The National Environmental Policy Act, or NEPA, is the environmental bill of rights for the public, who are the legal owners of our national forests. It’s the framework in which we consider the risks and benefits of forest management projects, and attempt to avoid damaging outcomes or even environmental disasters. In the past, NEPA required More
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Carson National Forest Photo: US Forest Service.
The National Environmental Policy Act, or NEPA, is the environmental bill of rights for the public, who are the legal owners of our national forests. It’s the framework in which we consider the risks and benefits of forest management projects, and attempt to avoid damaging outcomes or even environmental disasters. In the past, NEPA required that we “look before we leap,” but more and more, the Forest Service is leaping before it looks during the planning and implementation of fuels reduction projects. Often, the results are severe ecological damage, and even increased fire risk. Section 40807 of the Infrastructure Investment and Jobs Act, ”Emergency Actions,” is perhaps the final stage of the long dismantling of our NEPA rights to protect our forests.
Section 40807 authorizes the Forest Service to take “emergency actions” when an immediate response is necessary to address forest-related “emergency situations.” Emergency situation guidelines were originally legislated in the Healthy Forest Restoration Act of 2003, and according to both Acts, emergency actions may be taken by the agency for relief from hazards threatening human health and safety, and for mitigation of threats to natural resources on National Forest System land or adjacent land. It is left up to the Forest Service to decide if and when an emergency situation exists on national forest land, and to choose from a list of responses which includes the removal of “hazardous fuels.” The Forest Service has recently been using emergency authority to approve and implement large-scale and aggressive commercial logging and prescribed burning projects. Such authority, which is reasonable for genuine emergencies, has been greatly expanded by the agency to the extent that the public has virtually no rights in relation to project planning.
After the Forest Service proposes a project designated as an “authorized emergency action,” it is only required to analyze two alternatives: Action (do the project) and No Action (don’t do the project) – instead of a range of alternatives, including a conservation alternative. The objection process is not allowed, and courts are directed not to issue an injunction on an authorized emergency action unless the court determines that the plaintiff’s case is likely to succeed on its merits.
The Infrastructure Act includes 3.5 billion dollars of funding for “wildfire management,” and to implement the law, the Forest Service issued its Wildfire Crisis Strategy, which currently contains 21 “priority landscapes” and 250 “high-risk firesheds” across the west that are considered to be in potential emergency situations requiring emergency actions. These landscapes were designated by the Secretary of Agriculture with no NEPA process whatsoever. With additional funds from the Inflation Reduction Act, the Forest Service has stated its current goal is to implement treatments in 134 of the designated high-risk firesheds, amounting to 45 million acres. So far, almost a million acres of vegetation treatments have been either approved or proposed under authorized emergency action.
The Infrastructure Act was signed into law almost three years ago, in 2021. What has brought Section 40807 into my focus recently was my receipt of yet another Forest Service notice for a large-scale northern New Mexico forest tree cutting and prescribed burning project – the Taos Canyon Forest and Watershed Restoration Project. This 83,000 acre project area is just southeast of Taos, New Mexico, in the Carson National Forest.
Much of the forested landscape of northern New Mexico is within either the “priority landscapes,” or “high-risk firesheds,” meaning that the Forest Service has given itself the potential of authorizing emergency authority over almost any northern New Mexico vegetation management project.
I was stunned to read that the Taos Canyon Project was largely an aggressive commercial logging project (54,731 acres are proposed to be logged or cut), with no diameter limits for sizes of trees to be cut, no indication of how many board feet of lumber may be taken, no specifications of which species may be cut, 600 acres of logging landings, and logging on very steep slopes up to a 75% grade. Steep slope logging has not been done for decades in northern New Mexico because it is so severely damaging to dry forest floors and to overall forest ecology. The Forest Service plans to burn the entire project area, even vegetation types that have historically received only infrequent fire. And they intend to proceed with this project as an authorized emergency action. This “emergency action” will take over 10 years, even though Section 40807 states that an “emergency situation” means a situation on National Forest land for which immediate implementation of authorized emergency action is necessary.
The Taos Canyon Project Scoping Notice states that “past logging focused on the largest, merchantable pine, fir, and spruce trees” have changed stand conditions so that they have become denser than they were historically, which has caused a decline in forest health and increased fire hazard. So the answer that is provided to this dilemma is – much more logging of large and merchantable trees! A local resident who went to a Forest Service open house concerning the project was told that the intention is to revamp the logging industry in the area, including bringing in out-of-state logging contractors if necessary.
Since the 1990s, most Forest Service projects in northern New Mexico have been primarily thin-from-below projects, meaning mostly focused on the removal of smaller trees, although larger trees also get removed. Such projects are proposed with diameter limits on the size of trees that can be cut, and conservation organizations then normally strive to reduce the diameter limits to conserve the large fire-resistant trees, and to reduce the total amount of trees to be cut so the ecosystem does not dry out from the tree canopy being overly open. They advocate for projects to be carried out in ways that maintain or even improve the ecological integrity of forests, instead of decimating the structure and function of forests so they turn into human-conceived parodies of their former state. As damaging as thin-from-below can be when implemented in overly aggressive ways, the aggressiveness of what the Forest Service is now proposing for the Taos Canyon Project is on an entirely different level, almost unimaginable in a warming climate.
This project is a regression into the forest management dark ages, from which conservationists have spent years trying to move forward into a more enlightened state, with at least limited success. Section 40807 has provided the cover for the Forest Service to go as far as they choose in managing forests with aggressive and widespread extraction of trees, leaving behind eroded and compacted forest floors, decimated understories, sediment in waterways, degraded wildlife habitat and even more ecologically damaging forest roads.
This proposal can only be understood as the Forest Service taking full and outrageous advantage of the emergency power conferred upon the agency by Congress through Section 40807.
Given that Congress confers this “emergency action” authority onto an agency that has clearly gone far astray from its legitimate mission, we, the true owners of the national forests of this country, are in a bind. What can we do? We can try to challenge clearly ecologically damaging Forest Service projects, but when they are proposed and implemented as authorized emergency actions, challenges can be very difficult. It’s time for a forest revolution. The Forest Service has tacitly proclaimed through this abuse of authorized emergency action that they will provide a cynical facsimile of NEPA analysis that sacrifices the ecological integrity of our forests, and that the public has no choice but to accept it. The NEPA tenet of “Look before you leap” has turned into “leap right off the ecological cliff,” without a rational risk/benefit analysis of what we are doing and what the consequences may be.
For a forest revolution to succeed we do not have to riot in the streets, we can do it with our minds, voices, keyboards, and votes. But it must be powerful and swift. And hopefully we can also find a way to defend our forests and communities in the courts. I see two possible outcomes. The first is that the Forest Service’s almost complete control of forest project planning leads to such devastation in our forests and communities that eventually everyone sees we must change course. The second is that citizens rise up and tell those in positions of power – those who have been involved in this abrogation of our legitimate rights to genuinely participate in planning for our forests – that they must correct the course now so we can protect our forests.
What do we need to make happen?
+ The Forest Service must be required to reasonably explain which emergency situations exist for each project they analyze as an “authorized emergency action,” based on a full range of the best available science.
+ The Forest Service must prepare a programmatic environmental impact statement for the Wildfire Crisis Strategy, as it is a forest management program concerning “multiple actions such as several similar/connected projects in a region.”
+ There must be congressional oversight hearings about how the Forest Service has been abusing its authority under Section 40807, and how it is generally spending its wildfire management dollars.
+ Congress must amend Section 40807 of the Infrastructure Act so that a valid and meaningful NEPA process can take place for all federal land management projects.
Map of Enchanted Circle Priority Landscape, “High Risk Firesheds” and the Taos Canyon Project Area. Map overlay by Jonathan Glass, Public Journal. Source data: US Forest Service.
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