The Forest Service’s Proposed Amendment to the Eastside Screen’s 21-Inch Rule
and the NEPA Process
By, Kenneth Bozarth
Kenneth Bozarth is a rising 3rd year law student at Vermont Law School
This spring, the Forest Service announced that it is amending the “21-inch rule.” This rule prohibits the logging of trees over 21 inches in diameter on Oregon’s eastside forests. It was put in place in 1994 to put a stop to rampant logging of large and old trees. The planned amendment would alter the forest plans of the Umatilla, Wallowa-Whitman, Malheur, Ochoco, Deschutes, and Fremont-Winema national forests to again allow for the logging of large trees over 9 million acres. The Forest Service is fast tracking this planning process. They plan to scope the amendment concurrent with the release of a draft EA on August 11, followed by an objection filing period this fall in order to issue a final decision in Spring of 2021.
Why are Large, Old Trees Important?
Aside from the beauty of large and older trees, these trees play an important role in the environment. Preserving large trees is important in the effort to fight climate change. Trees take carbon dioxide out of the atmosphere, but this carbon dioxide is released back into the atmosphere when they are harvested. Additionally, tall trees with a large leaf area remove pollutants like ozone and nitric oxide from the atmosphere more effectively than smaller trees. Further, many animals nest or shelter in the cavities of these trees. Many indigenous tribes and people rely on the forests for medicine, food, shelter, and spiritual and mental health. Many people also enjoy the beauty of large trees and use forests for recreational and spiritual purposes. Because of the various ecological and social effects of amending the “21-inch” rule, it is understandable that the public would want to know what the Forest Service is planning to do. However, at this point, the Forest Service has not disclosed what their plan is regarding a specific amendment. Instead, they have expressed only that an amendment to the “21-inch” rule will be made. How can the public still engage in this process moving forward and what issues can they bring to the Forest Service’s attention?
The National Environmental Policy Act
The National Environmental Policy Act (NEPA) is the “basic national charter for protection of the environment.” NEPA contains “action-enforcing” provisions that ensure agencies follow the Act. NEPA procedures inform federal agencies on how to meet goals in the Act. Under the Act, environmental information must be made available to public officials and citizens before actions are taken. Additionally, “The NEPA process is intended to help public officials make decisions that are based on understanding of environmental consequences, and take actions that protect, restore, and enhance the environment.” Under NEPA, federal agencies must prepare an Environmental Impact Statement (EIS) on the impacts of a proposed action that may “significantly affect the quality of the human environment.” Robertson v. Methow Valley Citizens Council illustrated that this statutory requirement serves NEPA’s “action-enforcing” purpose in two ways. The agency will reach its decision by carefully considering detailed information on significant environmental impacts and will make relevant information available to the public to strengthen the decision-making process. If an agency is uncertain whether a proposed action may have a significant effect on the environment, it may first prepare a more concise Environmental Assessment (EA).
Additionally, Federal Agencies must undergo a scoping process. Scoping is important because it refines a proposed action, defines the responsible official, identifies preliminary issues, and identifies individuals who may be interested or affected. Scoping results are used to refine issues, determine an interdisciplinary team, determine public involvement methods, set analysis criteria, explore possible alternatives, and explore environmental effects of possible alternatives. And, importantly, comments made during the official scoping comment period establishes standing, allowing for issues raised during the comment period to be raised in court. If comments are not submitted during the official scoping comment period, the public loses its chance to object to a draft decision.
During a scoping process, the agency determines the scope of issues that will be covered in an EA or an EIS. The agency also will also assess the impacts that a proposal will have and whether an EA or an EIS is required. There are some differences between an EA and an EIS. An EA is more concise than an EIS and covers the purpose of the proposal, the need of the proposal, alternatives, and a short review on how the environment will be impacted. After an EA is conducted, the agency will either issue a finding of no significant impact (FONSI) or determine that a significant impact appears likely. If a significant impact appears likely, the agency will conduct an EIS. An EIS covers everything that an EA covers but is more comprehensive. An EIS will be more detailed regarding possible alternatives to the proposal and will take a “hard look” at the cumulative impacts of the proposal. The EIS will also discuss “all existing and reasonably foreseeable future development within the project area.”
Interestingly, for this amendment process, the Forest Service is implementing the scoping process concurrently with an EA and chose not to conduct an EIS. “A Citizen’s Guide to the NEPA Process” explains that “a Federal agency must prepare an EIS if it is proposing a major federal action significantly affecting the quality of the human environment.” In helping to determine whether there will be significant effects and whether to conduct an EIS without an EA, the agency will assess whether the proposal “normally requires an environmental impact statement.” Conversely, an agency must prepare an EA if the agency is “uncertain” whether or not there will be significant affects. So, by choosing an EA over an EIS early in this process, the Forest Service is illustrating that the agency is uncertain or does not know whether there will be significant effects to the environment after an amendment to the “21-inch” rule or they are assuming there will be no significant effects.
Further, an agency has discretion in deciding how to involve the public during a NEPA analysis. Under 36 C.F.R 220.4(e), the USFS NEPA Regulations, “Because the nature and complexity of a proposed action determine the scope and intensity of analysis, no single scoping technique is required or prescribed.” Agencies also have great discretion under CEQ Regulation, 40 CFR § 1501.7. For example, an agency may set page limits on environmental documents, set time limits, and combine the environmental assessment process with the scoping process. The responsible official in the agency also has the discretion under USFS Planning Regulation, 36 C.F.R. 219.4, to “determine the scope, methods, forum, and timing of those opportunities. The Forest Service retains decision making authority and responsibility for all decisions throughout the process.” However the agency decides to involve the public, providing an opportunity to comment on scoping and the EIS/EA it informs are two separate obligations under NEPA that cannot be satisfied using one combined public comment period. Typically, when an agency decides to conduct an EIS or an EA, the agency will conduct scoping, notify the public that an EIS/EA is being prepared and allow for public comments, prepare a draft EIS/EA based on information provided through the scoping process, allow for further public comments, and then release a final EIS/EA along with a draft decision triggering an objection filing period. Here, the Forest Service is sidestepping the requirement to separately scope this proposed plan amendment.
How will a Concurrent Scoping and EA Affect Public Engagement?
EIS scoping and public comment procedures allow for the public to be engaged in a way that allows for an agency to take the public’s concerns into consideration before the agency conducts the EIS. However, by choosing to engage the public through scoping and public comments at the same time an EA is being conducted, and not following EIS scoping and public comment procedures for an EA, it is harder for the public to be assured that an agency is considering the full extent of what the public has to offer concerning the proposal. Additionally, the process may feel rushed. An EA and EIS will be more organized when the Forest Service utilizes public comment to reach an agreement on “the scope, project definition, and purpose and need before technical environmental analyses are started.” It is more effective if the public’s ecological and sociological concerns are raised before an actual study is conducted so that the study is designed to include these concerns from the very beginning. By scoping concurrently with an EA, the forest service has limited crucial planning time to identify possible alternatives to the proposal and assess environmental issues raised by the public. Because of this, public engagement becomes even more crucial.
What Should a NEPA Comment Look Like?
The release of the Forest Service’s draft EA will trigger a 30-day comment period. Since the agency is conducting scoping concurrent with the release of its draft EA, this comment period will be the only opportunity for the public to provide input on the proposed plan amendment prior to the agency’s release of the final EA and draft decision. It’s important for the concerned public to draft clear and concise comments. The comments should be edited and organized. While the comments should be persuasive, the comments should also be respectful. Further, “comments that are solution oriented and provide specific examples will be more effective than those that simply oppose the proposed project.” And, “comments that contribute to developing alternatives that address the purpose and need for the action are also effective.” And, “In drafting comments, try to focus on the purpose and need of the proposed action, the proposed alternatives, the assessment of the environmental impacts of those alternatives, and the proposed mitigation.”
Should the Forest Service have used an EIS from the start?
This amendment will apply to over 9 million acres of ecologically diverse lands. The scope of the effects on water resources, wildlife habitat, and carbon storage will be significant even if the amendment is narrowly focused. Hanley v. Kleindienst found that the determination of whether to conduct an EIS revolved around the word “significantly.” The Court reasoned that by adding the word “significantly”, Congress intended that “the agency find a greater environmental impact would occur than from any major federal action.” The possibility of a proposed amendment applying to six national forests is not just “any major federal action.”This is not a project level amendment. This is a forests-wide amendment to a standard that has been protecting large and old trees for over twenty-five years across six national forests. Thus, a comprehensive EIS is warranted.
Cascadia Wildlands v. U.S. Forest Service quoted a previous case, Smith v. U.S. Forest Service, as stating “the decision to harvest timber on a previously undeveloped tract of land is an irreversible and irretrievable decision which could have serious environmental consequences.”
Cascadia Wildlands stated that a substantial decrease in acreage and construction of logging roads “may have significant consequences to the PWA's unique attributes.” It is difficult to argue that each of the six national forests in our case do not have unique attributes that may be significantly affected by an amendment to the Eastside Screen’s 21-inch rule. Not conducting an Environmental Impact Statement is a disservice to each national forest, the wildlife that inhabits them, and the public who enjoys them.
“A Citizen’s Guide to the NEPA Process” explains that “a Federal agency must prepare an EIS if it is proposing a major federal action significantly affecting the quality of the human environment.” Whether something “significantly” affects the environment depends on the intensity of the impacts of the proposed amendment. The following “significance factors” help agencies make that determination:
(1) Impacts that may be both beneficial and adverse. A significant effect may exist even if the Federal agency believes that on balance the effect will be beneficial.
(2) The degree to which the proposed action affects public health or safety.
(3) Unique characteristics of the geographic area such as proximity to historic or cultural resources, park lands, prime farmlands, wetlands, wild and scenic rivers, or ecologically critical areas.
(4) The degree to which the effects on the quality of the human environment are likely to be highly controversial.
(5) The degree to which the possible effects on the human environment are highly uncertain or involve unique or unknown risks.
(6) The degree to which the action may establish a precedent for future actions with significant effects or represents a decision in principle about a future consideration.
(7) Whether the action is related to other actions with individually insignificant but cumulatively significant impacts. Significance exists if it is reasonable to anticipate a cumulatively significant impact on the environment. Significance cannot be avoided by terming an action temporary or by breaking it down into small component parts.
(8) The degree to which the action may adversely affect districts, sites, highways, structures, or objects listed in or eligible for listing in the National Register of Historic Places or may cause loss or destruction of significant scientific, cultural, or historical resources.
(9) The degree to which the action may adversely affect an endangered or threatened species or its habitat that has been determined to be critical under the Endangered Species Act of 1973.
(10) Whether the action threatens a violation of Federal, State, or local law or requirements imposed for the protection of the environment.
Large trees including Grand firs, and the six national forests where they are located, are “ecologically critical areas” for numerous species of animals. Environmental Protection Information Center v. Blackwell states that even if “an area is not designated as critical habitat does not mean that its potential destruction should not be considered significant for purposes of NEPA.” Just one of the affected forests, the Umatilla National Forest, is described by the United States Department of Agriculture as having “1.4 million acres of diverse landscapes and plant communities.”
Further, scientists disagree on whether wildfires are more prevalent now than historically, more intense than historically, whether grand-fir trees are a major issue in wildfire suppression, and a host of other issues surrounding this possible amendment. This has been clearly illustrated in the workshops and science forum held for the public by the Forest Service. An EIS should be conducted to address these issues in detail. The various workshops and the science forum held by the Forest Service illustrated the fact that a proposed amendment to the 21-inch rule is a topic that is highly controversial.
If the National Forest Service is successful in an amendment to the 21-inch rule in these six national forests, the agency is likely to apply similar arguments and findings to other critical forest areas in the future, thus establishing a precedent for future actions. Further, Friends of Fiery Gizzard v. Farmers Home Administration held that “where such adverse effects can be predicted, and the agency is in the position of having to balance the adverse effects against the projected benefits, the matter must, under NEPA, be decided in light of an environmental impact statement." The Forest Service has discussed its focus on balancing trade-offs during its science forum and in the Eastside Screens Amendment White Paper. “Balancing the adverse effects against the projected benefits” of amending a rule applying to 9 million acres is the core of the Forest Service’s analysis regarding an amendment to the 21-inch rule, and its decision is likely to set a precedent.
An amendment to the 21-inch rule will also have cumulative effects on the environment. A cumulative effect “is the 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. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time.” Because the proposed amendment will apply to over 9 million acres of ecologically diverse lands, the “greater magnitude of the environmental effects” demonstrates itself that there will be a significant environmental impact. An amendment to the 21-inch rule will allow for the continued logging of trees meeting certain criteria and will over time, cause destruction of the habitat that many species rely on. An amendment to the 21-inch rule will be comprehensive and at least “raise substantial questions that they will result in significant environmental impacts.” Thus, cumulative impacts should be addressed in an EIS.
Additionally, high levels of public opposition will result in a higher likelihood the Forest Service will move to an EIS where formal scoping will occur. An EIS will be more detailed regarding possible alternatives to the proposal. The EIS will discuss “all existing and reasonably foreseeable future development within the project area.” Substantive comments raised explaining that the forest service should conduct an EIA, and why one is warranted as explained above, may be persuasive to the Forest Service, or at the least, be persuasive in court.
NFMA Regulations and the Forest Planning Rule
It is also important for the public to engage to make sure the Forest Service is aware of how the current rule, the proposal, and other alternatives fit under NFMA regulations. These regulations require the use of standards and guidelines in every forest plan. Further, NFMA regulations require that an agency “shall use the best available scientific information to inform the planning process.” Additionally, these regulations require every forest plan to “provide for social, economic, and ecological sustainability” and that standards or guidelines be used “to maintain or restore the ecological integrity of terrestrial and aquatic ecosystems and watersheds in the plan area.” And, importantly, plan components “must ensure the protection of various resources and values in the context of timber harvesting and the management of recommended wilderness areas.”
For example, public comments illustrating the devastating effects that cutting down large trees can have on the environment may help to show that proposed plan components would not “ensure the protection of various resources and values .” Likewise, public comments can illustrate how the present rule complies with NFMA regulations and how amending the rule would not comply or would likely not comply with NFMA regulations, or how the agency did not use the best available science during its EA. At minimum, best available science is science that is available, accurate, reliable, and relevant. Additionally, the Forest Planning Rule allows for citizens to stay involved throughout the plan amendment process, not just the NEPA process. For more information visit https://www.fs.usda.gov/detail/r6/landmanagement/planning/?cid=FSEPRD710229 to view the science forum conducted on May 11 and other workshops conducted by the Forest Service.
Transparency Between Agency and Public
The Forest Service has not explained specific amendments to the “21-inch” rule that they are considering. At this point the public is forced to play a guessing game when trying to remain involved in this process. The forest service has simply explained that they are considering an amendment to the “21-inch rule.” This is not the most transparent method of agency interaction with the public. Thus, the public may have a harder time gathering science and other information to make effective comments during the upcoming 30-day comment period. Is the Forest Service proposing that specific large trees may be harvested with the proposed amendment? Is the agency proposing an amendment that would allow for all large and old trees to be logged at the agencies discretion? Allowing for narrow exceptions to the 21” rule would have very different physical, biological, and social effects than allowing for all large and/or, older trees for example. There has been much logging industry attention on grand-fir trees in Oregon. These trees grow at a quick rate. The logging industry believes these trees are “taking resources from more desirable trees.” However, grand firs, as big trees, are important to species such as black bears and woodpeckers. The desire to log grand firs could be the end goal of the Forest Service. Or, it may not be, but it is worth keeping that in mind as well as other possible, specific Forest Service amendments that are being considered that are not expressly stated by the Forest Service.
Accelerating NEPA During Covid-19
If ever there was a time to rush through a NEPA process, it sure isn’t now. With a Pandemic sweeping through the United States, many people’s minds are focused on how to stay safe, how to return to work, and how to do their part in protecting others with underlying health conditions. Expediting the NEPA process does not help anyone but the Forest Service in this situation. Public comments and overall contributions by the public during the NEPA process is critical, and this was not the correct time to move forward with such a proposal and in an expedited fashion. It is clear that the ability for the public to contribute is severely disadvantaged, and expediting the NEPA process only serves to disadvantage the public further. GHCC, along with 26 other organizations, have sent letters to the Forest Service requesting that this process be put on hold. This important public process should not be rushed, especially now, while we are all adjusting to living with a Pandemic. We have received no response to our request.
Where do we go from Here?
Despite the disadvantages to the public of a concurrent scoping/ EA NEPA process, the disadvantages to the public of such a process occurring during a global pandemic, and the Forest Service’s current lack of transparency as to the actual scope of the EA, it is important that the public engages as much as possible. Because the actual scope of the EA regarding a specific amendment is not available, we have to wait and see what is proposed by the agency. And, when they release their plan, be prepared to act. We only have 30 days. And, because this process is occurring during a global pandemic, the public must spread the word so that those who can and want to engage will.
Moving forward, we will let you know once the 30-day comment period has started and will share our analysis of the various alternatives the agency comes up with. We hope everyone reading this will submit comments on the proposed plan amendment so the Forest Service can take them into consideration. Heavy opposition from the public regarding this proposal can lead to an agency decision that an Environmental Impact Statement is needed. Not only can your comments push the agency to do more through study of the effects of the proposed plan amendment by analyzing it in an EIS, if comments on the draft EA are not submitted, the public loses its right to object to the decision or challenge it in court. Additionally, it is in the public’s best interest that the Forest Service uses accurate information during its EA. It is especially important that the public provide viable alternatives that the Forest Service did not consider. Additionally, the Forest Service likely will not realize all of the possible impacts of the “21-inch” proposal without public comment. Now is the time for the public to make sure that the agency does. Public comments are important, especially now, as the Forest Service may not have as strong an understanding on the alternatives and impacts of the proposal as it would with a more formal scoping and commenting process.
Further, the public should focus on making substantive comments. Substantive comments are comments that “provide new and relevant information with sufficient detail and rationale.” Comments must be within the scope of the proposal, be specific to the proposal, have a direct relationship to the proposal, and include supporting reasons for the responsible official to consider to be considered substantive. Examples of substantive comments include providing new information, identifying or expanding upon an issue, providing the rationale for an opinion, identifying a flaw in the analysis, and identifying credible research that if used in the analysis, could result in different effects.
The public has a chance to engage in a very important decision that the Forest Service is making regarding an amendment to the Eastside Screen’s 21-inch rule. By coming together, the public can offer comments and engage in a way that encourages the Forest Service to take everything into consideration. The public comment process is extremely important; those who wish to make a difference should utilize this process to protect the environment and the wildlife that inhabits it.
“Learn character from trees, values from roots, and change from leaves.”
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