11th-Hour Attacks On NEPA

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Thursday, November 19th, 2020

Camp on the Sheenjek River, Arctic National Wildlife Refuge. Photo Credit: Alexis Bonogofsky for USFWS

We are witnessing the last gasps of the Trump administration–the frantic rush to get bad projects and harmful new regulations approved before their time ends on January 20. The Trump administration is rushing to issue oil leases in the Arctic National Wildlife Refuge. Also in Alaska, the Trump administration appears ready to issue a permit for the controversial “Pebble Mine.” Today gives us another: new rules by the Forest Service for implementing the National Environmental Policy Act (NEPA). As most of EPIC’s public lands program focuses on our National Forests, and as NEPA is our most important tool to advocate for better forest management, this is deeply concerning to us. 

The good news is that their ineptitude has forced them to jettison some things that were originally proposed in a draft rule from this summer. The proposed rules would have conflicted with a new, separate rule issued by the Council on Environmental Quality, showing the internal failures of the administration to coordinate their actions.

The bad news is that the Forest Service is still moving forward with other proposed changes, including the creation of six new “categorical exclusions” and the expansion of two others that are already on the books. Categorical exclusions are worrying because they allow the Forest Service to bypass normal environmental impact analysis to fast-track projects. Projects up to 4.4 square miles (2,800 acres), from things like commercial logging to new road construction, are exempted from project-specific environmental impact analysis and public engagement. Historically, categorical exclusions were limited to activities that would pose an extremely small risk to the environment–repainting a Forest Service building, for example–but have been gradually expanded as a way to avoid NEPA. While we have seen expansion of categorical exclusions in the past, the new rules stand out because of the massive new size and scope of this end-around.

The rules also adopt a new trick to avoid public participation in land management decisions: a “decision of NEPA adequacy,” whereby the Forest Service would rely on previous NEPA analysis in lieu of new review and public engagement. (That’s right: the Forest Service could use a timber sale from the past in the general vicinity of a project to approve a new timber sale without consulting the public.)

11th-hour attacks on our bedrock environmental law are concerning and cannot stand. Cumulatively, the rules silence local community involvement and shortcut the science-based management of public lands.