How the Agency Uses Legal Loopholes to Avoid Analysis and Public Involvement
The other day when my son and I were at Fort Missoula looking at the line of mountains in the distance, he innocently asked why one didn’t have any trees on it. He was pointing to where old forest roads cut stark lines across much of the mountainside denuded by heavy-handed, industrial logging from decades ago. I struggled to respond. How do you tell an 8-year old about massive clearcuts, government mismanagement, and the general profiteering off of public lands? The logging scars serve as a stark reminder that we need strong legal protections to ensure forests are able to provide quality habitat for fish and wildlife and clean drinking water for nearby communities.
Yet under the Trump administration, the Forest Service has been exploiting legal loopholes to sidestep one of the country’s most important laws, the National Environmental Policy Act (NEPA). Signed into law on January 1, 1970 by President Nixon, NEPA requires government agencies to involve the public in meaningful ways, consider better alternatives, and disclose the environmental consequences of specific projects. Of course not everything needs such a robust process: painting picnic benches, mowing lawns, and repairing buildings all fit within a broad array of actions called Categorical Exclusions (CEs) that are exempt from most of NEPA’s requirements in order to expedite minor projects. However, starting in the early 2000s, President Bush’s so-called “Healthy Forest Restoration Initiative” began creating new categories to push through more logging and road building. Since then lawmakers have enacted additional CEs that allow harmful logging projects to circumvent NEPA’s safeguards.
At WildEarth Guardians we knew the situation was getting out of hand, but we didn’t know the full extent. Upon closer examination, we found that from January through March of this year, the Forest Service proposed to categorically exclude 51 projects across more than 3.7 million acres of public lands. That’s an area larger than the state of Connecticut. We detail our findings in a recently released report that shows the Forest Service overwhelmingly uses one particular categorical exclusion that lacks any size limits under the guise of improving wildlife habitat or “timber stands.” The agency used this particular CE to authorize large-scale commercial logging without adequately analyzing the impacts to the very wildlife habitat the agency is supposed to be protecting. Such actions completely undermine NEPA’s “look before you leap” approach that was enacted in response to decades of agency mismanagement and degradation of forests, watersheds, and wildlife habitat.
It appears the Forest Service is now using categorical exclusions as a blank check to authorize enormous logging projects in sensitive and pristine areas, including Roadless Areas and watersheds that supply drinking water to local communities, without involving the public and without fully disclosing the impacts to species and their habitats. While our report is only a three-month snapshot, it is extremely concerning and points to a likely trend within the Forest Service. In fact, Secretary of Agriculture, Sonny Perdue, has called on the Forest Service to treat National Forests as tree farms, and that is exactly what the agency is doing, with no regard to their importance for fish and wildlife, water quality, or recreation.
For years polluters, industry proponents and their congressional enablers have repeatedly complained that NEPA’s environmental review process is too slow and burdensome. But, according to a recently published study in the Journal of Forestry, the reality is that “…only 1.9 percent of the 33,976 USFS decisions between 2005 and 2018 were processed as Environmental Impact Statements, the most rigorous and time-consuming level of analysis, whereas 82.3 percent of projects fit categorical exclusions.” Unfortunately, as our report shows, the Forest Service has been using categorical exclusions to circumvent its obligations to consider less-impactful alternatives, disclose environmental consequences, and involve the public in meaningful ways. Worse, as part of Trump’s continued attack on the environment by weakening or removing 100 specific regulatory safeguards, the Forest Service is finalizing a wholesale rewrite of its NEPA rules that would establish even more CEs, collectively harming fish and wildlife and threatening wild places throughout the country.
The Trump administration’s unparalleled attacks on clean water, wildlife, and public lands threatens to undermine the very laws that people rely on to protect the environment. In addition to the polluted air and dirtier water that will certainly sicken and kill people, Trump’s pro-industry agenda is continuing to rollback landmark environmental protections no matter the cost or damage. From bulldozing Native American sacred sites and national monuments for a southern border “wall” to opening the Arctic Wildlife Refuge for oil and gas drilling, public lands across the country are in danger.
Our report is just one example of the extreme disregard the Trump administration has for nature, animals, and local communities in favor of their industry cronies. Before the Forest Service creates any new categorical exclusion authorities or finalizes its NEPA rule rollback, Congress should call for an independent investigation such as the one completed in 2006 by the Government Accountability Office that looked into the agency’s use of categorical exclusions for vegetation management projects. Absent such an investigation, the Forest Service must immediately stop its abuse of categorical exclusion authorities.