Judge strikes down Forest Service logging loophole
Monique Merrill
PORTLAND, Ore. (CN) — In a win for conservation groups, a federal judge blocked the U.S. Forest Service from relying on a decades-old exemption to approve large logging projects without environmental review.
A trio of environmental groups — Oregon Wild, WildEarth Guardians and GO Alliance — sued the Forest Service in 2022, accusing it of failing to determine whether applying categorical exclusion 6 — an exemption meant for small, low-impact activities intended to reduce fire hazard, also known as CE-6 — to approve three large-scale commercial thinning projects would have no significant impact.
U.S. District Judge Michael McShane initially found the claim to be time-barred, but the Ninth Circuit disagreed and sent the challenge back to the lower court.
The conservation groups described the application of the exclusion as a “bureaucratic loophole” that authorizes massive commercial logging projects and sidesteps environmental analysis and public comment.
McShane agreed, vacating the exclusion in a ruling released late Tuesday. The Barack Obama appointee explained that leaving the exclusion in place would allow the Forest Service to approve commercial thinning based on a policy that was “illegally promulgated.”
“The Forest Service’s error here was as much a failure to put forth a reason as it was an error of reasoning,” the judge wrote.
WildEarth Guardians attorney Erin Hogan-Freemole celebrated the decision.
“This ruling delivers a tremendous victory for forests and communities across the country,” Hogan-Freemole said in a statement. “The Forest Service can no longer disregard environmental impacts simply because Trump ordered the agency to ramp up logging on the public’s forests.”
Under the National Environmental Policy Act, federal agencies are required to conduct environmental analyses before initiating projects that may impact the environment. This means an agency must prepare an environmental impact statement, environmental assessment or apply a categorical exclusion.
Categorical exclusions can only be applied to actions that don’t have a significant effect on the environment. At issue in this case is an exclusion from 1992 that allows for the authorization of timber projects so long as they don’t involve the use of herbicides or require more than one mile of road construction.
The conservation groups argued that since the exclusion doesn’t limit project size, the Forest Service can use it to authorize large-scale commercial timber projects without a barrier.
The federal defendants countered that exclusion was based on the Forest Service’s experience applying National Environmental Policy Act procedures and project monitoring, but McShane noted that they didn’t identify the evidence to which the agency applied its expertise.
“They instead provide only conclusory statements that merely recite the definition of a CE,” McShane wrote. “This is inadequate; though an agency’s decision that implicates its substantive expertise deserves deference, an agency’s bare assertion that its decision is informed by its experience and expertise is not a substitute for explaining the basis of its decision.”
An attorney for the conservation groups said the ruling exposed the flaws in the Forest Service’s legal justification.
“The Forest Service’s defense of CE-6 was a house of cards,” Oliver Stiefel, attorney with Crag Law Center, said in a statement. “There is — and never has been — any legal basis for the agency to use a regulation intended for small, innocuous projects for massive commercial logging projects instead.”
McShane also blocked three challenged logging projects. The projects at issue involve the commercial thinning and prescribed burning of 29,000 acres within the Fremont-Winema National Forest in southern Oregon, a dry region of the state that is prone to wildfires. In 2021, for example, the forest experienced one of the largest wildfires in Oregon’s history that burned over 413,000 acres.
The conservation groups and stakeholders noted that the court’s decision doesn’t impact wildfire risk reduction. Ralph Bloemers, director of Fire Safe Communities, said thinning, fuel breaks and previously treated forests haven’t prevented the most destructive fires in the region. Those fires were “wind-driven ember storms that ignited homes and turned neighborhoods into fuel,” Bloemers said in a statement.
“The court’s ruling forces agencies to prove what they claim, analyze what they authorize and stop treating communities as collateral damage in a logging strategy that will not save them,” Bloemers said.
While McShane set aside the exclusion for any future Forest Service project approvals, he noted the order doesn’t affect existing timber contracts and that the agency may proceed with projects using proper environmental review.
The Forest Service did not respond to a request for comment before press time.