By Travis Brooks
The U.S. Court of Appeals for the Ninth Circuit recently rejected an Environmental Assessment (EA) prepared by the U.S. Forest Service (USFS) that determined that an Environmental Impact Statement (EIS) was not required. Instead, the court found that an EIS must be prepared under the National Environmental Protection Act (NEPA). As the court noted, the EA did not substantively address multiple expert opinions and evidence that the Crystal Clear Restoration Project (CCR Project) near Mount Hood would have significant environmental impacts and be ineffective at reducing forest fire danger. The court also found that the EA failed to properly assess cumulative impacts from the CCR Project. Ultimately, the decision again highlights the need for agencies conducting environmental assessments under the NEPA to perform a full and defensible assessment of potential environmental impacts, before determining that an EIS is not required. This is especially true for projects that are “highly controversial.” [Bark v. United States Forest Service, 958 F.3d 865 (9th Cir. 2020).]
Factual and Procedural Background
The USFS proposed the CCR, which involved the sale of timber affecting 11,742 acres in the Mt. Hood National Forest. The USFS claimed that the forest stands in the project area were overstocked as a result of past management practices. According to the USFS, overcrowded forests, where trees are closer together, are more susceptible to insects and disease and to high-intensity wildfires. The CCR Project would allow for logging at specific locations pursuant to a technique called “variable density thinning.” This process would give the USFS flexibility in choosing which trees to cut thus allowing the USFS to create variation within an area of forest so that it “mimic[ed] a more natural structural stand diversity.” The CCR Project would leave an average canopy of 35-60 percent in the affected project site, with a minimum of 30 percent where the forest is more than 20 years old.
The USFS conducted an Environmental Assessment under NEPA. The EA determined that the CCR Project had no significant effects and USFS issued a Finding of No Significant Impact (FONSI) and did not prepare an EIS.
BARK, a conservation organization, filed a complaint against the USFS, bringing claims under NEPA and the National Forest Management Act (NFMA). The NEPA claim alleged that the USFS did not undertake a proper analysis of the environmental impacts of the Project or of alternatives to the Project. The U.S. District Court granted summary judgment against BARK on all claims.
The Ninth Circuit’s Decision
The Ninth Circuit Court began by noting that Circuit Courts will review a District Court’s grant of summary judgment de novo. Under the federal Administrative Procedure Act, a Circuit Court can overturn an agency’s conclusions when they are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” An agency action is arbitrary and capricious if the agency:
“. . .relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. . .An agency’s factual determinations must be supported by substantial evidence.”
When reviewing an agency’s finding that a project has no significant effects under NEPA, the court must determine whether the agency met NEPA’s hard look requirement that:
“. . .based its decision on a consideration of the relevant factors, and provided a convincing statement of reasons to explain why a project’s impacts are insignificant.”
The term “significant” includes “considerations of both the context and intensity of possible effects.”
The court determined that based on the above principles, the USFS’ decision not to prepare an EIS was arbitrary and capricious for two independent reasons: 1) the project’s environmental effects were highly controversial and uncertain, meaning that an EIS must be prepared, and 2) the USFS failed to identify and meaningfully analyze the cumulative impacts of the project.
Project Effects Were Highly Controversial and Uncertain
The Ninth Circuit noted that the effects of the project were highly controversial and uncertain, thus requiring preparation of an EIS. Although the USFS claimed that the purpose of the project was to reduce the risk of wildfires and promote safe fire-suppression activities— BARK identified considerable evidence showing that “variable density thinning” will not achieve that purpose.
As the court noted, under NEPA, a project is:
“. . .highly controversial if there is a substantial dispute about the size, nature, or effect of the major Federal action rather than the existence of opposition to a use.”
A substantial dispute exists when evidence:
“. . .casts serious doubt upon the reasonableness of an agency’s conclusions. . . .mere opposition alone is insufficient to support a finding of controversy.”
The Risk of Fire
The USFS presented evidence that variable density thinning made treated areas more resilient to fire danger. However, substantial expert opinions were also presented by BARK that contradicted USFS claims regarding the effectiveness of the practice. BARK highlighted that it has become more commonly accepted that reducing fuels does not consistently prevent large forest fires, and seldom significantly reduces the outcomes of large fires. BARK also presented evidence that variable density thinning might exacerbate fire severity in some instances, and that a reduction in fuel does not necessarily suppress fire risk and intensity.
The court noted that the environmental analysis did not sufficiently address the opinions that were contrary to the USFS opinions regarding the variable density thinning program and merely incorporated conclusory statements such as “there are no negative effects to fuels from the Proposed Action treatments.” Therefore, BARK showed that a substantial dispute existed about the effect of variable density thinning on fire suppression, even though the circuit court’s role was not to assess the merits of variable density thinning. The court noted that while BARK pointed to numerous expert sources contradicting USFS theories as to the effectiveness of variable density thinning, the USFS merely reiterated its conclusions about vegetation management and did not meaningfully respond to the substantive research presented by BARK. Under NEPA, when one factor raises “substantial question” about whether an agency action will have a significant environmental effect, an EIS is warranted. Because the project was highly controversial and its effects uncertain, the court concluded that USFS’s decision not to prepare an EIS was arbitrary and capricious.
Failure to Identify and Meaningfully Analyze Cumulative Impacts
The Ninth Circuit also noted that the USFS failed to identify and meaningfully analyze cumulative impacts of the CCR Project. Under NEPA, a cumulative impact is the:
“. . .impact on the environment which results from the incremental impact of the action where added to other past, present, and reasonably foreseeable future actions regardless of what agency. . .undertakes such other actions.”
The court noted that although the USFS EA attempted to analyze the cumulative effects of the CCR Project by including a table listing other projects, the cumulative impacts analysis was insufficient because it included no meaningful analysis of any of the identified projects. The court found glaring shortcomings in the USFS’ cumulative impacts analysis as it simply listed other projects without including any information about any of the projects listed beyond naming them. Nonetheless, the USFS EA concluded that there were no direct or indirect effects that would cumulate from the project, and that the project would have a beneficial effect on forest stands by moving them towards a more resilient condition. As the court noted, “[t]hese are the kind of conclusory statements, based on vague and uncertain analysis that are insufficient to satisfy NEPA’s requirements.”
The court went on to highlight other parts of the USFS analysis that relied on conclusory assertions that the Project has “no cumulative effects,” such as where it listed effects that may occur with relation to specific sub-topics such as fuels management, transportation resources and soil productivity.
Ultimately the court determined that there was nothing in the EA that could constitute “quantified or detailed information” about the cumulative effects of the project. This meant that the EA created substantial questions about whether the Project would have a cumulatively significant environmental impact, requiring an EIS.
Conclusion and Implications
Reviewing the case de novo, the Ninth Circuit’s decision highlights the importance for agencies preparing Environmental Assessments of performing full and defensible analyses that takes a hard look at a project’s potential environmental impacts before determining that an EIS is not necessary. This is especially true where controversy surrounds such projects.
