New Lawsuits Seek to Retain Strict Standards of the National Environmental Policy Act (NEPA)

Virginia groups sue U.S. Forest Service over new environmental review standards

From an Article by Sarah Vogelsong, Virginia Mercury, January 11, 2021

Four Virginia organizations have joined a coalition of Southern Appalachian environmental groups that are suing the U.S. Forest Service over changes to federal environmental rules that determine how much scrutiny regulators must give activities like logging and utility projects in national forests.

The rule, which was finalized by President Donald Trump’s administration Nov. 19, aims “to bypass the fundamental requirements of the National Environmental Policy Act” and “will cause significant harm to publicly owned national forests across the country and to members of the public who use those lands,” the lawsuit contends.

Virginia groups participating in the challenge include the Clinch Coalition, the Alliance for the Shenandoah Valley, Virginia Wilderness Committee and Wild Virginia. The South Carolina-based Chattooga Conservancy, Tennessee-based Cherokee Forest Voices, Washington, D.C.-based Defenders of Wildlife, Georgia Forestwatch and North Carolina-based Mountaintrue are the other plaintiffs.

All of the groups are being represented by the Southern Environmental Law Center. The case has been filed in the U.S. District Court for the Western District of Virginia’s courthouse in Big Stone Gap.

At the heart of the suit lies controversial changes to the National Environmental Policy Act, a landmark environmental protection law passed in 1969 that is sometimes called the Magna Carta of federal environmental laws.

Under NEPA, federal agencies are required to assess the environmental impacts of activities on federal lands, examine alternative ways those activities could be carried out and determine any mitigation that ought to take place to offset impacts.

Key among its provisions is the requirement for agencies to prepare either an “environmental assessment” or, for more significant and far-reaching projects, the longer and more detailed “environmental impact statement.” Projects that typically don’t have significant impacts can be granted a “categorical exclusion” that exempts them from either of these processes and their associated public input requirements.

In a 2010 guidance document for federal agencies, the Council on Environmental Quality, which administers NEPA, described a categorical exclusion as “a category of actions which do not individually or cumulatively have a significant effect on the human environment” and noted that the tool “can reduce paperwork and delay.” However, the memo warned, “if used inappropriately, categorical exclusions can thwart NEPA’s environmental stewardship goals, by compromising the quality and transparency of agency environmental review and decisionmaking, as well as compromising the opportunity for meaningful public participation and review.”

In July 2019, citing a backlog of more than 5,000 special use permit applications, the U.S. Forest Service proposed revisions to its NEPA regulations to increase “the efficiency of environmental analysis.”

“The Forest Service is not fully meeting agency expectations, nor the expectations of the public, partners and stakeholders, to improve the health and resilience of forests and grasslands, create jobs and provide economic and recreational benefits,” the agency wrote in the proposal published in the Federal Register. “The agency spends considerable financial and personnel resources on NEPA analyses and documentation. The agency is proposing these revisions to make more efficient use of those resources.”

Among the most important changes was an expansion of the categorical exclusions the Forest Service can now grant. U.S. Secretary of Agriculture this November said in a statement this November that the new and revised exclusions “will ultimately improve our ability to maintain and repair the infrastructure people depend on to use and enjoy their national forests.”

But a host of environmental organizations, including those involved in the suit against the Forest Service, say the changes remove key environmental safeguards and opportunities for public input, and in particular could allow virtually all logging operations in the national forests of Virginia, Tennessee, North Carolina and Georgia to go ahead without site-specific analysis.

Three new or revised categorical exclusions are being challenged. One would apply to activities including logging that disturb up to 2,800 acres and have “a primary purpose of meeting restoration objectives or increasing resilience.” Another would apply to the construction and realignment of up to two miles of permanent road for any purpose. A third would expand authorizations for the “special use” of up to 20 acres of land for activities including utility rights of way.

The first new exclusion has provoked particular concern among the lawsuit’s plaintiffs because of the implications they say it could have for logging in Southern Appalachian national forests, where logging projects tend to be smaller than 2,800 acres. One study of logging in national forests in the region between 2009 and 2019 conducted by the conservation groups found that 70 of the 71 projects that were completed fell below that threshold, with a median size of 535 acres.

Consequently, the plaintiffs contend that the new rule “would effectively allow the Forest Service to implement its entire logging program on these forests without site-specific analysis to inform public comment or consideration of alternatives.”

The environmental groups also argue that the Forest Service has been able to avoid detrimental impacts from projects in the past because of the environmental review process prescribed by NEPA that the new categorical exclusions would bypass.

“For example, Virginia Wilderness Committee’s comments on the draft EA for one recent project prompted the Forest Service to drop logging units that would have resulted in impermissible sediment loading into a creek that is home to the endangered candy darter, because Virginia Wilderness Committee showed that the agency’s initial sediment modeling was flawed,” the lawsuit claims.

The conservation groups’ study of national forest logging between 2009 and 2019 found that such environmental reviews led to the removal of almost 6,000 acres of Southern Appalachian forest from proposals. More than 1,500 of those acres were in Virginia’s George Washington and Jefferson National Forests.

“On average, members of the public pointed out at least two potentially significant impacts during the NEPA process per project,” states the lawsuit. “The large majority of these potentially significant impacts were avoided or mitigated by project changes.”

In August, more than 20 states also sued the Council on Environmental Quality over the NEPA changes, claiming that they “violat(e) NEPA’s text and purpose … and abandon() informed decision making, public participation, and environmental and public health protection.”