The UnitedStates Forest Service has proposed a change to the regulations on howit administers the National Environmental Policy Act(NEPA).  It proposes changing the regulations in such a way that it reduces the number of decisions subject to a full NEPA analysisand reduces the opportunities for citizen participation.

The National Environmental Policy Act was the first of the major environmental laws.  Its purpose was, as President Nixon said when signing the bill, to see that “America pays its debt to the past by reclaiming the purity of its air, its waters, and our living environment.”

The Act does this by preventing the United States government from inflicting environmental harm out of ignorance.  It doesn’t directly mandate that the government do no harm.  Instead, it requires that the government consider the environmental consequences before taking any major action.  Over the years, the courts have developed a requirement that the government take a “hard look” at the consequences of its actions.

The proposed rules reduce thenumber ofactions that will receive this hard look.  They make NEPA compliance less onerous for the Forest Service.  In doing so, however, the rules make it more likely that the environmental consequences of its actions will be overlookedand not considered.

Of course, the federal government makes millions of decisions every day, most of them trivial.  The National Environmental Policy Act’s requirement to prepare an Environmental Impact Statement (EIS)is limited to major federal actions.  If something is a major federal actionwith a significant impact on the environment, an Environmental Impact Statementis required.  Before there may be any decision, the agency must study the environmental impact.  If the agency is not certain whether the impacts would be significant, it must prepare a somewhat less rigorous analysis called an Environmental Assessment (EA).  Oneway to reduce the amount of time and effort expended on NEPA complianceis to exclude categories of actions and decisions from the requirement to prepare an Environmental Impact Statement or Environmental Assessment.  That is what the Forest Service has proposed.

The other way to make NEPA less onerous to the agencyis to cut out public participation.  In a typical Environmental Impact Statementor Environmental Assessment,process, a government agency announces a proposed action and that it is considering its environmental impact. The public can suggest things to study, point out questions the agency has not thought of, and give the agency another perspective.  If things are working as they should, the result is that there will be a better understanding of the consequences of the proposed action.  The public can also formally object to the decisions that the Forest Service reaches through the EIS or EA process.  In the proposed rules, the Forest Service is proposing to limit public participationbyexcluding more actions from the requirement to prepare an EIS or EA, thereby eliminating the opportunity to comment on draft projects and object to decisions.

The Forest Service wants to expand the number of projects that would qualify for “categorical exclusions” — projects that can bypass environmental analysis or environmental impact statements. The exclusions would apply to forest thinning, various types of road and trail building, brush removal and recreational site management. More controversially, forest projects of up to 7,300 acres (with logging on up to more than half of those acres) could be excluded from NEPA review. Mineral and energy exploration — such as using seismic testing to gather geological data and various small-scale infrastructure building — could also be exempt if it lasts less than one year.

According to analysis performed by the Southern Environmental Law Center, the Forest Service proposalwould cut the public out of decisions about:

• Commercially logging up to 4,200 acres (6.6 square miles) at a time;
• Building up to 5 new miles of roads at a time;
• Adding illegally created roads and trails to the official roads and trails systems;
• Closing roads used by the public to access hunting areas, streams for fishing, and trails;
• Bulldozing new pipeline or utility rights of way up to 20 acres

The proposal is especially problematic for Forests in the Eastern United States. Forests in the West are usually bigger than the ones in the East; the projects tend to be larger. A categorical exclusion of projects based upon size would be tend to exclude more projects in Eastern Forests than it would in the West.  Most timber projects in the East would fit within the 4,200 acre exclusion, potentially cutting the public out of essentially all decisions related to timber harvest.

The Forest Service is accepting public comments on this proposed rule until August 12, 2019.  Comments can submitted by emailing comments directly to nepa-procedures-revision@fs.fed.us.

Note:  Some of the information for this story came from the High Country News and the Southern Environmental Law Center.