December 6, 2007
Ninth Circuit snuffs U.S. Forest Service's "Healthy Forest Initiative" rule
A three-judge panel of the Ninth Circuit Court of Appeals ruled in Sierra Club v. Bosworth that the U.S. Forest Service erred by engaging in certain fuel reduction and prescribed burn projects without analyzing the resulting environmental impacts as required by federal law.
The Sierra Club challenged a Forest Service rule (the "fuels exclusion") that exempted fuel reduction projects of limited acreage from environmental analysis. Under the National Environmental Policy Act (NEPA), federal agencies are required to analyze the environmental impacts of "major federal actions significantly affecting the quality of the human environment." 42 U.S.C.A. § 4332(2)(C).
In response to the Bush Administration's "Healthy Forests Initiative" announced in 2002, the Forest Service promulgated the fuels exclusion to exempt certain projects designed to reduce hazardous fuel conditions from NEPA procedures. The stated purpose of the Healthy Forests Initiative was to streamline the environmental analysis process for projects necessary to reduce the risk of catastrophic wildfire and "restore forest health." Under limited circumstances, a federal agency may avoid NEPA compliance by establishing a "categorical exclusion" for "actions which do not individually or cumulatively have a significant effect on the human environment..." 40 C.F.R. § 1508.4.
The Ninth Circuit Court of Appeals ruled that the Forest Service acted arbitrarily and capriciously by enacting the fuels exclusion, and remanded the case the district court with instructions that the court issue an appropriate injunction. Specifically, the Ninth Circuit held that the Forest Service failed to comply with NEPA and improperly relied on post-hoc reasoning to justify the fuels exclusion. The appellate court further held that the Forest Service failed to consider the cumulative impacts and the highly controversial and uncertain risks posed by the fuels reduction projects.