Fight over environmental review by Forest Service continues in courts
Despite NEPA revisions in Washington, controversial Forest Service regulations remain in force
The Mount Rogers National Recreation Area is in the Jefferson National Forest. (U.S. Forest Service)
Even as President Joe Biden’s administration restores key components of a landmark environmental law altered under former President Donald Trump, controversial regulations governing environmental review of certain activities, like logging, in national forests will remain in place.
Following 2020 revisions by Trump to the National Environmental Policy Act — sometimes called the Magna Carta of federal environmental law — the U.S. Forest Service made a variety of changes to its own NEPA regulations, citing a desire to increase “the efficiency of environmental analysis.”
NEPA requires the federal government to analyze the environmental impacts of major projects and allow the public to weigh in on its decision-making. If a project isn’t expected to have a significant environmental impact, it can be granted a categorical exclusion, which exempts it from undergoing a detailed environmental review.
Among several Forest Service changes to its NEPA regulations was the expansion of a categorical exclusion to forest management activities including logging in national forests that disturb up to 2,800 acres and have “a primary purpose of meeting restoration objectives or increasing resilience.”
A broad coalition of Appalachian environmental groups, including four Virginia organizations, subsequently sued the agency, saying the new exclusions would “cause significant harm to publicly owned national forests across the country and to members of the public who use those lands.”
In Wild Virginia et al v. Council on Environmental Quality et al, the coalition argued that because logging in the Appalachian region tends to occur on a smaller scale than in western forests, the change would effectively mean that no logging project in Virginia, Tennessee, North Carolina or Georgia national forest would require a detailed environmental review.
In June 2021, U.S. District Judge James Jones in Charlottesville ruled that the case was “not appropriate for judicial resolution” because the potential outcomes of the regulatory change were too “speculative” and the groups lacked standing.
Among the factors Jones considered were the Biden administration’s plans to reconsider the Trump-era NEPA revisions in a new rulemaking.
That rulemaking, the first phase of which was finalized last week, did not include any provisions that would roll back the Forest Service’s 2020 changes.
“The Forest Service’s NEPA regulations remain in effect, including the categorical exclusions established in 2020,” said Wade Muehlhof, deputy national press officer for the U.S. Forest Service, in an email.
The Biden rulemaking “is not resolving the problem,” said Sam Evans, a senior attorney with the Southern Environmental Law Center who is helping represent the environmental coalition in the Wild Virginia case.
The federal government “could have restored the bar to where it was prior to the Trump administration, but they declined to do that,” he said.
Litigation on the issue continues: the environmental coalition last summer appealed Jones’ decision to the Richmond-based 4th Circuit Court of Appeals, where the case is ongoing.
Muehlhof says the Forest Service does not comment on ongoing litigation.
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