By Glen C. Hansen
In a 2-1 decision in Pacific Rivers Council v. United States Forest Service, ___ F.3d ___, 2012 U.S. App. LEXIS 12553 (9th Cir. 2012), rehearing and en banc rehearing denied, the Court of Appeals for the Ninth Circuit held that the final supplemental environmental impact statement issued by the United States Forest Service in 2004 for the eleven Forest Plans for the Sierra Nevada Mountains (“Forest Plans”) complied with the National Environmental Protection Act (“NEPA”) as to the analysis of environmental consequences on amphibians, but did not comply with NEPA as to environmental impacts on fish. The majority and minority on the panel sharply disagree as to the amount of analysis that is required for programmatic environmental impact statements under NEPA in the Ninth Circuit where an agency has not made a critical commitment of resources regarding any site-specific projects.
In 2001, the United States Forest Service (“Forest Service”) adopted amendments to the Forest Plans (“2001 Framework”) based on a final environmental impact statement issued that year. In 2004, the Forest Service adopted further amendments to the Forest Plans (“2004 Framework”) based on a new and final supplemental environmental impact statement (“2004 EIS”). Plaintiff Pacific Rivers Council brought suit in federal district court challenging the 2004 Framework as inconsistent with NEPA on the ground that the 2004 EIS does not sufficiently analyze the environmental consequences of the 2004 Framework for fish and amphibians. The district court granted summary judgment to the Forest Service. The Ninth Circuit affirmed, in part, and reversed, in part.
The majority on the panel cited Kern v. Bureau of Land Management, 284 F.3d 1062, 1071, 1072 (9th Cir. 2002), for the rule that, “[o]nce an agency has an obligation to prepare an EIS, the scope of the analysis of environmental consequences in that EIS must be appropriate to the action in question. . . . If it is reasonably possible to analyze the environmental consequences in an EIS . . ., the agency is required to perform that analysis.” Again relying on Kern, the majority held that “NEPA requires that an EIS analyze environmental consequences of a proposed plan as soon as it is ‘reasonably possible’ to do so.”
Using that “reasonably possible” standard from Kern, the majority held that the 2004 EIS does not comply with NEPA with respect to fish. The court found that the 2004 Framework did not analyze fish like the 2001 Framework did:
The 2001 EIS contained a 64-page detailed analysis of environmental consequences of the 2001 Framework for individual species of fish. In stark contrast to the 2001 EIS, the 2004 EIS contains no analysis whatsoever of environmental consequences of the 2004 Framework for individual species of fish. The 2004 EIS incorporates by reference the analysis contained in the 2001 EIS, but contains no analysis of additional or different environmental consequences of the 2004 Framework even though the new framework authorizes substantially more environment-altering activities than the old framework. Of particular importance, the 2004 Framework allows an additional 4.9 billion board feet of green and salvage timber harvesting during the first two decades, much of it conducted nearer streams, compared to the 2001 Framework. The 2004 EIS also incorporates by reference two biological assessments ("BAs") of the consequences of the 2001 and 2004 Frameworks on listed fish under the Endangered Species Act. But it neither summarizes the findings of the BAs nor includes them in an appendix.
Thus, the majority held that the “2001 EIS shows that an analysis of environmental consequences of the 2004 Framework for individual species of fish was ‘reasonably possible.” The majority further stated that the Forest Service provided no explanation for its reasons for “entirely omitting any analysis of the impact of the 2004 Framework on individual species of fish.”
However, the majority did find that the Forest Service’s analysis of amphibians was sufficient at that stage of the process, given that site-specific projects were not yet at issue. In fact, the majority cited that analysis of amphibians as further evidence of what the Forest Service could have done at that same stage of the process for fish species.
The dissent argued that the majority disregarded Ninth Circuit precedent holding that an agency’s timing of analysis required by NEPA is not arbitrary and capricious if it is performed “before a critical commitment of resources occurs.” Here, the dissent found it dispositive that “the Forest Service has not made a critical commitment of resources regarding any site-specific projects.” The dissent argued that the majority “ignores the tiering framework created by NEPA” that “differentiates between a site-specific environmental impact statement (‘EIS’) and a programmatic EIS that focuses on high-level policy decisions” and “requires less detailed analysis than a site-specific EIS.” The dissent further argued that the “reasonable possible” rule in Kern is “a departure from our established precedent,” that Kern’s application of that rule to a programmatic EIS was essentially overruled in The Lands Council v. McNair (“Lands Council II”), 537 F.3d 981, 987 (9th Cir. 2008) en banc, and that Kern “does not support the proposition that a programmatic EIS must include any site-specific analysis as soon as reasonably possible if no critical commitments of resources have occurred.” The dissent believed that the majority’s comparison between the 2001 and 2004 frameworks was inappropriate because nowhere in NEPA or its regulation “is an agency required to provide a similar amount of analysis in the current EIS as was performed in a previous EIS,” and because “the 2001 Framework more easily lent itself to more extensive analysis up front” since the 2001 Framework “contained many more broad-based rules and clear-cut policies that made for easier identification of issues,” whereas the 2004 Framework “by design calls for a flexible approach based on specific conditions, and it leaves critical decisions to be made when site specific projects are identified.” Moreover, the dissent argued, “the Forest Service clearly did explain its reasons for deferring in depth analysis until more site-specific projects were identified.” (Emphasis in original.)
Because the Ninth Circuit denied a petition for rehearing and rehearing en banc, the “reasonable possible” rule applies to programmatic EISs in the Ninth Circuit. It remains to be seen if the practical result of the majority opinion in Pacific Rivers Council will create “an unclear rule based on ‘reasonable possibility,’” as the dissent warns.
Glen C. Hansen is Senior Counsel 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, or 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.