Enough legal games — we need to unleash American energy
Trump's proposed new forest rules would be a reality-show horror
We live in an age of excess. Why have one reality TV show with enraged participants insulting one another when you can have more than 300? Why pay CEOs 20 times what a typical worker makes when you can pay them 276 times as much? Why destroy two or three cars in a movie's chase scenes when you can wreck 532? We have become increasingly jaded about cumulative effects.
That is the spirit underlying the Forest Service's proposed rules that would radically reduce environmental scrutiny and community oversight of industrial projects in our nation's forests.
The proposed rules would change the Service's implementation of the National Environmental Policy Act (NEPA). NEPA is essentially a "look before you leap" statute. The Act does not prohibit any actions outright: It merely requires the government to gather the best information available about a potentially hazardous action before deciding whether to go ahead with it. Because officials in distant cities often fail to understand how actions will affect local communities, they require soliciting public input as part of the review. And because serious risks may not be immediately obvious to the untrained observer, reviews must consider available scientific knowledge.
The Trump Administration claims that radical changes are necessary because environmental reviews have been taking so long. Nothing inherent in the process of environmental reviews requires long waits. Instead, much of the delay is attributable to the chronic underfunding of the Forest Service, which leaves it without enough staff to review proposed major actions in the forests.
Rather than addressing this problem straightforwardly, with adequate staffing, the administration instead proposes several measures to expand the number of potentially injurious projects allowed to proceed without reviews.
First, the administration proposes to continue to expand the scope and number of "categorical exclusions" from review. Categorical exclusions were created to avoid wasting time on projects so modest that they obviously pose no environmental risks. If a tree is about to fall over onto a ranger station, no environmental review is required to remove it.
The administration, through various initiatives, has sought to expand categorical exclusions to exempt much larger projects from rigorous review. This proposal continues that trend and also allows the Forest Service to stack categorical exclusions. Thus, large, complex projects involving multiple activities could proceed without review if each of the activities within the project qualifies for one of the Forest Service's categorical exclusions. The proposal thus ignores the impact of aggregation: Just as the first reality show did not change our culture the way all those that followed have, cutting down trees is not an action that can be repeated indefinitely without an impact.
The new categorical exclusions in these proposed rules are huge and far from risk-free. Large logging projects, which could devastate vulnerable habitat, and road-building in pristine wildernesses would be among those escaping rigorous environmental review.
Second, the Forest Service proposes to treat environmental impact reviews conducted for one project in one place as providing all information necessary for approving the same kind of project anywhere in the country. Just as a move that is brilliant on "Big Brother" might prove disastrous on "The Bachelorette" (or "The Apprentice"), a project that causes no problems in Arizona could melt the tundra in Alaska.
This approach also makes a mockery of NEPA's requirement of community involvement: If one community somewhere in this vast country had its say on its version of a project, that is enough to deny all other communities their own voice. This reeks of the very worst of Washington elitism, treating everyone "beyond the Beltway" as utterly fungible.
And it eliminates NEPA's single most valuable feature: the consideration of alternatives. Sometimes a project is so important that it must be built notwithstanding likely environmental damage, but if a safer alternative can produce the same or better results, everyone wins. An alternative that may have been implausible in the community where an initial environmental review was conducted might be the superior choice in other places where similar projects are proposed.
Moreover, knowing that a project was approved is not at all the same as knowing that it was, in fact, safe. The Forest Service, however, lacks an effective system for assessing the results of approved projects to see if its environmental reviews correctly identified their risks. Approving new projects based on untested "experience" with prior projects implies that the agency is infallible. That shows more hubris than a reality show villain.
A third component of the proposed rules would allow the Forest Service to approve a particular response - typically logging - whenever it found a particular condition, such as insect infestation or fire damage. This would ignore the wide variety of conditions that could be classified as, for example, "insect damage" as well as a host of contextual factors that indicate whether logging is an appropriate response. Bad food on "Hell's Kitchen" demands an immediate response; bad food on "Survivor" goes with the territory.
The public and their representatives in Congress should give these proposed regulations terrible ratings and advocate for their early cancellation. The reality of damage to our nation's forests demands nothing less.
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.