presence of steep slopes, inventoried roadless areas, and threatened or endangered species [1909.15 §30.3(2)].
Implications of the Interim Directive
Under the proposed redefinition of extraordinary circumstances [§30.3 and §30.5], an agency official could decide that no significant environmental effect would result from a planned project, even if a condition currently defined as an extraordinary circumstance exists. The official could subsequently issue a CE, in essence making a significance determination without completing an EA and Finding of No Significant Impact (FONSI). Since NEPA was intended to establish a process for determining significance, this seems to contradict the intent of Congress. Furthermore, issuing CEs on a case-by-case basis is an oxymoron, since CEs are “categories of actions” by definition [40 CFR §1508.4].
The revision notice states that the intent of these rule changes is “to facilitate consistent interpretation and application of NEPA requirements....” [66FR 48412]. But how can issuing CEs on a case-by-case basis engender consistency? In fact, weakening a guideline for land managers will result in less consistent application of CEs. This inexorably leads to the conclusion that the drafters of this notice are either shortsighted or deceiving the public about their intent.
Another proposed change, although subtle, is very important. In the current handbook, extraordinary circumstances are not limited to the seven specific circumstances listed. The Handbook revisions would change §30.3(1)(b), §30.3(2) and §30.5 by deleting the phrase “include, but are not limited to,” in effect narrowing the definition of these extraordinary circumstances.
Judicial Review of Categorical Exclusions
Until very recently, there has been little judicial review of the use of categorical exclusions. When cases have been brought forth, courts have examined them in two different ways: under the “arbitrary and capricious” standard of the Administrative Procedures Act; or as an agency NEPA decision similar to a FONSI.1 Almost all cases cite Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 109 S. Ct. 1851, 104 L. Ed.2d 377 (1989), in which the Supreme Court limited NEPA judicial review to whether or not the agency has taken a “hard look” at environmental consequences. If so, then courts have generally extended deference to the agency’s decision.
There is a small, but potent supply of case law (particularly in the 7th and 9th Circuits) regarding the illegal use of a categorical exclusion by a federal agency. If a proposed action differs from the category under which its CE was issued, then courts have generally demanded an EA or EIS. See Mississippi ex rel. Moore v. Marsh, 710 F. Supp. 1488 (S.D. Miss. 1989). Courts have also set aside CEs when extraordinary circumstances exist. Rhodes v. Johnson, 153 F.3d 785; 1998 U.S. App., Washington Trails Association v. United States Forest Service 935 F. Supp. 1117 (W.D. Wash. 1996), Jones v Gordon 792 F. 2d 821 (9th Cir. 1986), California v. Cal. Coastal Commission, 150 F.Supp. 2d 1046 (N.D. Cal. 2001), Bensman v. USFS, 984 F.Supp. 1242 (W.D. Mo. 1997).
Conclusion
The USFS proposed interim directive appears to have been crafted specifically to circumvent court rulings requiring an EA when extraordinary circumstances are present. By seeking to expand its ability to invoke a categorical exclusion, and thereby implement more environmentally destructive projects on public lands, the Service shows a blatant disregard for the intent of the National Environmental Policy Act.
— Derek Goldman is a graduate student in Environmental Studies at the Univ. of Montana, and a summer intern at Wildlands CPR.
Footnotes
1 Sheldon, K and M. Squillace (1999) The NEPA Litigation Guide, American Bar Assoc. Publishing: Chicago, IL.
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