|
are stripped of their powers to issue TROs and preliminary injunctions, it is very likely that the trees in question will be cut before a court can hear and decide whether cutting them is legal.
In summary, several provisions of Section 1 seek to make it impossible, or nearly impossible, for citizens to effectively enforce any environmental laws once the Forest Service or BLM has characterized an area as presenting a high risk of fire and designated the logging or other activity to be a fire reduction strategy. First, it attempts to exempt such projects from our most fundamental environmental law, NEPA. Second, it provides an unreviewable "collaborative process" to approve these projects with no assurance of balance. Third, it provides for hastened and quite possibly inadequate procedures for protecting threatened and endangered species, procedures that are also not subject to judicial review. Fourth, it eliminates administrative appeals. Fifth, it attempts to preclude the courts from issuing orders needed to prevent the trees from being cut while a lawsuit brought on any remaining grounds is decided.
Finally, as discussed further below, the bill makes it much more difficult for citizens to obtain a judicial remedy, i.e., a permanent injunction, even if they overcome all other obstacles the bill imposes. Under Section 4 it attempts to force the courts to allow even an illegal sale to go forward if the agency is still of the view that it should.
A License to Steal
Section 2. Stewardship Contracting
Section 2 provides federal land management agencies with sweeping new authority to enter into long-term "goods-for-services" contracts with "private persons, or other public or private entities" to perform a wide array of services, all using timber or other forest products as the medium of payment. In other words, a logging company can keep the timber.
This section proposes to trade trees for almost any activity, as the proposed contracting authority would be available to achieve any "land management goals for the national forests and other Federal lands." Sec. 2(a). This contracting authority is not limited to fire prevention efforts or to lands presenting a high fire risk. Even the broad list of land management goals contained in Section 2(b) ("to promote healthy forests") is merely presented as a list of possible suggestions.
Section 2 would remove the normal requirement that timber corporations to pay for timber sales in dollars. Instead, they would "pay" by conducting road work, cutting trees, etc., on the assumption that such activities conferred a benefit on the public. The bill explicitly makes clear that the collection of money is secondary to obtaining such services. Federal agencies already lose vast sums of money on timber sales. This program would make the situation much more difficult and accountability almost impossible.
Similarly, Section 2 would remove the normal requirement that timber sales be awarded to the highest bidder. Instead, the agency could consider such fudgeable factors as "the quality and quantity of products to be removed" or any other "unit of measurement appropriate to the contracts," to be determined by the agency. Sec. 2(c)(3)(B).
As to any money the agency may actually collect under these contracts, Section 2 creates an off-budget slush fund for the agency. It authorizes the agency to spend the money with no further appropriations by Congress, removing the normal legislative oversight on agency spending. Sec. 2(d)(2)(A).
Congress has previously authorized a limited pilot program to test 84 "stewardship" projects, only five of which have been completed. Moreover, there are only 30 in any stage of planning or implementation. It would be reckless to provide the agencies this expansive new authority before we have even learned the lessons the pilot program is intended to test.
In summary, Section 2 holds out an irresistible temptation to timber companies to steal publicly owned timber. The value of the services will be inflated, assuming they are necessary at all, and the value of the timber will be underestimated. The proposal is similar to the controversial Purchaser Road Credit Program where the Forest Service was authorized to trade trees for the construction of logging roads needed by the timber industry to access timber sales. The PRC program is part of the reason the Forest Service ended up with over 386,000 miles of roads, including 294,000 miles of timber (logging) roads, in the first place. Congress eliminated this program in 1998.
|
|
