Four days after taking office, President Trump issued Executive Order 13,766, Expediting Environmental Reviews and Approvals for High Priority Infrastructure Projects, followed in August 2017 by Executive Order 13,807, Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects. Taken together, these two executive orders directed all federal agencies to develop new and utilize existing authorities to expedite the implementation of infrastructure and other federal projects, which the administration believed were delayed due to regulatory and environmental review processes, specifically those required by the National Environmental Policy Act (NEPA). Targeting NEPA as a scapegoat for all government “inefficiency” would become a frequent refrain during the Trump administration.
In response to the two executive orders, the U.S. Forest Service embarked on an “Environmental Analysis and Decision Making” (EADM) initiative. U.S. Forest Service, Improving Environmental Analysis and Decision Making, www.fs.usda.gov/managing-land/eadm (last visited Dec. 3, 2020). Through this process, the agency purported to examine its environmental analysis procedures and determined that while some efficiencies could be gained through regulatory changes, other nonregulatory challenges such as congressional underfunding for land management activities, personnel management issues such as the inability to fill vacancies and protracted employee transitions, and lack of adequate training for analysis professionals were the underlying root causes for most delays in the planning process.
Despite the conclusion that it was largely agency funding, staffing, training, and cultural issues that lead to delays in completing the NEPA process and implementing projects on national forests, the Forest Service nonetheless proposed to revise its agency-specific procedures implementing NEPA in June 2019. Proposed Rule, National Environmental Policy Act (NEPA) Compliance (84 Fed. Reg. 27,544, June 13, 2019). In its draft rule, the Forest Service proposed to dramatically overhaul its NEPA procedures, adopt dozens of new and revised categorical exclusions (CEs) for all categories of national forest management, utilize “determinations of NEPA adequacy” (DNA) frequently used by the Department of Interior, and embrace “condition-based management” across the National Forest System (NFS). Depending on one’s perspective, the Forest Service’s proposed rule represented either a fundamental attack on the magna carta of environmental laws calculated to increase commercial extraction from public lands, or a much-needed overhaul of antiquated procedures.
Although the Forest Service intended to finalize its NEPA rule in mid-2020, the agency was eventually lapped in the rulemaking race by the Council on Environmental Quality (CEQ), which itself initiated rulemaking in January 2020 to revise the NEPA procedures applicable to all federal agencies. Council on Environmental Quality, Notice of Proposed Rulemaking, Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act (85 Fed. Reg. 1684, Jan. 10, 2020). As CEQ moved quickly through and completed its rulemaking, it became clear that the Forest Service’s proposed procedures would be inconsistent with CEQ’s final rule. Council on Environmental Quality, Final Rule, Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act (85 Fed. Reg. 43,304, July 16, 2020).
Rather than attempt to conform its proposed NEPA procedures with the CEQ final rule, which would have raised “logical outgrowth” concerns, the Forest Service jettisoned most of its proposed changes to its agencywide procedures and instead finalized a much more narrow set of NEPA procedures. Forest Service, Final Rule, National Environmental Policy Act (NEPA) Compliance (85 Fed. Reg. 73,620, Nov. 19, 2020). Responding also to public comment, the Forest Service finalized a reduced number of CEs that were more limited in their scope and scale than the proposed CEs, and also finalized the DNA authority that was previously limited to Department of Interior agencies. Forest Service, Table Comparing Previous, Proposed, and Final Regulations, www.fs.fed.us/emc/nepa/documents/TableComparingChanges20201118.pdf (last visited Dec. 3, 2020).
The finalized categorical exclusions fall into three categories: special uses, road and infrastructure management, and land restoration. The final special use CEs allow for the issuance of a new special use permit to replace an existing or expired special use authorization when issuance is related only to administrative changes; issuance of a new or amended authorization for recreation special uses that occur on existing NFS roads, trails, or other infrastructure; and approval, modification, or continuation of a special use that requires less than 20 acres of national forestlands. 36 C.F.R. §§ 220.6(d)(11), (d)(12), (e)(3). To facilitate road management, the Forest Service authorized new CEs that allow for road management activities on up to eight miles of NFS roads; construction and realignment of up to two miles of NFS roads; and restoration, rehabilitation, or stabilization of NFS roads and trails. 36 C.F.R. §§ 220.6(e)(23), (e)(24), (e)(20). Two other CEs authorize the construction, reconstruction, decommissioning, relocation, or disposal of buildings, infrastructure, or improvements at existing administrative or recreation sites. 36 C.F.R. § 220.6(e)(21), (e)(22). Finally, the Forest Service created a new CE for the “restoration” of 2,800 acres of national forestland or grassland, which requires a collaborative process, does not include post-disturbance “salvage” logging, and allows limited permanent and temporary road construction. 36 C.F.R. § 220.6(e)(25).
The agency also finalized the determination of NEPA adequacy authority. 36 C.F.R. § 220.4(j). Notification of DNAs will be published in the agency’s Schedule of Proposed Actions, will be subject to public scoping and administrative review, and will require the issuance of a new decision document. The Forest Service intends for this tool to “operate as essentially a ‘internal adoption’ mechanism to be used when a new proposed action is substantially the same as an alternative analyzed in a prior Forest Service NEPA document.” 85 Fed. Reg. 73,623. Although it is unclear how this authority will be used in practice given that the Forest Service has no track record with it, the agency intends to continue to use supplemental information reports to assess whether new information and changed circumstances requires supplemental NEPA analysis.
The Forest Service finalized its NEPA rule in November 2020, but almost immediately publicly stated that it does not intend to use the final rule for land management decisions until it has had a chance to closely review the intersection between the final CEQ rule—which makes substantial changes to environmental analysis and public involvement requirements—and its own authorities. Forest Service, www.fs.fed.us/emc/nepa/nepa_procedures/index.shtml (“view the recorded webinar”) (last visited Dec. 13, 2020). Given the fact that the CEQ rule is the subject of five lawsuits, and that the Biden administration has stated that it will make defending NEPA a top priority, delaying implementation of the Forest Service’s rule is a wise political and strategic decision.
While the fate of the Forest Service’s final rule is unclear, the underlying causes of permitting and analysis delays remain. Until Congress adequately funds the Forest Service to accomplish mission-critical work such as fire risk reduction, large landscape restoration, and maintenance of recreational infrastructure, and until the Forest Service thus is able to hire, train, and reward sufficient and capable staff, the agency will fall short of its mission to care for the land and serve people.