March 19, 2013

Supreme Court to review another 9th Circuit environmental decision

By Damien M. Schiff Senior Attorney
Tahoe National Forest (photo: USFS)

On Monday, the Supreme Court granted cert in United States Forest Service v. Pacific Rivers Council, to review the Ninth Circuit Court of Appeals’ 2-1 decision overturning the Forest Service’s assessment of the environmental impacts of proposed amendments to management plans for eleven Sierra Nevada national forests.  This marks the second forest related Ninth Circuit decision reviewed by the Supremes in as many years (still pending on this Term’s docket is NEDC v. Brown, concerning Clean Water Act regulation of stormwater runoff from logging roads; PLF participated as amicus).

In 2005, Pacific Rivers Council filed suit under the National Environmental Policy Act to challenge the Forest Service’s decision to allow more timbering and other productive activity on the Sierra Nevada’s national forests.  The Council lost in the district court; on appeal in the Ninth Circuit, it contended that the Service’s environmental impact statement detailing the impacts of the proposed amendments was defective because it failed adequately to assess the impact of increased productive activity on a variety of fish and amphibeans.  The Ninth Circuit, in an opinion authored by Judge William Fletcher and joined by Judge Reinhardt, agreed in part with the Council’s critique.  Specifically, the court held that the Forest Service had failed adequately to assess the environmental impacts of the proposed amendments on fish species.

The Forest Service had contended that, because the amendments were to various forest plans and did not themselves portend any immediate change in the environment, the environmental impact statement could appropriately gloss over what would be, in the agency’s view, speculative impacts.  The Ninth Circuit majority disagreed, holding that the Service must assess the likely impacts as soon as such an assessment is reasonably possible.  The majority also rejected the Forest Service’s argument that the Council lacked standing to challenge the amendments.  The majority distinguished the Supreme Court’s environmental standing decision in Summers v. Earth Island Institute (in which PLF participated as amicus):  there the plaintiff challenged regulations that applied to all national forests but was unable to show that any of its members would visit an affected forest, whereas here the agency action would apply only to 11 national forests and, further, several Council members had stated that they would visit the affected forests.

Writing in dissent, Judge Randy Smith excoriated the majority for failing to heed the Court’s en banc decision in The Lands Council, which reversed a recent trend in Ninth Circuit environmental law jurisprudence that gave relatively little deference to agency decisionmaking, especially when challenged by environmental groups.  Judge Smith argued that the majority acted contrary to The Lands Council by failing to defer to the Forest Service’s conclusion that “tiering” its environmental review and delaying the required “hard look” until specific timbering projects were proposed was acceptable.  (Interestingly, Judge Smith did not address standing; presumably, he agreed with the majority’s analysis).  He concluded that the Forest Service could postpone its analysis so long as “a critical commitment of resources” had not yet occurred.

The Supreme Court’s decision to review the case extends to the NEPA tiering question, as well as to the Council’s standing and the ripeness of its claims.  No question, the Council has a better standing argument than in Summers; further, the equities are a bit more on its side:  the Forest Service here did not challenge standing until on appeal, and so the Council had a limited opportunity to provide evidence of its standing.  The Supreme Court, however, may be looking at this case as an opportunity to refine and extend Summers so that standing requires not just an affirmation of an impending trip to a particular national forest, but also to the particular affected area within that national forest.

I’m curious on the ripeness question.  If the Court means prudential ripeness, then that’s an issue that can be waived.  Perhaps the government or the defendant intervenors raised ripeness in the Ninth Circuit, and the majority simply failed to address it.  Or perhaps we’re talking about the constitutional dimension of ripeness.  In any event, the question gives the Court an opportunity to build on its forest management-ripeness jurisprudence since Ohio Forestry Association v. Sierra Club.

Finally, if the Court reaches the merits, this case may prove to be an important NEPA precedent.  Undoubtedly there has been a trend in the last decade or so for federal agencies to defer more in-depth environmental analysis on “tiering” grounds, and the practice has garnered some criticism.  The Ninth Circuit majority quoted an example of such criticism:

Reliance on programmatic NEPA documents has resulted in public and regulatory agency concern that programmatic NEPA documents often play a “shell game” of when and where deferred issues will be addressed, undermining agency credibility and trust.

Yet, reducing an agency’s ability to tier, in order supposedly to strengthen a NEPA analysis, can have perverse effects.  The point of tiering is that the anticipated activity is not known well enough accurately to estimate its impacts; thus, some of the environmental impact assessment is deferred.  But if an agency cannot tier, and if it cannot adequately assess the impacts now, then the result will be NEPA documents that purportedly address all impacts definitively but in reality do so inadequately.  True, this wouldn’t be a shell game, but it would be a sham nonetheless.

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