Thursday, December 6, 2007
Court Rejects Plan to Ease Pollution Law to Fight Wildfires
By STEVEN M. ELLIS, Staff Writer
The U.S. Forest Service violated federal environmental law when it developed a plan to facilitate removal of potential fuel sources for catastrophic wildfires by easing federal environmental restrictions without actually considering the significance of the action, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
Reversing the decision of U.S. District Judge Garland E. Burrell of the Eastern District of California, the panel agreed unanimously with the Sierra Club and the Sierra Nevada Forest Protection Campaign that the government failed to properly assess the significance of a policy excluding large-scale burn-offs and other removals of potential fuel sources on federal land from requirements in the National Environmental Policy Act.
The government adopted the policy without making a “reasoned” decision based on relevant factors and information, the court said.
The plan categorically excluded all fuel reduction projects up to 1,000 acres, and prescribed burn projects up to 4,500 acres, on all national forests in the United States from requirements that federal agencies prepare a detailed environmental impact statement or, alternatively, a “finding of no significant impact” accompanied by a statement explaining why a project’s impacts are insignificant.
The Forest Service developed the plan in response to President Bush’s 2002 Healthy Forests Initiative which was prompted by the 2000 fire season, one of the worst in 50 years, in which 123,000 fires burned more than 8.4 million acres.
The Sierra Club and the Sierra Nevada Forest Protection Campaign challenged the exclusion in 2003 and sought a nationwide injunction enjoining its use, alleging that the exclusion inappropriately included activities that had significant environmental effects, was unsupported by underlying facts, did not adequately identify the activities it covered, and was not supported by a determination by the Forest Services that no “extraordinary circumstances” rendered the exclusion inappropriate.
On appeal of a grant of summary judgment to the Forest Service by the district court, Senior Judge David R. Thompson agreed with the government that NEPA does not require the Forest Service to prepare an EIS or, alternatively, a finding of no significant impact in order to promulgate a new categorical exclusion to the act.
But he wrote that the Forest Service’s promulgation of the categorical exclusion was arbitrary and capricious because it had failed to demonstrate that it made a “reasoned decision” based on all relevant factors and information.
Thompson said the Forest Service’s decision had been based on an inadequate record because it waited to request data on the policy’s effects until after it had already decided to adopt the policy, and then used the data later-acquired as a post-hoc rationale for a predetermined decision.
The service, he added, failed to assess the exclusion’s significance by analyzing its cumulative impact or the extent to which controversy and uncertain risks surrounded the fuel reduction projects’ impact on the environment, and to define the exclusion with enough specificity to ensure that any projects excluded from federal requirements actually reduced hazardous fuels without inflicting a significant environmental impact.
Writing that a balance of equities and public interest favored an injunction against the exclusion because allowing potentially environmentally damaging program to proceed without an adequate record of decision ran contrary to mandate of the act, Thompson said the policy should be enjoined, but only as to projects the service had approved after the lawsuit was initiated.
Thompson was joined in his opinion by Judge Sidney R. Thomas.
Judge Andrew J. Kleinfeld also concurred, but wrote separately:
“I cannot bring myself to believe that a Forest Service decision to cut brush and use controlled burns to reduce forest fire danger near urban areas is arbitrary and capricious.”
Kleinfeld said the exclusion’s application to less than one half of one percent of federal land left him in disbelief that it would “have a cumulative impact on our environment requiring years more research, analysis and report writing before we do anything to protect people from forest fires.”
However, he wrote that he was “compelled to concur” because the government, “made no serious attempt to show us why the categorical exclusion was not arbitrary and capricious or that it gave the required ‘hard look’ at the categorical exclusion before promulgating it.”
Eric Huber, a Sierra Club staff attorney from Boulder, Colo. told the MetNews:
“We’re very glad the Court of Appeals decided to stop the Bush administration’s attempt to waive environmental laws for up to 1 million acres of logging.”
He said that the Sierra Club supported “legitimate” fuel reductions projects near communities, but said that allowing reduction on up to 1,000 acres per year “in the back country” was an merely an attempt by the government to waive environmental laws.
A spokesperson for the U.S. attorney for the Eastern District said that while the office was disappointed with the result, it was still reviewing the decision and a decision on how to proceed had not yet been reached.
The case is Sierra Club v. Bosworth, No. 05-16989.
Copyright 2007, Metropolitan News Company