Alternatives on a Budget. . .

When a Land Swap Will Mean Logging

Judge Bell of the Western District of Michigan rejected a NEPA challenge to a proposed Forest Service land swap in the Ottawa National Forest Tuesday.  The case, Partners in Forestry Coop. v. U.S. Forest Serv., No. 2:12-CV-184, involved challenges by a local affinity group asserting that the Service: [1]  failed to prepare a required EIS (instead of the EA/FONSI it prepared); [2]  failed to analyze an adequate range of alternatives; [3] failed to disclose or analyze relevant information about projected impacts; and [4] failed to prepare a supplemental analysis when new information arose.  Other than claim [2], the plaintiffs didn’t have much to go on.

The land swap here was, like many by the Forest Service, aimed at consolidating a rather patchwork portfolio in places where the inter-mixture of public and private authority can be tricky.  The parcel to be acquired was 421 acres adjacent to a natural area’s boundary and the five to be conveyed totaled 240 acres.  The owners of the parcel the Service wanted to acquire were aiming to log the parcels they would acquire.  So what the Service had to bargain with was a substantial stock of valuable–mature–hardwoods.   The affinity groups viewed the exchange as assuring the destruction of a beloved spot close to several towns in the vicinity.  People hiked there and enjoyed the waterfalls and the relatively mature trees and canopy.  The Service saw a comparatively small volume of mature hardwoods (compared to what’s already found in the Ottawa NF) and knows the costs of intermixed ownership all too well.

The alternatives considered were shaped in large part by what bargain the private party would and wouldn’t strike.  Enter the NEPA alternatives requirement–and the Sixth Circuit’s highly deferential approach.  In Save Our Cumberland Mtns v. Kempthorne, 453 F.3d 334, 342-43 (6th Cir. 2006), the court of appeals held that an agency’s confining of the alternatives it considers in a NEPA routine is mostly a matter of that agency’s informed discretion.  In particular, the Sixth Circuit seemed to suggest that alternatives analyses in EAs were always likely to be more cursory:

[A]n agency has fewer reasons to consider alternatives when it prepares an environmental assessment as opposed to when it prepares an environmental impact statement. For in permissibly preparing an environmental assessment alone, the agency has determined that the proposed project will have minimal environmental consequences, and accordingly its duty to consider environment-friendly alternatives is less pressing than when it issues an environmental impact statement.

453 F.3d at 342.

When your regional circuit has said that “it makes little sense to fault an agency for failing to consider more environmentally sound alternatives to a project which it has properly determined, through its decision not to file an impact statement, will have no significant environmental effects anyway,” id. at 343 (quoting Sierra Club v.  Espy, 38 F.3d 792, 803 (5th Cir. 1994), you know you’re fighting an uphill battle.

Judge Bell found the Service’s reasoning for framing the parcel trade alternatives as it did convincing–or at least not arbitrary enough to merit any relief.  Other than its citation of the APA as the Administrative Procedures Act (a terrible pet peeve of mine: it’s Procedure!!), the opinion is precise and careful.

I teach environmental, natural resources, and administrative law at Penn State Law. Before teaching I was an enforcement lawyer at U.S. EPA. Along the way I've done work for environmental nonprofits and written a fair bit about NEPA.
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