July 14, 2008

A NEPA Digression

By A NEPA Digression

Although this blog is principally concerned about ESA-related materials, the Ninth Circuit Court of Appeals recently issued a decision in a case involving the National Environmental Policy Act and the National Forest Management Act having implications for ESA jurisprudence in the Ninth Circuit and therefore meriting some treatment here.

With good parts of the West suffering from a particularly intense and disastrous fire season, the public is very aware of the importance of sound forest management and wildfire protection. But what may have escaped the public’s notice is a recent court decision that will allow the Forest Service and other forest management agencies to implement needed programs to prevent our National Forests from going up in smoke.

On July 2, the Ninth Circuit issued an en banc decision in The Lands Council v. McNair, a case concerning an environmentalist challenge to a major timber management project in the Idaho Panhandle National Forest. The environmentalist plaintiffs sued to enjoin the project on the grounds that it would harm certain sensitive species and wouldn’t preserve enough old-growth forest. The district court denied the request for an injunction, but on appeal a panel of the Ninth Circuit reversed the lower court and held that the management project must be stopped. The Forest Service and others then moved for rehearing, which was granted.

In its en banc decision, the Ninth Circuit reviewed its recent environmental decisions and determined that a reappraisal was necessary:

[The plaintiffs] ask this court to act as a panelof scientists that instructs the Forest Service how to validate its hypotheses regarding [forest management]. [T]his is not a proper role for a federal appellate court. But [the plaintiffs’] arguments illustrate how, in recent years, our environmental jurisprudence has, at times shifted away from the appropriate standard of review and could be read to suggest that this court should play such a role.

The court then went on to explain the particular recent "shifts" in the case law which needed to be corrected. These were: (1) the rule that the Forest Service must conduct on-the-ground analysis of the effects of proposed forest management projects; (2) the rule that where a proposed project may create a "significant habitat disturbance" for a sensitive species, the Forest Service may not use habitat as a proxy for the species’s continued viability post-project; (3) the rule that the Forest Service must address every uncertainty regarding a proposed project’s environmental effects; and (4) the rule that alleged environmental injury always outweighs injury to economic or human community values.

Indeed, much of the court’s opinions reads like a mea culpa for its past judicial sins. Observing that "Congress has consistently acknowledged that the Forest Service must balance competing demands in managing National Forest System lands," the opinion states that the court’s "proper role" entails deference to the Forest Service; that the court’s earlier decisions contained "key errors"; and that the court, composed of "non-scientists," must not "impose bright-line rules on the Forest Service." It is generally not the role of the courts to second-guess an agency decision reasonably arrived at, or to oppose onerous burdens on agency decisionmaking. As the court admitted, "we hold that to the extent our case law suggests that a . . . violation occurs every time the Forest Service does not affirmatively address an uncertainty . . . , we have erred." And perhaps most importantly, the opinion recognizes, in declining "to adopt a rule that any potential environemental injury automatically merits an injunction," that environmentalism is not the summum bonum. As the court explained:

Though preserving environmental resources is certainly in the public’s interest, the [management project under review] benefits the public’s interest in a variety of other ways. According to the Forest Service, the Project would decrease the risk of catastrophic fire, insect infestation, and disease, and further the public’s interest in aiding the struggling local economy and preventing job loss.

The decision in The Lands Council is a win not just for the Forest Service, but for the public at large. It promises to have salutary effect throughout the West, which is good news for those interested in sound forest management, as well as balanced environmental regulation.

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