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.
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. The second section examines the history and purposes of national forests and experimental forests, highlighting how experimental forests are unique. The third section explains the USFS's proposed project in the experimental forest and the Ninth Circuit's opinion in Defenders, giving special attention to the arguments made by the environmental appellants and the court's treatment of those arguments. The fourth section will argue that USFS actions in experimental forests have become unreviewable under the current model, as demonstrated by the Ninth Circuit's opinion in Defenders. The fifth and final section will discuss alternatives to the current process and what the decision in Defenders might mean for future NEPA decisions.
NEPA AND ITS REQUIREMENTS
NEPA has been both heartily lauded and severely criticized in its forty-five year existence. (8) This is perhaps because the Act prescribes a very specific--and often time consuming--process with which federal agencies must comply before embarking on projects that may affect the environment. (9) If this process is effective in producing the desired result--eliminating or at least significantly lessening damage to the environment--then much of the bureaucracy can be forgiven. If, however, the laborious process produces no noticeable change, detractors will find much to criticize indeed in this behemoth of a document. This section will examine the Act, its requirements for federal agencies, and the way various courts have interpreted these requirements.
NEPA, a glowing bipartisan pronouncement of man's desire to five harmoniously with his environment, was signed into law by President Richard Nixon on January 1, 1970. (10) Often called the "Magna Carta" of environmental laws, it was one of the first major pieces of environmental legislation to come out of Congress. (11) NEPA's purpose statement overflowed with promise:
To declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of ecological systems and natural resources important to the Nation; and to establish a Council on Environmental Quality. (12) NEPA is markedly different from the Clean Air Act of 196313 and the Clean Water Act of 197214 in that it was not directed at people or industry, but instead is directed at federal agencies. (15) The primary goal of NEPA is to "assure that all branches of government give proper consideration to the environment prior to undertaking any major federal action that significantly affects the environment." (16)
NEPA's most important and far-reaching directive requires federal agencies to incorporate environmental considerations in their planning and decision making. (17) When government agencies propose an action that will significantly affect the environment, NEPA directs them to prepare a detailed EIS, which must include: 1) the environmental impact of the proposed action; 2) any adverse environmental effects; 3) alternatives to the proposed action; 4) the relationship between local short-term uses of the environment and long-term productivity; and 5) any irreversible and irretrievable commitments of resources. (18)
NEPA gave citizens and environmental groups a great amount of ammunition with which to attack agency actions that affected the environment. Early courts interpreted NEPA broadly, and it appeared that judicial enforcement of the law might drastically scale back, or even eliminate, the possibility of any federal action that might severely affect the environment. (19) Over time, however, courts began to rein in NEPA, emphasizing that the law has only a procedural effect. (20) Recently, courts have been somewhat unwilling to look at the actual impact of a proposed action on the environment. Instead, courts will examine whether agencies took a hard look at the environmental effects of their actions, (21) or followed the correct procedures in determining those effects. (22) A failure to discuss adverse environmental impacts will be fatal, but so long as all significant environmental impacts are discussed and the agency can claim to have made a reasoned decision, whatever decision it reaches is likely permissible. (23)
The courts' procedural focus raises the question of whether NEPA has any teeth at all. Yet, the mountains of environmental litigation emanating from various agencies' EISs would suggest that NEPA's teeth are very sharp indeed. The NEPA procedural requirements still force agencies to be very thorough in assessing the impacts their proposed actions will have on the environment and whether alternatives may exist. (24) At the very least, NEPA compels agencies to stop and think about their actions, even if a proposed action may have very little chance of being prohibited. The very prospect of extended litigation over a shoddily prepared EIS should force agencies to take the drafting seriously and to earnestly consider mitigation. (25)
The NEPA Process
The NEPA process involves a series of interrelated steps with which agencies must comply, though some undertakings are categorically excluded from a detailed analysis if certain criteria are met. (26) If an action does not fall into a categorical exclusion, the federal agency must prepare a written environmental assessment (EA). (27) The EA is a concise public document that is used to determine whether a proposed action would significantly affect the environment. (28) The EA briefly considers impacts of the action, alternatives, mitigation measures, cost-benefit analysis, and the action's consistency with other laws and programs. (29) The overwhelming majority of environmental assessments result in a finding of no significant impact (FONSI). (30) If an agency issues a FONSI, it has found that the proposed action will not have a significant effect on the human environment, and an EIS will not be prepared. (31)
If an agency...