Academic journal article Environmental Law

A Foreordained Formality: The Utter Uselessness of Environmental Impact Statements for Federal Actions in Experimental Forests

Academic journal article Environmental Law

A Foreordained Formality: The Utter Uselessness of Environmental Impact Statements for Federal Actions in Experimental Forests

Article excerpt

This Article criticizes the courts' application of the National Environmental Policy Act (NEPA) to federal actions in experimental forests. Further, this Article questions whether environmental impact statements (EISs) have any utility at all in experimental forests. Under NEPA, federal agencies must prepare EISs for actions that have a significant effect on the environment. However, EISs only operate as intended when these agencies integrate NEPA early in the planning process and seriously consider lower-impact alternatives. When agencies learn how courts will review their actions, it is possible for agencies to follow the correct procedures for an EIS without complying with the spirit of the law--taking a hard look at their proposed action and various lower-impact alternatives to determine if they are doing their part to protect the environment. Therefore, this Article contends that federal actions in experimental forests have become unreviewable, both because of the unique nature of experimental forests, and the incentive for agencies to be disingenuous in drafting impact statements.

I.   INTRODUCTION
II.  NEPA AND ITS REQUIREMENTS
     A. NEPA
     B. The NEPA Process
III. THE NATIONAL FOREST SYSTEM
     A. National Forests, Their History, and Their Purpose
     B. Experimental Forests
IV.  THE NINTH CIRCUIT'S OPINION IN LEAGUE OF WILDERNESS
     DEFENDERS
     A. The Project
     B. The League's Argument
V.   EIS STATEMENTS AND EXPERIMENTAL FORESTS
VI.  PROPOSING A SOLUTION AND LEAGUE OF WILDERNESS DEFENDERS
     GOING FORWARD
VII. CONCLUSION

I. INTRODUCTION

Under the National Environmental Policy Act (NEPA), (1) federal agencies must prepare environmental impact statements (EISs) for actions that have a significant effect on the environment. (2) For over forty years federal agencies have engaged in costly litigation over the sufficiency of EISs. Most of the time courts have sided with the agencies, giving great deference to their expertise and the purpose of the proposed project. (3) However, this litigation, or the prospect of it, has forced agencies to take a hard look at the environmental impacts of their actions. This chilling effect makes EISs exactly the kind of "action-forcing device[s]" that NEPA drafters envisioned them to be. (4)

Regardless, EISs only operate as intended when federal agencies integrate NEPA early in the planning process and seriously consider lower-impact alternatives. When agencies know how courts will review their actions, it is possible for them to fulfill the letter of the law--following the mechanical guidelines for an EIS--without complying with the spirit of the law--taking a hard look at their proposed action and various alternatives in order to determine if they are doing their part to protect the environment. Agencies are able to satisfy both NEPA and the public while going ahead with their preferred plan.

United States Forest Service (USFS) actions in experimental forests lend themselves to this kind of shoddy, false-alternatives analysis. In League of Wilderness Defenders--Blue Mountains Biodiversity Project v. United States Forest Service (Defenders), (5) the Ninth Circuit considered whether a USFS EIS for a thinning and fuels reduction project in the Pringle Falls Experimental Forest (Pringle Falls) in Oregon complied with NEPA. (6) In its discussion, the court hinted that the analysis was a little different because of the project's location in an experimental forest, but failed to explain when, if ever, an EIS for an experimental forest would be insufficient. (7) EISs are merely a foreordained formality for USFS actions in experimental forests, and USFS can sidestep a serious look at environmental impacts when they have become familiar with how courts will review their actions.

The first section of this Article will discuss NEPA and its requirements for federal agencies, focusing especially on the process agencies must go through to be in compliance. …

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