Shortly after his inauguration on January 20, 2021, President Joseph Biden signed his Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis (Executive Order 13990). A week later, President Biden signed a second Executive Order on Tackling the Climate Crisis at Home and Abroad, which was accompanied by a Memorandum for the Heads of Executive Departments and Agencies titled Restoring Trust in Government Through Scientific Integrity and Evidence-Based Policymaking. Taken together, these executive actions are generally seen as the Biden administration’s blueprint for climate and biodiversity action. While the emphasis on science-based decision-making to address the climate and biodiversity crises is a welcome departure from the prior administration for many, it also comes without specific direction to the U.S. Forest Service within the Department of Agriculture, which manages 193 million acres of national forests, grasslands, and prairies of cherished American public lands.
Bold action to address a changing climate and the accelerating extinction of terrestrial and aquatic species is necessary, but such action will also compete with the Forest Service’s existing program of work, including wildfire risk reduction, recreational infrastructure maintenance, and forest plan revision among many other demands. There are unlimited actions the Forest Service could undertake consistent with President Biden’s executive actions, and how the agency will ultimately move forward is unknown given constraints on agency fiscal and human capacity. However, if the Forest Service desires to truly embrace the opportunity before it and best deliver mission critical work to the public for the next century, a shift in agency culture and approach is essential.
The Forest Service’s Statutory and Regulatory Framework
The Forest Service’s mission is driven by two primary laws, the Multiple-Use Sustained-Yield Act of 1960 (MUSYA) and the National Forest Management Act of 1976 (NFMA). MUSYA sets forth the familiar “multiple use” mandate for the national forests, defining the phrase with lofty language that “breathe discretion at every pore” and makes national forest management essentially impossible to get wrong. Strickland v. Morton, 519 F.2d 467, 469 (9th Cir. 1975); 16 U.S.C. § 531.
NFMA adds some meat to the bones left by MUSYA, acknowledging that “the management of the Nation’s renewable resources is highly complex and the uses, demand for, and supply of the various resources are subject to change over time,” and that given this complexity, the Forest Service “has both a responsibility and an opportunity to be a leader in assuring that the Nation maintains a natural resource conservation posture that will meet the requirements of our people in perpetuity.” 16 U.S.C. §§ 1600(1), (6). To achieve this objective, and relevant to the Biden administration’s agenda, NFMA directs the Forest Service to develop a Renewable Resources Program and recommendations to “recognize the fundamental need to protect and, where appropriate, improve the quality of soil, water, and air resources” and “account for the effects of global climate change on forest and rangeland conditions, including potential effects on the geographic ranges of species, and on forest and rangeland products.” Id. at §§ 1602(5)(C), (F). NFMA also requires the Forest Service to conduct a national forest resource inventory that “shall be kept current so as to reflect changes in conditions and identify new and emerging resources and values.” 16 U.S.C. § 1603.
To implement these and other provisions of NFMA, the Forest Service promulgated revised forest planning regulations in 2012. These regulations require the agency to use the best available scientific information to develop land and resource management plans (forest plans) that are focused on the provision of “social, economic, and ecological sustainability” to society. 36 C.F.R. § 219.8. The planning regulations ensure that forest plans, which must be revised at least every 15 years, 16 U.S.C. § 1604(f)(5), will
. . . guide management of [National Forest System] lands so that they are ecologically sustainable and contribute to social and economic sustainability; consist of ecosystems and watersheds with ecological integrity and diverse plant and animal communities; and have the capacity to provide people and communities with ecosystem services and multiple uses that provide a range of social, economic, and ecological benefits for the present and into the future. These benefits include clean air and water; habitat for fish, wildlife, and plant communities; and opportunities for recreational, spiritual, educational, and cultural benefits.
36 C.F.R. § 219.1(c). In turn, the regulations define “ecological integrity” as “the quality or condition of an ecosystem when its dominant ecological characteristics (for example, composition, structure, function, connectivity, and species composition and diversity) occur within the natural range of variation and can withstand and recover from most perturbations imposed by natural environmental dynamics or human influence.” 36 C.F.R. § 219.19.
The planning regulations expressly do not apply to on-the-ground projects that implement forest plans. 36 C.F.R. § 219.2(c). Given the Forest Service’s substantial backlog of forest plans in need of revision, ensuring achievement of the ecological integrity mandate inherent in MUSYA and NFMA, and explicit in the 2012 planning rule, requires particular attention and specific action.
Ecological Integrity Interpretive Rule
The Biden administration’s emphasis on climate and biodiversity action provides the Forest Service with an excellent opportunity to operationalize ecological integrity across the National Forest System. Based on a review of the agency’s statutory and regulatory framework, the Forest Service should promulgate an interpretive rule pursuant to the Administrative Procedure Act that outlines the Forest Service’s obligation to ensure that every action it takes––from project planning to forest planning––advances its legal obligation to ensure ecological integrity on national forests, grasslands, and prairies. Interpretive rules are defined as “rules or statements issued by an agency to advise the public of the agency’s construction of the statutes and rules which it administers,” and are exempt from formal rulemaking procedures such as notice and comment, 5 U.S.C. § 553(b)(A), although agencies are encouraged to publish interpretive rules for public inspection. Interpretive rules are not “binding” on the public, but instead announce an agency’s interpretation of its own legal obligations in executing its statutory mission. Chrysler Corp. v. Brown, 441 U.S. 281, 302 n.31 (1979).
An ecological integrity interpretative rule would signal that the Forest Service is taking seriously the charge of the Biden administration that “the Federal Government must be guided by the best science and be protected by processes that ensure the integrity of Federal decisionmaking” in order to “promote and protect our public health and the environment[,] and conserve our national treasures and monuments, places that secure our national memory.” Exec. Order No. 13990. Given that it is “the policy of [the Biden] Administration to listen to the science; to improve public health and protect our environment; to ensure access to clean air and water; . . . to reduce greenhouse gas emissions; [and] to bolster resilience to the impacts of climate change,” promulgation of an interpretive rule cementing the role of ecological integrity in Forest Service decision-making is warranted. Id.
Subsequent agency decisions––whether reducing hazardous fuels to reduce wildfire risk in light of a warming planet, restoring habitat so as to assist in wildlife migration, or designing recreation sites given changing wintertime precipitation––would only be taken if they contribute to the restoration or maintenance of ecological integrity. Ensuring that the national forestlands provide for ecological integrity at every level also ensures that socioeconomic sustainability is achieved, as Congress intended.
Critics have often observed that because multiple use “breathes discretion at every pore,” it is bound to fail and disappoint. Others have pointed out that declining public trust in the Forest Service hinders not only science-based land management, but also the delivery of goods and services to society. The Biden administration’s emphasis on robust federal action to address the climate and biodiversity crises presents the agency with the opportunity to address both criticisms by promulgating an interpretive rule that sets forth an ecological integrity vision for the national forests. This unifying approach to federal land management is long overdue.