The Underappreciated Role of the National Environmental Policy Act in Wilderness Designation and Management
Blumm, Michael C., Wisehart, Lorena M., Environmental Law
I. INTRODUCTION II. BACKGROUND A. Wilderness Preservation Before the Wilderness Act B. Examining the Wilderness Act C. The Roadless Area Review Evaluation (RARE) audits Challenges III. NEPA'S ROLE IN EXPANDING THE WILDERNESS SYSTEM A. Early NEPA Cases Affecting the Wilderness Designation Process B. Enjoining RARE II C. Congressional Intervention D. NEPA and Wilderness Expansion in National Forests IV. NEPA'S ROLE IN WILDERNESS MANAGEMENT A. Enjoining Management for Non wilderness Purposes B. Permits and Cumulative Impact Analyses V. NEPA'S ROLE IN PRESERVING POTENTIAL WILDERNESS A. NEPA and Roadless Areas in National Forests B. The Forest Service's Roadless Rule C. NEPA and BLM Wilderness Study Areas D. NEPA, Land Plans, and Wilderness Characteristics VI. CONCLUSION
The National Environmental Policy Act (NEPA), (1) the nation's basic environmental charter, has often been criticized for its lack of substance. (2) However, NEPA has in fact played a substantial, if overlooked, role in fostering improved federal environmental decision making. (3) A particularly noteworthy contribution of NEPA largely escaping widespread recognition has been the critical role NEPA has played both in encouraging the congressional designation of wilderness areas and in helping to ensure their sound management. In combination with the standards and procedures of the Wilderness Act (4) and the Federal Land Policy and Management Act (FLPMA), (5) NEPA has functioned to provide protection to de facto wilderness lands prior to official wilderness designation and to guard against unwise developments in designated wilderness areas.
NEPA's role in encouraging the designation of wilderness areas is particularly noteworthy. After the Wilderness Act created some nine million acres of "instant" wilderness in 1964, (6) wilderness designations stalled amid the statute's cumbersome study procedures. (7) However, after the Tenth Circuit ruled in 1971 that the Wilderness Act required the Forest Service to study unroaded lands adjacent to so-called "primitive" areas for their wilderness potential before allowing timber harvests of those areas, NEPA assumed a prominent role in studying the wilderness potential of these areas. (8) And after the Forest Service decided to conduct a nationwide study of potential wilderness area through two "Roadless Area Review and Evaluations" (RARE I and II), the Ninth Circuit stopped the agency from allowing development on lands that it had decided not to recommend for wilderness designation on NEPA grounds. (9) This NEPA injunction effectively ended the RARE program and induced Congress to enact a series of state wilderness statutes that in the 1980s and early 1990s more than doubled the number of wilderness areas and added more than eight percent of the current wilderness acreage. (10)
With the maturing of the wilderness system in the late 1980s, attention shifted from wilderness designation to wilderness management. In several decisions, courts interpreted NEPA as significantly constraining the discretion of federal agencies in their management of wilderness areas. For example, the D.C. District Court decided that the Forest Service could not, consistent with NEPA, sanction wholesale timber harvesting of insect-damaged timber inside a wilderness area for the benefit of commercial timberlands outside the wilderness. (11) And the Ninth Circuit determined that NEPA required the Forest Service to evaluate the effect of reissuing a permit for pack-mule trips in a wilderness area on the Wilderness Act's essential goal of preserving wilderness character, while pursuing ancillary recreational goals. (12)
Courts have also invoked NEPA to protect areas with wilderness potential that have not attained wilderness status. For example, the Ninth Circuit interpreted NEPA as requiring the Forest Service to evaluate the effect of logging roadless lands not selected for wilderness designation and to protect the congressional prerogative to designate wilderness in the future. …