Since the adoption of the National Forest Management Act (NFMA) in 1976, the U.S. Forest Service (USFS) has struggled to adopt and maintain up-to-date forest plans to govern land and resource management. As climate change and greater wildfire activity pose steadily increasing threats to resources and communities across the country, the USFS is under increasing pressure to develop new management strategies and adapt to changing conditions. While the existing statutory framework calls for public and private participation to help guide the planning process, conflicting interests have understandably produced dramatically different resource management demands and the process consistently stalls. The emergence of adaptive management and collaborative processes in forest planning have provided powerful tools for responding to this tension on the one hand, while revealing the complexity of satisfying multiple divergent stakeholders on the other. Despite the difficulties of synthesizing competing stakeholder needs, the renewed sense of urgency brought by extreme climatic events and resource concerns has the potential to elevate collaborative adaptive management to smooth political divisions and meet the challenge.
Adaptive resource management typically calls for utilizing and experimenting with new ways to achieve economic and ecological goals that respond and adapt to changing conditions. By designating areas for adaptive management, the USFS can evaluate the effects of novel approaches to localized resource needs and develop a scientific basis that informs more broad scale decisions. Collaborative management on the other hand calls for incorporating the experience and values of multiple different stakeholders and managers with science in the decision process. While on the surface this sounds suspiciously susceptible to the same pitfalls as existing public participation provisions that govern USFS administrative decisions, the role played by agency deference could be substantially changed in a way that benefits competing interests. Through implementing a collaborative mandate, the USFS would be afforded the opportunity to build legitimacy by granting greater weight to stakeholder interests and opening the door to a more scientifically informed decision process.
Historically, the USFS has faced criticism from parties on all sides who feel that their voices have not been considered in the decision-making process. Adequately responding to and providing for all the various interests has proven to be a complex socio-political endeavor, and despite general agreement that change is needed is still a focal point for administrative debate. This tension is reflected by increasing demands for greater inclusion of science in agency decisions on the one hand, amidst wildly divergent views on the implications of that information on the other. Policy makers inevitably face the fundamental problem of building an information base “big enough to surround the problem, but small enough to tailor the solution.” Critics have argued that the collaborative process is time-consuming, expensive, and vulnerable to power imbalances among contributors. Involving too many stakeholders can lead to more conflicts, drawn-out public hearings, and legal challenges that hinder agency efficiency. Compounding these issues, the last 20 years have seen a dramatic decline in agency capacity, especially in the realm of forest research funding and forestry scientists.
The number of USFS researchers declined almost 20 percent from 2002 to 2016, which in the face of greater climatic threats and reduced ecosystem resilience poses serious problems to the prospects for innovative solutions. During the same time period, the administration and USFS have struggled to effectively implement revised forest planning rules as legal challenges from both sides claim deficiencies in statutory compliance and forest resource allocation. This is reflected by the widespread use of antiquated forest plans that in many cases are over 20 years old. Part of the problem is that the statutory mandates provided by national legislation such as NFMA and the Multiple-Use Sustained Yield Act are necessarily broad in order to allow for agency flexibility in responding to radically diverse ecological systems and stakeholder needs. This results in a framework for management built on ambiguous guidance that allows for discretionary decision-making, an issue compounded by judicial deference favoring agency expertise over other inputs.
Moreover, goal ambiguity tends to drive agencies “to focus on measurable accomplishments,” when faced with “multiple, competing objectives.” Instead of providing for informed administrative policies, such a deferential approach has lent itself to inconsistent administrative direction that responds more to changes in political power than to scientific developments. As each incoming administration seeks to impose its agenda, national forest management guidance is regularly reshaped and the role of science in decision-making redefined. Not only is this problematic for resource users, stakeholders, and forest ecosystems, but it has degenerative effects on the legitimacy of the USFS and the administration’s ability to adequately protect community interests.
As the supply of forest system resources grows increasingly fragile, the utility of a more robust and inclusive scientific approach is more apparent than ever. To reframe the debates that plague forest policy reform, collaborative and adaptive management programs should be the cornerstone of national forest management going forward. By shifting the focus of stakeholder inclusion from the current divided and distributed decision-making process, where interests are pitted against each other and power dynamics win the day, to a “shared governance” model “in which joint decision-making occurs among multiple governing units,” the USFS can offload the negotiation to more regional groups that are incentivized to work together. Moreover, by facilitating a regional model of collaborative governance that gives greater autonomy to local communities that are often both invested and concerned with the impacts of local resource management, the lack of capacity issue may over time be alleviated. This can build trust between communities and the USFS and in turn drive more informed decisions responsive to regional needs.
While on its face the call for collaborative management with more regional involvement itself oversimplifies the complex issue of national forest management by conflating a new name for public disclosure and input with a wholly revolutionary process, there are tangible opportunities for solutions. In recent years, climate change and the related increase in devastating wildfires have reinforced the reality of ecosystem fragility and the need for aggressive changes to land and resource management tactics. Beneath the tragic fallout from nationwide fires, climate instability, habitat degradation, and resource scarcity there lies opportunity. Current and future administrations, along with the Forest Service, should take advantage of the increased public and private focus on national land and resource management and place power in collaborative management systems. By diffusing decision-making authority to local community groups within regional bodies that incentivize stakeholders to compromise and collaborate, the USFS can counter both the problems of lack of capacity and legitimacy that threaten productive agency reform.
The environmental and climate crises present opportunities to bridge partisan differences and encourage traditionally opposed interests to take steps toward alleviating common threats. There is now widespread agreement that current fire management practices “are leading to undesirable outcomes and are unsustainable in the long run.” Forest managers need specialized scientific information to make informed decisions, and should work with all interested parties to build a more robust information network to protect resources and eliminate uncertainty. Regardless of whether the debate includes private, political, personal, or environmental stakeholders, a collaborative scientific information system serves to their benefit. While programmatic administrative change that satisfies competing resource goals without favoring disparate power dynamics has thus far been elusive, the threat of climate change and wildfire provide a unique chance to unite conflicting interests. By empowering community and regional decision-makers and encouraging local academics to contribute to a dynamic scientific foundation, the challenges facing policy and plan revision can begin to move toward a shared narrative with less partisan division.
It also rests on a revised determination that MATS regulation of coal and oil-fired HAP emissions from EGUs is not "appropriate and necessary" consistent with section 7412(n)(1)(a) of the CAA because the costs of regulation grossly outweigh HAP reduction benefits. Armed with a new cost consideration formula referred to as the direct cost-benefit analysis, EPA reconsidered both prongs of section 7412(n)(1)(a). The Court's opinion in Michigan states, "[n]o regulation is "appropriate" if it does more harm than good." Under a direct cost-benefit analysis, the imbalance between HAP reduction benefits and the cost of compliance does more harm than good. According to EPA, a direct cost-benefit analysis demonstrates MATS compliance costs $7.4 to $9.6 billion annually while HAP reduction benefits amount to $4 to $6 million annually. These numbers have been challenged by environmentalists who claim that "unquantified benefits" including reduced health care costs, cleaner air, and cleaner water would alter these numbers significantly.
EPA also found that the regulation failed the necessary prong because the HAP benefits gained are not requisite to public health, contradicting earlier EPA findings. According to EPA, HAP reduction necessary to protect the public health is already protected by particulate matter NAAQS and thereby regulation is not only not necessary, but superfluous. As mentioned in the discussion on Whitman and EME Homer City Generation, section 109(b)(1) is designed to only consider what is requisite to protect public health. EPA believes that what is necessary is more suitably governed by particulate matter NAAQS. If regulation of coal and oil-fired EGUs must be regulated to protect the public health from HAP emissions, then it should be implemented consistent with, and pursuant to, the NAAQS program.
For these reasons, EPA has concluded it must remove coal and oil-fired EGU emissions from MATS. The introduction of cost as a "centrally relevant factor" represents EPA's intent to place more significant emphasis on the cost of environmental compliance. Before Michigan, EPA considered cost a factor only when the statute expressly mandated cost consideration and typically inferred statutes without express language to preclude cost consideration. In the aftermath of Michigan, cost consideration is a more powerful, persuasive and broadly applied criterion in EPA determinations. While the Michigan case's importance on EPA policy has yet to envelop their entire regulatory structure, its revised action on MATS regulation may be indicative of future practice.
