Much has been made of the Senate Republicans’ rush to vote on a now-dead health care bill without any meaningful estimate from the Congressional Budget Office, and deservedly so. The information a CBO estimate would contain is vital to making sound policy choices about the future of health care.
The main thrust of this bill is to vastly expand the “categorical exclusions” from normal review of forestry projects under the National Environmental Policy Act. NEPA review is actually a lot like a CBO cost estimate: It does not tell decision-makers what to do, it just tells them what will happen if they move ahead. At times, the environmental impact statements forecast serious problems but policymakers decide to go ahead anyway because the project is sufficiently important.
It is a very different thing to avoid finding out what the consequences would be in the first place. Yet that is what this legislation would do with its broad new categorical exclusions.
Routine and insignificant projects are not likely to be worth reviewing, and current law quite sensibly exempts them. The legislation’s exclusions from review, however, can be huge, covering up to 10,000 acres (roughly 15 square miles). Worse still, nothing prevents these projects from being laid one next to another, like postage stamps on an overweight letter. The result could be huge swaths of sensitive forest being clear-cut without anyone having any idea how much that will increase erosion and flooding or degrade water quality, to say nothing of its effect on vulnerable animals living there.
Categorical exclusions from information-gathering make sense when they cover types of projects that virtually never cause major problems. But that is not what these do at all. One proposed categorical exclusion is for projects to create an “early seral habitat forest.” That sounds nice as long as you do not know that catastrophes create early seral habitat forests. The explosion of Mt. St. Helens created an early seral habitat, as can fire or severe storms. This would allow logging to create similar conditions with only cursory review.
Another exclusion would cover any project that purportedly seeks to “improve” wildlife habitat. Because it says nothing about what that means, any improvement for any species apparently would qualify. So a project that would kill off hundreds of animals might “improve” the habitat for vultures.
Perhaps the most reckless of the new classes of projects that S. 1731 would allow to proceed without serious consideration of the consequences is the removal of trees from forests that have just experienced fire, disease, destructive storms, and the like.
When the few animals that have survived a fire start to venture forth from their shelters, the last thing they need to see is loggers’ big-rigs. If they are lucky enough to avoid being crushed, they will lose what little cover remained in the stricken forest. Bringing in heavy equipment after a fire also has been found to increase erosion and flooding.
Champions of restricting environmental reviews insist that it is crucial to prevent forest fires. With fires raging through much of the West, that is indeed a serious, frightening problem. But the wildfire problem is a reason to get more, not less, information before undertaking new logging projects.
Science-driven logging can help reduce fire damage: They clear away excessively dense underbrush of smaller vulnerable trees that help fires spread and burn hot enough to eventually engulf the large, mature trees that are the mainstays of the forest. Irresponsible logging, however, increases fire risks because, when the forest grows back, all trees will be the same age, size, and vulnerability. If we are going to reduce fire threats in the West, we need precisely the reviews that S. 1731 would eliminate.
The legislation’s supporters also claim that environmental reviews are a major bottleneck obstructing countless worthwhile logging projects. Yet Forest Service data shows that environmental reviews move fairly rapidly and are stalling relatively few projects. Only 2 percent of reviews end up in court,and even those lawsuits rarely stop logging from going ahead. A key source of delay is the bizarre practice of “fire-borrowing”, denuding all other parts of the Forest Service – including those that process logging applications – to pay for fire-fighting.
Congress should pass bipartisan legislation that addresses this problem head-on rather than calling for more heedless, uninformed policy-making than we already have.
David A. Super is a professor of law at Georgetown Law. He also served for several years as the general counsel for the Center on Budget and Policy Priorities.