The U.S. Supreme Court unanimously ruled that a law used to review proposed projects is a “procedural cross-check, not a substantive roadblock,” thus speeding up the process for the creation of highways, railroads and possibly forest management work.
The case was an appeal of a lower court ruling that halted the proposed construction of an eastern Utah railroad line to carry crude oil from the remote region to a refinery.
At issue is the National Environmental Policy Act (NEPA), a procedural law created in 1970 that calls for the evaluation of environmental impacts on proposed actions by federal agencies. NEPA reviews may also benefit animals by requiring developments to consider impacts on wildlife species. Unfortunately, such reviews, in their current state, often drag on and stymie habitat work, particularly forest management projects.
According to Property and Environment Research Center research, planned projects like forest thinning and prescribed burns take anywhere from 2.9 to 7.2 years to begin because of the stringent review. By the time they are implemented, if approved at all, the window to improve forest and habitat health is often negatively affected or bypassed altogether.
For decades, some environmental organizations filed increasingly broad lawsuits to delay and stop projects on federal land. And as lower courts allowed these suits to proceed, the result is longer environmental reviews and more time in court.
“This new Supreme Court ruling agrees with our contention that opponents have used the courts to improperly hold up projects. That is bad news for the health of our forests and the wildlife that relies on them,” said Blake Henning, Rocky Mountain Elk Foundation chief conservation officer. “We are optimistic that the NEPA ruling and the pending Fix Our Forest Act (FOFA) will get federal forest management efforts back on track.”
FOFA has strong bipartisan support. House lawmakers already passed it, and the Senate is expected to debate it shortly.
RMEF is trying to reduce NEPA delays for forest projects by expanding the size of projects considered to have no significant impact from receiving more stringent review.
The Supreme Court also called on lower courts to restore NEPA to its original legislative intent.
“Some courts have strayed and not applied NEPA with the level of deference demanded by the statutory text and this Court’s cases,” the Supreme Court wrote in its ruling. “Those decisions have instead engaged in overly intrusive (and unpredictable) review in NEPA cases. Those rulings have slowed down or blocked many projects and, in turn, caused litigation-averse agencies to take ever more time and to prepare ever longer EISs for future projects. The upshot: NEPA has transformed from a modest procedural requirement into a blunt and haphazard tool employed by project opponents (who may not always be entirely motivated by concern for the environment) to try to stop or at least slow down new infrastructure and construction projects. A 1970 legislative acorn has grown over the years into a judicial oak that has hindered infrastructure development “under the guise” of just a little more process.”
RMEF is a longtime advocate of active forest management and agrees with managers and scientists that prescribed burns, thinning and other treatments enhance habitat for elk, mule deer, moose, turkey, pronghorn antelope, mountain lions, black bears and many other species while also reducing the risk of high intensity fires and improving overall forest health. It relies on and works with the U.S. Forest Service, Bureau of Land Management and other partners to implement such projects.
“The goal of the law is to inform agency decision-making, not to paralyze it,” the Supreme Court stated.
(Photo credit: Rocky Mountain Elk Foundation)