NEPA Talking Points

By Southern Environmental Law Center staff

Basic information about the proposal:

The Forest Service is proposing to eliminate public participation and science-based analysis for nearly every decision affecting national forests, from timber sales to road construction to pipeline rights of way.

The Forest Service is required by law to take public comments on this proposal, but if we don’t speak up now, it could be our last chance. If the proposal moves forward, the public won’t receive notice or a chance to object to specific projects in the future. Comments are due August 12.

Public participation is essential for good decisions affecting public lands. When the Forest Service considers allowing logging, road-building, mining, or fracking on our national forests, it must balance those uses with impacts to wildlife, clean water, backcountry areas, recreation on rivers and trails, and other social and economic impacts. That balancing act is impossible without listening to the people who would be affected by its decisions.

Among other things, this proposal would cut the public out of:

  • 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 (e.g., 4 miles at 40’ across)

The logging loophole created by this proposal is so big that every single timber sale in the Southern Appalachians would fit through it—meaning no more public input or science-based analysis. To give a sense of scale, 4,200 acres of harvest would cover, in a single decision:

  • 5 years’ worth of commercial logging at current levels on the Nantahala-Pisgah National Forest;
  • Almost 3 years’ worth of commercial logging at current levels on the Chattahoochee National Forest;
  • Over 2 years’ worth of commercial logging on the George Washington National Forest, even at maximum production levels;

Not only would these decisions be made without public input; they would also be made without environmental review and without considering whether there are less harmful ways to meet the same needs.

Digging deeper: What the Forest Service is Arguing

The Forest Service says they need these changes to cut red tape on routine work like re-paving parking lots.

  • That’s not true. The Forest Service already has those kinds of authorities (including re-paving). Most routine Forest Service decisions (about 80% of all decisions) are already approved without additional analysis. The remaining decisions are potentially the most harmful and most controversial. These are the decisions at issue in the proposal, and they’re the decisions that need public input and analysis the most.
  • Under the proposal, between 93% and 94% of all Forest Service projects will have no public input whatsoever. (See further explanation below.)

The Forest Service also claims they need these loopholes so that they can do more good work faster.

  • That’s not true either. The Forest Service already has the authority to do collaborative, broadly supported work without additional documentation or analysis, including logging to remove hazardous fuels or to improve forest health. Despite having the authority to do those kinds of projects, the Forest Service often proposes bad ideas—like logging old growth, rare habitats, and steep, erosive slopes. This proposal would allow them to do the controversial, unneeded work without being held accountable by the public.

The Forest Service argues that it needs to cut red tape because it takes, on average, 687 days to make a decision that requires public input and analysis.

  • This only tells half the story. Of those 687 days, only 30 to 75 days are required for public comment and objection. These projects take a long time because the Forest Service lacks the budgetary and staffing resources to go any faster.
  • Furthermore, the Forest Service isn’t doing just one project at a time. They’re making almost 2,000 decisions per year, only 370 of which require any additional analysis or public comment.

Some of this proposal’s supporters in the timber industry claim that the Forest Service has to gut NEPA because it’s being abused by anti-logging environmentalists looking for a way to sue.

  • Just 2 percent of USFS decisions are challenged. Less than 1% in Region 8.

The Forest Service also claims that its projects will be harmless because they will be consistent with broad forest management plans.

  • The agency often proposes work that violates its management plans; these problems get fixed only because of public participation and environmental review.
  • Forest plans don’t prevent harmful impacts. They defer hard questions about whether to allow harmful actions, saving them until there’s a concrete project proposal to consider. Now those questions will never get asked.

Further explanation – 93.3% of projects will lose all public participation requirements:

Currently, the Forest Service uses environmental assessments (EAs) to approve 277 projects per year on average. [84 Fed. Reg. 27,544, 27,550 (Jun 13, 2019)]. EAs are intended to be short and focused, but they do require a science-based analysis and consideration of alternatives, subject to public comment and the right to file an informal objection.

If the proposed rule is finalized, the Forest Service estimates that up to 210 of its EAs will be “categorially excluded” from analysis and public participation. In other words, about ¾ of projects currently approved using EAs would in the future be exempt from any public participation requirements. This estimate is consistent with the Forest Service’s justification of its new “restoration” CE, which would allow up to 4,200 acres of commercial timber harvest under a single CE decision. Of the 68 projects relied on to support the 4,200-acre limitation, 50 of them (73.5%) had less than 4,200 acres of commercial harvest.

Categorical exclusions (CEs) have in the past required public notice through the “scoping” process and an opportunity for public comment. Under the proposed rule, however, CEs would no longer require advance public notice and opportunity to comment. CEs will continue to be listed on the “schedule of proposed actions,” but that list is often inaccurate, updated infrequently, and is not required to be updated before a project decision is finalized.

The Forest Service’s data, provided in response to a FOIA request, show that between 2006 and 2016 the agency completed almost 30,000 project decisions. 80.1% of all decisions were approved using CEs. Decisions approved under EAs accounted for 17.6% of the total. While the number of decisions approved under EAs is much lower, the acreage and extent included in each of these projects is typically larger. The remainder of projects (2.3%) was approved using environmental impact statements (EISs), which are reserved for the largest projects with the greatest potential for harm.

In summary, the Forest Service proposal would affect public participation as follows:

  • 93.3% of all Forest Service decisions will lose all the advance notice and public comment requirements they currently provide for.
    • 80.1% of all Forest Service decisions, which are currently approved under CEs, will lose advance “scoping” and opportunity for comment. This is an important change because public comment is often critical in showing the Forest Service why a proposal would implicate “extraordinary circumstances” requiring additional analysis or mitigation.
    • 13.2% of all Forest Service decisions, which are currently approved under EAs, will now be approved under CEs. These projects will lose notice, opportunity to comment, and the opportunity to file an informal objection. This is an even more important change, because public participation has been key to improving these potentially harmful projects between proposal and decision.
  • Only 6.7% of all Forest Service decisions will require any public comment whatsoever.
    • 4.4% of all Forest Service decisions, which are currently approved under EAs, will continue to be approved under EAs. The public will no longer be entitled to advance “scoping” for these projects, but they will provide at least 30 days for comment and an opportunity to object.
    • 2.3% of all Forest Service decisions, which are currently approved under EISs, will continue to be approved under EISs.

These figures are national averages, and the rulemaking’s effects will vary between Forests and Regions. For example, these changes will affect Region 8 more than other Regions, because Region 8 approves the most total decisions but the fewest EISs.