On February 26, 2024, the Southern Environmental Law Center filed a complaint in the D.C. Circuit alleging the U.S. Forest Service’s practice of setting annual timber targets. The complaint argues that the Forest Service fails to properly study environmental and climate impacts of establishing targets and the logging projects that are designed to fulfill the targets. This case is the first to challenge the Forest Service’s nationwide program of establishing timber targets.
It will be interesting to see how the court addresses the question of whether plaintiffs have standing to challenge this program. Post-Lujan, courts have barred review of agency actions too broad in scope to constitute reviewable agency action under the Administrative Procedure Act (APA). Three separate doctrines have been used to preclude review of broad, programmatic actions: the need to identify reviewable “agency action” under section 702 of the APA, the requirement that the agency action be “final agency action” as defined by section 704 of the APA, and the necessity for the plaintiff to suffer some injury in fact under section 702 of the APA and Article III of the Constitution.
The practice of setting annual national, regional, and unit-specific timber targets could be viewed as a broad, programmatic agency activity precluded from review. Like the land withdrawal program in Lujan, which the court concluded to be an aspect of agency operations rather than reviewable agency action, the Forest Service’s practice of setting timber targets is not a direct order or regulation. The counts against the practice of setting timber targets in this complaint that are not grounded in one of the three projects seem to lack the type of discreteness needed to be an APA reviewable agency action.
Additionally, the court may wrestle with the “finality” of the Forest Service’s practice of setting timber targets. These targets can be, and often are, “adjusted” midyear to account for the fact forests cannot hit their target. In fiscal year 2021 (FY21), the Washington Office issued an across-the-board adjustment midyear that reduced the target from 4 billion feet to 3.4 billion feet. The dynamic nature of these decisions may raise concerns for the court of just how “final” they are and, therefore, whether they are available for judicial review. Whether plaintiffs have standing to challenge the timber targets outside the contexts of the site-specific projects, and whether the targets constitute final agency action within the meaning of the APA will be an interesting debate to watch the court review and discuss.
This complaint frames timber targets as something the Forest Service pulls out all stops to attain and thus, with the prospect of increasing timber targets, the Forest Service is on track to undertake extreme measures to reach their marks (Compl. ¶¶ 110–19). The reality is that the Forest Service’s timber targets are not necessarily “targets” in the traditional sense, and do not come in the form of only actual timber products, which belies plaintiffs’ framing.
As the complaint describes, the Forest Service Handbook requires Forest Service officers to meet “program targets, as assigned” and describes this directive as “mandatory, unless a justifiable reason exists for not taking action” (Compl. ¶¶ 110–11). However, going back to 2015, the nationwide timber “target” has never been met. Reflecting on the finality discussion above, the agency’s targets can, and often are, adjusted midyear when it becomes clear that forests are not going to be able to achieve the initial number or when the budget from Congress changes in final appropriations (Compl. ¶ 104, “The Department of Agriculture seeks appropriations from Congress to achieve the national timber target and sometimes revises the target based on final appropriations.”). This supports the idea that timber targets are not the type of binding or final actions reviewable under the APA.
In FY23, only 46 percent of Region 5’s “timber” outputs were actually in the form of timber products. The other 54 percent were non-sawtimber like firewood and biomass. Non-sawtimber is defined as trees that are not expected to be processed in to finished or graded lumber. This volume is taken as a byproduct of actions taken to meet forest-specific health conditions (like thinning of small trees and brush). In sum, not all timber outputs for timber target attainment are in the form of sawtimber (logs large enough to be sawed into products) and are often attained because of health management activities on the forests.
Further, if timber targets were to be subjected to National Environmental Policy Act (NEPA) analysis, delays in the announcement and establishment of these targets would inevitably take place. In that time, what would the alternative be? Timber targets are an important tool for the partners of the Forest Service. Wood product manufacturing facilities use timber targets set by the agency to estimate the amount of supply they can expect to be available to their facilities each year. This estimation is a critical tool for them to plan and allocate resources. Similarly, others who partner with the Forest Service, like loggers and contractors, use these projections to plan their annual operations. Even when these estimations are often unreliable, purchasers and operators use and need these numbers from the agency when organizing and developing their annual operating schedule and business plans.
Reading through the complaint, plaintiffs suggest that the need to meet these timber targets pushes the Forest Service to implement practices that give them the most “bang for the buck” like “clearcut-style logging of older, bigger trees” (Compl. 33, 131). Further in the complaint, plaintiffs shed light on what actions they were pointing to when talking about clearcutting: the regeneration harvest proscribed in the White Pine Management Project. Plaintiffs point to the exemption of the project from 36 C.F.R. § 219.11(d)(4), which limits forest openings to 40 contiguous acres. One critical piece of information about this project that is missing from the complaint's description is that the project area encompasses an evenly spaced eastern white pine-dominated plantation that also includes non-native loblolly pine plantations. These pines were planted decades ago in an area where they are not well adapted, and the management tool proposed for a large acreage of this project is designed to restore this area to a more natural state of mixed pines and hardwoods that would be more resilient to environmental stressors such as fire and insects.
In addition, the areas of harvest that exceed 40 acres (and thus required an exemption from 40 C.F.R. § 219.11(d)(4)) are areas where the existing plantation is larger than 40 acres. It would be ineffective to follow the 40-acre limit and only treat a section of this plantation, being that is identical across a larger landscape. Even in these harvest areas that were described as “clearcuts,” there will be reserve trees retained for wildlife food and a partial shading effect.
The fact that the White Pine Management Project is intended to support restoring a plantation of a singular, maladapted tree species with a mixed species stand is a forest management goal that is shared across interests. However, the framing of the complaint may leave a reader thinking the biggest reason for the Forest Service supporting and greenlighting this project was for timber volume to support their goal of reaching some defined “timber target.”
The complaint's call for greater consideration of climate and carbon impacts is laudable. The Forest Service responded to this objection by defending its climate-change analysis where it “consider[ed] the proposed action in the broader context of actions on the Sumter National Forest” (Compl. 201). Obviously, the analysis in an environmental assessment is often something less of an analysis and more akin to a “statement of recognition.” It will be interesting to see how both sides approach this question of carbon impact. There are arguments for carbon sequestration and carbon release from both sides, however the complaint does an impressive job of supporting its conclusions of carbon sequestration by using the Forest Service’s own data. If the court gets to the merits of this case, it will be intriguing to see how the government responds. The Forest Service has published a handful of publications outlining their approach to the relationship between timber harvest and carbon emissions as well as their carbon monitoring program.
Regardless of how far this complaint goes, the plaintiff’s challenge to the lack of carbon impact analysis in the Forest Service’s timber program may be a wake-up call for the agency’s lack of carbon impact analysis across the board. Outside of the timber program, this similar challenge could be made on the agency’s recreation program, their operations regarding road use, or the agency’s programs related to wildfire suppression. However, requiring this carbon analysis to be a byproduct of NEPA hinges on this court treating timber targets (and similar targets across the executive branch) as final agency actions subject to review. This treatment would be unprecedented, and the courts may be reluctant to hamstring this type of agency process. If the plaintiffs prevail over this steep reviewability hurdle, this suit could serve as the door for greater inclusion of climate concerns in the process of agency action.
The government filed a partial motion to dismiss on May 6, 2024. At a high level, the government argues that annual timber targets are one of many performance indicators used for the apportionment of congressional funding. They argue that these budgetary goals are not binding on the agency and subject to change, therefore not final agency actions subject to review or discrete agency actions that the Forest Service was required to take. Because the annual timber targets are not final agency actions, the government argues these actions are not “major federal actions” that require NEPA analysis.
