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WASHINGTON - September 9 - Cloaked in a mantle of "wildfire prevention," legislation proposed by the White House on September 5, 2002, attempts to eviscerate key environmental and public participation laws that apply to the management of federal public lands. However, only the first of the four sections, flawed as it is, is specific to forest fire prevention. Among other things, this section seeks to eliminate the application of the National Environmental Policy Act and to interfere with, or flatly prohibit judicial review. The other three sections attempt fundamental changes in existing law by authorizing a new timber industry handout called "stewardship contracting," eliminating the Forest Service appeal process established under the Appeals Reform Act of 1993, and even attempting to limit the authority of the federal courts to enjoin activities found to be illegal. Together, the Bush Administration's "Healthy Forests" proposals constitute a radical revision of public lands law as it presently exists and provide an unprecedented opportunity for timber companies to gain access to federal timber, free of public scrutiny and legal restraints.
Lawless Logging
Section 1. Emergency Hazardous Fuels Reduction Plan
This section would apply to Forest Service and BLM projects "to reduce hazardous fuels" in any "fire risk condition class three area" except congressionally designated Wilderness. By its terms it would also apply to national parks and national wildlife refuges.
Section 1 seeks to exempt all projects "to reduce hazardous fuels" from the National Environmental Policy Act. Sec. 1(a). NEPA is the fundamental environmental law for all federal agencies, requiring that they look before they leap (or cut) by gathering information and analyzing the potential impacts of their decisions and actions on wildlife, water quality and the environment. It also requires the agency to consider alternative courses of action, to disclose the information and alternatives to the public through environmental assessments and impact statements, and to take into consideration comments from the public, state and local governments, Indian tribes and other federal agencies. Without an enforceable NEPA, the agency need not (and, based on our experience with the 1995 salvage rider), will not consider environmental impacts, alternatives, or the views of the public.
There is no effective limit on the land area potentially subject to this section. Although the bill states that no more than 10 million acres will be "treated," it also provides that the agency may "treat" even more acres if the agency first classifies them as high fire risk areas. Sec. 1(c)(1), -(2).
Section 1 directs the secretaries of Agriculture and the Interior to develop a "collaborative process" with "interested parties" but exempts this process from the Federal Advisory Committee Act and from any court challenges. Sec. 1(d)(1), -(f)(2). This would insulate both departments from FACA's requirement that there be a balanced representation of a variety of interests in such collaborative processes and from FACA's public disclosure requirements.
This section also requires the departments to develop expedited consultation procedures for threatened and endangered species under the Endangered Species Act. Sec. 1(d)(2). This is likely to result in hastier reviews based on less complete data and fewer opinions and to increase the chances that timber sales will not adequately protect imperiled species. Further, these expedited consultation procedures, no matter how deficient, would be exempt from judicial review. Sec. 1(f)(2).
The section would exempt all fuel reduction timber sales from the right of administrative appeal. Sec. 1(e). Administrative appeals provide members of the public with a short, efficient, and even lawyer-free means to get upper level agency officials to review agency decisions. They have been effective in ensuring that agency opinions comply with the law and reflect public policy. In fact, they have frequently resulted in an agency's making important modifications to, or completely withdrawing, illegal decisions and thereby eliminating the need and expense of formal court proceedings.
Of great concern in Section 1 is the provision that attempts to prohibit federal courts from entering temporary restraining orders (TROs) or preliminary injunctions. Sec. 1(f)(1)(C). TROs and preliminary injunctions are orders traditionally within the power of the courts to prevent irreparable harm while a lawsuit is pending, e.g., an order that trees not be cut until the legality of the authorizing decision is determined. They are available only if the person bringing the lawsuit can show a likelihood of prevailing and that the action, if taken, is for all practical purposes irreversible. If courts
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