The Clinch Coal. v. The United States Forest Serv., 2:21-cv-0003-JPJ-PMS

CourtUnited States District Courts. 4th Circuit. United States District Court (Western District of Virginia)
Writing for the CourtPAMELA MEADE SARGENT UNITED STATES MAGISTRATE JUDGE
Decision Date06 December 2021
PartiesTHE CLINCH COALITION, et al., Plaintiffs, v. THE UNITED STATES FOREST SERVICE, et al., Federal Defendants, and AMERICAN LOGGERS COUNCIL, et al. Intervenor Defendants.
Docket Number2:21-cv-0003-JPJ-PMS

THE CLINCH COALITION, et al., Plaintiffs,
v.

THE UNITED STATES FOREST SERVICE, et al., Federal Defendants,

and AMERICAN LOGGERS COUNCIL, et al. Intervenor Defendants.

No. 2:21-cv-0003-JPJ-PMS

United States District Court, W.D. Virginia, Big Stone Gap Division

December 6, 2021


MEMORANDUM OPINION

PAMELA MEADE SARGENT UNITED STATES MAGISTRATE JUDGE

I. Background

The plaintiffs[1] bring this action pursuant to the judicial review provisions of the Administrative Procedure Act, (“APA”), 5 U.S.C. §§ 701-706, against the defendants. The plaintiffs seek certain declaratory and injunctive relief in connection with a final rule implemented by the United States Forest Service, [2] (“Forest Service”

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or “Agency”), as well as portions of the Council on Environmental Quality's, (“CEQ”), [3] National Environmental Policy Act, (“NEPA”), [4] regulations.

This matter is before the undersigned magistrate judge on the plaintiffs' Motion To Compel Completion Of The Administrative Record And Strike Nonrecord Material, (Docket Item No. 47) (“Motion”), on referral pursuant to 28 U.S.C. § 636(b)(1)(A). The defendants[5] have filed a response to the Motion, to which the plaintiffs have replied. None of the parties has sought a hearing on the Motion. Therefore, the Motion is ripe for disposition. According to the plaintiffs, defendant Forest Service failed to provide the complete administrative record, (“AR”), it considered in issuing the final rule at issue and included some materials that should be stricken from the record. The defendants oppose the Motion, arguing that the AR is complete. Based on the arguments and representations of counsel, and the evidence provided to the court, the Motion is granted in part and denied in part.

On November 19, 2020, the Forest Service finalized a rule for NEPA compliance, (“Final Rule”), with the stated goal of “increas[ing] the pace and scale of forest and grassland management operations on the ground, ” 84 Fed.Reg. 27, 544, 27, 550 (June 13, 2019), by “reduc[ing] costs and time spent on environmental

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analysis, ” 85 Fed.Reg. 73, 620, 73, 629 (Nov. 19, 2020). NEPA requires every federal agency action with significant environmental impacts to first be analyzed in an Environmental Impact Statement, (“EIS”), describing the project's impacts in detail and comparing them to the impacts of alternatives. See 42 U.S.C. § 4332(C). If the significance of the impacts is uncertain or if there are unresolved conflicts over alternative uses of agency resources, the agency may first prepare an abbreviated document known as an Environmental Assessment, (“EA”), which also describes impacts and alternatives. See 40 C.F.R. § 1501.5 (2020). The EA is used to determine whether preparation of a full EIS is necessary. Otherwise, an agency may issue a Finding of No. Significant Impact, (“FONSI”). See 40 C.F.R. § 1501.6 (2020). As part of the EA process, agencies often make changes to projects or commit to mitigation to avoid significant impacts and thereby avoid the need to prepare an EIS and enable them to justify their FONSI. An EIS or EA must be vetted by the public before a decision is made. Even for projects that ultimately are deemed to have no significant impact, and are authorized with an EA and FONSI, NEPA requires agencies to “study, develop, and describe appropriate alternatives” for “any proposal which involves unresolved conflicts concerning alternative uses of available resources.” 42 U.S.C. § 4332(E); 40 C.F.R. § 1501.5(c)(2) (requiring consideration of alternatives in EAs).

Site-specific Forest Service actions are subject to NEPA. See 36 C.F.R. § 220.4(a) (2020). The Forest Service may avoid preparing an EIS or EA only if its proposal falls within a categorical exclusion, (“CE”). See 36 C.F.R. § 220.7(a) (2020). CEs are intended for small, insignificant and routine actions that categorically do not have significant impacts no matter where they occur. Unlike projects authorized using an EIS or EA, CEs do not require that site-specific analysis

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of impacts be made available to the public for comment or that the agency consider alternatives. By creating or expanding CEs, an agency removes procedural safeguards from entire classes of action.

For decades, CEQ's NEPA regulations prohibited development of new CEs unless the CE-developing agency showed that covered actions would not “individually or cumulatively” cause significant impacts. 40 C.F.R. § 1508.4 (1978). Accordingly, CEs were limited to small, insignificant and routine actions. See Sierra Club v. Bosworth, 510 F.3d 1016, 1027 (9th Cir. 2007) (enjoining Forest Service from using CE). However, CEQ's 2020 revisions to its NEPA regulations, challenged in relevant part in this suit, purport to allow development of CEs for actions that do not “normally” cause significant impacts. 40 C.F.R. § 1508.1(d) (2020). CEQ's NEPA implementing regulations prohibit other agencies from adopting final procedures under NEPA without first offering both CEQ and the public an opportunity to review the draft procedures for conformity with CEQ's regulations. See 40 C.F.R. § 1507.3(b)(2) (2020). The plaintiffs claim that the Forest Service is entitled to no deference in its interpretation of NEPA. See United Keetoowah Band of Cherokee Indians in Okla. v. FCC, 933 F.3d 728, 738 (D.C. Cir. 2019) (finding no deference owed to FCC's interpretations of NEPA, which primarily was administered by CEQ).

On January 3, 2018, the Forest Service published an advance notice of proposed rulemaking related to its NEPA procedures, seeking, among other things, comment related to the development of new CEs. The Agency's stated goal was to “complete more projects” by “increasing efficiency of environmental analysis.” 83 Fed.Reg. 302 at 302 (Jan. 3, 2018). The plaintiffs offered two separate sets of

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comments on the notice. On December 21, 2018, the President ordered the Secretary of Agriculture to “develop[] and us[e] new categorical exclusions to implement active management of forests….” Executive Order 13855, 84 Fed.Reg. 45 at 47 (Dec. 21, 2018). On June 13, 2019, the Forest Service published its notice of proposed rulemaking, including several changes to its NEPA procedures, such as the creation or expansion of a number of CEs. See 84 Fed.Reg. 27, 544 (June 13, 2019). The Proposed Rule included a CE that would have allowed up to 4, 200 acres of logging, and, although it was styled as a “restoration” CE, see 84 Fed.Reg. at 27, 549, it would have allowed timber harvesting for any purpose, including commercial timber production. The CE also would have covered up to a half-mile of permanent road construction and 2.5 miles of temporary road construction to access timber. Another proposed CE would have authorized up to five miles of road construction for any purpose. See 84 Fed.Reg. at 27, 548. An existing CE for special-use permits was proposed to be expanded. The previous special-use CE allowed only “minor” special uses affecting up to five acres, but the proposed CE would have allowed any special use up to 20 acres. See 84 Fed.Reg. at 27, 547-48. The bulk of the Forest Service's analysis was based on past projects completed using an EA and FONSI. The Agency sampled 68 projects it considered relevant to the “restoration” CE, 55 projects related to the road management CE and 62 projects related to expansion of the special-use CE. The plaintiffs responded to the Proposed Rule during the allotted 60-day public comment period.

On January 10, 2020, five months after the opportunity for public comment on the Forest Service's Proposed Rule closed, CEQ issued its own proposed rule, overhauling the framework of NEPA regulations applicable to all agencies. See 85 Fed.Reg. 1, 684 (Jan. 10, 2020). CEQ's new rule was published on July 16, 2020,

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with an effective date of September 14, 2020. See 85 Fed.Reg. at 43, 304 (July 16, 2020). In addition to other changes, the CEQ rule changed the standard applicable to developing new CEs. Specifically, under prior law, a CE was defined as “a category of actions which do not individually or cumulatively have a significant effect on the human environment.” 40 C.F.R. § 1508.4 (1978) (emphasis added). Under CEQ's new rule, a CE is defined as “a category of actions that … normally do not have a significant effect on the human environment.” 40 C.F.R. § 1508.1(d) (2020) (emphasis added).

Thereafter, the Forest Service offered CEQ, but not the public, an opportunity to review its Proposed Rule for conformity with the applicable regulations under 40 C.F.R. § 1507.3(b)(2) (2020). The Final Rule was published on November 19, 2020, without further opportunity for public review. While this Final Rule finalized new and expanded CEs for logging, road construction and special uses, see Nat'l Envt'l Policy Act Compliance, 85 Fed.Reg. 73, 620 (Nov. 19, 2020), it abandoned some of the changes in the Proposed Rule “[i]n light of CEQ's revised regulations.” 85 Fed.Reg. at 73, 621. Relying on CEQ's new standard for creating new CEs, the Forest Service concluded that its new CEs would not “normally” cause significant impacts.

The new and expanded CEs in the Final Rule included: (1) a CE for commercial logging projects up to 2, 800 acres and construction of up to two and one-half miles of temporary logging roads, (“CE 25”);[6] (2) a CE covering up to two miles of permanent road construction for any purpose, (“CE 24”);[7] and (3) an

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expanded CE that allows “special use” authorization for private uses affecting up to 20 acres of national forest lands, including permanent impacts such as a four-mile right-of-way for a pipeline or other utility, (“CE 3”).[8] In a 72-page document dated October 23, 2020, prepared by the Forest Service in support of its Final Rule, it stated its conclusion was based on: (1) experience with past projects; (2) professional judgment; and (3) benchmarking to other agencies'...

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