By Cori M. Badgley

In League of Wilderness Defenders-Blue Mountains Biodiversity Project v. Allen 615 F.3d 1122; 2010 U.S. App. LEXIS 16770; 40 ELR 20224, the Ninth Circuit Court of Appeals focused on two well-known principles of NEPA review: 1) cumulative impacts may be evaluated using an aggregate effects approach; and 2) an agency is only required to adequately acknowledge and respond to comments raised by opposing parties, including opposing expert analysis.

The underlying action at issue involved the Five Buttes Project designed and approved by the U.S. Forest Service. This project provided a management and treatment plan for the Five Buttes region of the National Forest System lands, the purpose of which was “to accelerate the development of large trees and [Northern Spotted Owl nesting, roosting and foraging] NRF habitat to promote the objectives of the Davis [late successional reserve] LSR.” A portion of the project authorizes commercial logging activities in certain NRF habitat areas in order to reduce the potential of wildfires to spread uncontrollably, resulting in catastrophic forest fires. The size, number and types of trees that may be logged differ depending on whether it is a home range area. The project avoids the home range areas to the extent possible, and most of the logging is focused in the non-home range areas.

Various conservation groups brought suit challenging approval of the project. Among other allegations, petitioners alleged that the environmental impact statement (“EIS”) violated the National Environmental Policy Act (“NEPA”) for two reasons: the cumulative impacts analysis did not consider specific past projects; and the EIS did not respond adequately to opposing expert analysis regarding logging and the prevention of catastrophic fires. The district court found in favor of petitioners on these issues, and the U.S. Forest Service appealed.

On appeal, the Ninth Circuit reversed the district court’s ruling on the NEPA issues. First, the Ninth Circuit found that the EIS adequately analyzed the cumulative impacts of the project. The EIS used what is known as the aggregate effects approach in analyzing cumulative impacts.  This approach discusses the combined impacts of past projects as a whole, instead of listing out specific projects. Contrary to petitioners’ assertion and the district court’s ruling, it is not erroneous for an agency to use an aggregate effects approach instead of using a list of specific projects with information on their locations and dates of implementation. The court also cited to 23 pages in the EIS devoted to discussing declines, trends and threats to the spotted owl population and habitat, which according to the court, provided an adequate cumulative impacts analysis.

Second, the Ninth Circuit found that the EIS adequately responded to opposing expert analysis on the correlation between logging and fire prevention. According to the court, the EIS “addressed each of the Conservation Group’s suggestions and concerns, even conducting additional modeling to determine if thinning only smaller trees might be feasible.” There was no need for the Forest Service to provide any more detail in its rebuttal to the comments.

Because the cumulative impact analysis and the responses to comments were adequate, the court upheld the EIS.

Cori M. Badgley is an associate at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.