Behind the Smoke Screen

An analysis of the White House's "wildfire" bill to weaken environmental protection and public rights in federal land management decisions


Marty Hayden, Earthjustice, Washington, DC 202-667-4500
Tom Waldo, Earthjustice, Juneau, AK 907-586-2751
Todd True, Earthjustice, Seattle, WA 206-343-7340

Cloaked in a mantle of “wildfire prevention,” legislation proposed by the White House on September 5, 2002, attempts to eviscerate key environmental and public participation laws that apply to the management of federal public lands. However, only the first of the four sections, flawed as it is, is specific to forest fire prevention. Among other things, this section seeks to eliminate the application of the National Environmental Policy Act and to interfere with, or flatly prohibit judicial review. The other three sections attempt fundamental changes in existing law by authorizing a new timber industry handout called “stewardship contracting,” eliminating the Forest Service appeal process established under the Appeals Reform Act of 1993, and even attempting to limit the authority of the federal courts to enjoin activities found to be illegal. Together, the Bush Administration’s “Healthy Forests” proposals constitute a radical revision of public lands law as it presently exists and provide an unprecedented opportunity for timber companies to gain access to federal timber, free of public scrutiny and legal restraints.


Lawless Logging

Section 1. Emergency Hazardous Fuels Reduction Plan

This section would apply to Forest Service and BLM projects “to reduce hazardous fuels” in any “fire risk condition class three area” except congressionally designated Wilderness. By its terms it would also apply to national parks and national wildlife refuges.

Section 1 seeks to exempt all projects “to reduce hazardous fuels” from the National Environmental Policy Act. Sec. 1(a). NEPA is the fundamental environmental law for all federal agencies, requiring that they look before they leap (or cut) by gathering information and analyzing the potential impacts of their decisions and actions on wildlife, water quality and the environment. It also requires the agency to consider alternative courses of action, to disclose the information and alternatives to the public through environmental assessments and impact statements, and to take into consideration comments from the public, state and local governments, Indian tribes and other federal agencies. Without an enforceable NEPA, the agency need not (and, based on our experience with the 1995 salvage rider), will not consider environmental impacts, alternatives, or the views of the public.

There is no effective limit on the land area potentially subject to this section. Although the bill states that no more than 10 million acres will be “treated,” it also provides that the agency may “treat” even more acres if the agency first classifies them as high fire risk areas. Sec. 1(c)(1), -(2).

Section 1 directs the secretaries of Agriculture and the Interior to develop a “collaborative process” with “interested parties” but exempts this process from the Federal Advisory Committee Act and from any court challenges. Sec. 1(d)(1), -(f)(2). This would insulate both departments from FACA’s requirement that there be a balanced representation of a variety of interests in such collaborative processes and from FACA’s public disclosure requirements.

This section also requires the departments to develop expedited consultation procedures for threatened and endangered species under the Endangered Species Act. Sec. 1(d)(2). This is likely to result in hastier reviews based on less complete data and fewer opinions and to increase the chances that timber sales will not adequately protect imperiled species. Further, these expedited consultation procedures, no matter how deficient, would be exempt from judicial review. Sec. 1(f)(2).

The section would exempt all fuel reduction timber sales from the right of administrative appeal. Sec. 1(e). Administrative appeals provide members of the public with a short, efficient, and even lawyer-free means to get upper level agency officials to review agency decisions. They have been effective in ensuring that agency opinions comply with the law and reflect public policy. In fact, they have frequently resulted in an agency’s making important modifications to, or completely withdrawing, illegal decisions and thereby eliminating the need and expense of formal court proceedings.

Of great concern in Section 1 is the provision that attempts to prohibit federal courts from entering temporary restraining orders (TROs) or preliminary injunctions. Sec. 1(f)(1)(C). TROs and preliminary injunctions are orders traditionally within the power of the courts to prevent irreparable harm while a lawsuit is pending, e.g., an order that trees not be cut until the legality of the authorizing decision is determined. They are available only if the person bringing the lawsuit can show a likelihood of prevailing and that the action, if taken, is for all practical purposes irreversible. If courts are stripped of their powers to issue TROs and preliminary injunctions, it is very likely that the trees in question will be cut before a court can hear and decide whether cutting them is legal.

In summary, several provisions of Section 1 seek to make it impossible, or nearly impossible, for citizens to effectively enforce any environmental laws once the Forest Service or BLM has characterized an area as presenting a high risk of fire and designated the logging or other activity to be a fire reduction strategy. First, it attempts to exempt such projects from our most fundamental environmental law, NEPA. Second, it provides an unreviewable “collaborative process” to approve these projects with no assurance of balance. Third, it provides for hastened and quite possibly inadequate procedures for protecting threatened and endangered species, procedures that are also not subject to judicial review. Fourth, it eliminates administrative appeals. Fifth, it attempts to preclude the courts from issuing orders needed to prevent the trees from being cut while a lawsuit brought on any remaining grounds is decided.

Finally, as discussed further below, the bill makes it much more difficult for citizens to obtain a judicial remedy, i.e., a permanent injunction, even if they overcome all other obstacles the bill imposes. Under Section 4 it attempts to force the courts to allow even an illegal sale to go forward if the agency is still of the view that it should.

A License to Steal

Section 2. Stewardship Contracting

Section 2 provides federal land management agencies with sweeping new authority to enter into long-term “goods-for-services” contracts with “private persons, or other public or private entities” to perform a wide array of services, all using timber or other forest products as the medium of payment. In other words, a logging company can keep the timber.

This section proposes to trade trees for almost any activity, as the proposed contracting authority would be available to achieve any “land management goals for the national forests and other Federal lands.” Sec. 2(a). This contracting authority is not limited to fire prevention efforts or to lands presenting a high fire risk. Even the broad list of land management goals contained in Section 2(b) (“to promote healthy forests”) is merely presented as a list of possible suggestions.

Section 2 would remove the normal requirement that timber corporations to pay for timber sales in dollars. Instead, they would “pay” by conducting road work, cutting trees, etc., on the assumption that such activities conferred a benefit on the public. The bill explicitly makes clear that the collection of money is secondary to obtaining such services. Federal agencies already lose vast sums of money on timber sales. This program would make the situation much more difficult and accountability almost impossible.

Similarly, Section 2 would remove the normal requirement that timber sales be awarded to the highest bidder. Instead, the agency could consider such fudgeable factors as “the quality and quantity of products to be removed” or any other “unit of measurement appropriate to the contracts,” to be determined by the agency. Sec. 2(c)(3)(B).

As to any money the agency may actually collect under these contracts, Section 2 creates an off-budget slush fund for the agency. It authorizes the agency to spend the money with no further appropriations by Congress, removing the normal legislative oversight on agency spending. Sec. 2(d)(2)(A).

Congress has previously authorized a limited pilot program to test 84 “stewardship” projects, only five of which have been completed. Moreover, there are only 30 in any stage of planning or implementation. It would be reckless to provide the agencies this expansive new authority before we have even learned the lessons the pilot program is intended to test.

In summary, Section 2 holds out an irresistible temptation to timber companies to steal publicly owned timber. The value of the services will be inflated, assuming they are necessary at all, and the value of the timber will be underestimated. The proposal is similar to the controversial Purchaser Road Credit Program where the Forest Service was authorized to trade trees for the construction of logging roads needed by the timber industry to access timber sales. The PRC program is part of the reason the Forest Service ended up with over 386,000 miles of roads, including 294,000 miles of timber (logging) roads, in the first place. Congress eliminated this program in 1998.

Eliminating Meaningful Public Participation

Section 3. Repeal

Section 3 repeals the Appeals Reform Act that was enacted into law as part of the FY 1993 Interior Appropriations bill. Pub. L. 102-381. The Appeals Reform Act ensures that the public has the right to question decisions made by the Forest Service without going to court. Repealing this Act would eliminate specific statutory rights of meaningful public participation. The Appeals law also ensures that trees will not be cut while an appeal is pending unless the Forest Service determines that there is an emergency; in return, it requires that appeals be decided within 45 days.

The appeals process is an informal one that does not require the participation of lawyers. It works quickly and efficiently, improves agency performance, protects the rights of all affected by Forest Service decisions, and helps ensure compliance with the law. It also provides an important opportunity for the Forest Service to take a second look at some projects and very often to avoid litigation. The repeal of the Appeals Reform Act would allow the Forest Service to eliminate the appeals process for all timber sales and other activities, not just those related to fire prevention.

Tilting the Scales of Justice

Section 4. Balance of Short-term and Long-term Environmental Harms

Section 4 attempts to make it much more difficult for courts to enter orders needed to protect the environment. It tries to require courts to give deference to an agency’s findings regarding the balance of harms in deciding whether to enter a temporary restraining order, preliminary injunction, or a permanent injunction in any court challenge where the agency claims the action is necessary to “restore fire-adapted forest or rangeland ecosystems.” In other words, this section applies not only to activities carried out under the fire plan (Sec. 1.) where TROs and preliminary injunctions are prohibited. Moreover, Section 4 asks the courts to give deference to the agencies when deciding whether to issue a permanent injunction against an activity even when that activity has already proven to be illegal. Essentially, the provision would have the courts license an agency to continue to operate in violation of the law, regardless of environmental harm. Section 4 seeks to legislate an astounding change in American legal standards that would fundamentally alter the relationship between citizens and federal land agencies.

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