In September 2017, a U.S. district judge responded to a petition filed by the state of Alaska, and backed by about 20 stakeholders, to have the Roadless Area Conservation Rule—better known as the Roadless Rule—issued in 2001 by the U.S. Department of Agriculture and its agency, the U.S. Forest Service (USDA/USFS), declared in violation of the National Environmental Policy Act (NEPA) and seven other federal laws. The judge found that the petition failed on all counts.
“I find that the plaintiff has not shown that the USDA violated any federal statute in promulgating the Roadless Rule,” Judge Richard Leon for the U.S. District Court for the District of Columbia flatly stated.
Issued in the final days of the Clinton administration, the Roadless Rule prohibits—with limited exceptions—road construction and logging on 58.5 million acres of national forests. The rule was subsequently challenged and defended and alternately invalidated and reinstated in multiple court cases. Alaska’s participation in the litigation primarily focuses on inclusion of the state’s 9.5-million-acre Tongass National Forest, the nation’s largest, in the roadless prohibition. The office of Alaska Governor Bill Walker has yet to comment on the district court’s ruling. However, Senator Lisa Murkowski (R-AK) promptly lamented continuation of the Roadless Rule.
“The rule has decimated our timber industry and serves mainly to prevent the access needed to construct everything from roads and power lines to energy and mining projects,” said Murkowski.
But the handful of environmental and conservation groups that stood beside the USDA/USFS in defending the rule see the judge’s opinion as a critical defense of public land even as the Trump administration appears determined to methodically promote the use of these lands for economic growth.
“Today’s decision provides a critical affirmation of the importance of the Roadless Rule in protecting our nation’s and the state of Alaska’s most essential intact habitat and forested lands,” said Meredith Trainor, executive director of the Southeast Alaska Conservation Council. “This precedent-setting decision should remind all Americans of the importance of protecting our public lands from attacks by industry groups seeking to undermine our most fundamental and cherished environmental protections.”
A NEPA challenge
As is often true with litigation over federal rules involving public land, the case mainly revolves around whether or not the USDA/USFS complied with requirements of NEPA. Under NEPA, federal agencies must fully consider the environmental effects of their proposed actions in environmental reviews, in this case a Final Environmental Impact Statement (FEIS). Importantly, NEPA does not mandate particular results of environmental review; rather, agencies are required to take a “hard look” at the consequences of proposed actions. Ultimately, the final action must be fully informed and well considered; the action does not necessarily have to be the “best decision.”
Alaska alleged that the USDA/USFS’s FEIS for the Roadless Rule violated NEPA in both general and specific ways. We summarize the main contentions below, along with Leon’s responses.
Purpose and need
Alaska asserted that the fundamental objective of the Roadless Rule—to stop the loss of forested areas to roadbuilding—would not be achieved because without the rule, unroaded national forestland would increase by at least 8.4 million acres over the next 40 years because of road decommissioning. The reasoning underlying this contention is that all areas without roads are of equal value.
The USDA/USFS responded that this missed the point because areas that would be lost to new roadbuilding served a higher environmental purpose—mainly provision of drinking water and protection of more than 220 species listed under the Endangered Species Act. Leon agreed.
Alaska argued that in the FEIS, the USDA/USFS intentionally withheld the fact that other rulemakings related to USFS roads would create more than 8 million acres of new unroaded national forest in the future.
Leon disagreed, stating that the FEIS contains an extensive review of the cumulative effects of the Roadless Rule and the federal Roads Policy. “For example, the FEIS makes clear that the decommissioning of roads under the Roads Policy—along with the ongoing trend of building fewer roads would likely result in a reduction of the existing road system from 386,000 to between 260,000 and 300,000 miles by 2040,” the judge states. “As such, this Court finds no evidence that the USDA intentionally misled the public as plaintiff suggests.”
Next, Alaska contended the speed with which the USDA/USFS completed the Roadless Rule was evidence that the USDA/USFS failed to gather informed public comment and, thus, could not have made an informed decision, in violation of NEPA.
“Indeed, the fact that the USDA issued a rule affecting a whopping 2 percent of all land in the United States in less than 15 months is alarming, especially in light of the crawling pace at which administrative agencies typically conduct their business,” wrote Leon. “But upon further review of the record herein, I find that the USDA complied with NEPA in conducting its public comment and decisionmaking [sic] process.”
For example, Alaska contended that the USDA/USFS neither granted Alaska’s request to participate in the rulemaking nor agreed to requests by state and local government to extend the comment period for the rule. Leon simply responded that NEPA does not require a federal agency to grant either of those requests.
Alaska argued that the draft EIS, the document on which the public was given an opportunity to comment, was so significantly different from the FEIS that the USDA/USFS were required to issue a draft supplemental EIS so that the public could be afforded a second opportunity to offer comments. The bases for this contention is that the FEIS identified about 7 million additional acres that would be subject to the rule and that the USDA/USFS changed their proposed alternative from exempting the Tongass to not exempting the Tongass.
Leon responded that in the draft EIS, the USDA/USFS made it clear that that before issuing the FEIS, the agencies may adjust maps of forest and grasslands that were currently undergoing assessments, and the total acreage of land subject to the Roadless Rule could change. According to the judge, the added land shared the same ecological characteristics as those evaluated in the draft EIS and, therefore, were still “qualitatively within the spectrum of alternatives discussed in the draft.”
Alaska asserted that the USDA/USFS and the Roadless Rule also went astray of the Regulatory Flexibility Act, the Tongass Timber Reform Act, the Organic Administrative Act, and the Alaska National Interest Lands Conservation Act, among other federal laws. Leon found none of these arguments persuasive.
Leon’s opinion is here.