About a year ago, the Department of Agriculture (“USDA”) issued a final rule establishing a new and exclusive process for filing objections to certain proposed National Forest Service (“NFS”) projects and activities (78 Fed. Reg. 18,481 (Mar. 27, 2013)). The new procedure is prescribed in 36 CFR Part 218. The affected projects and activities consist of the decisions implementing land management plans and documented with a Record of Decision (“ROD”) or Decision Notice (“DN”). The new procedure provides for the resolution of objections prior to the NFS making a final decision. The old procedure, based on the Appeal Reform Act, provides for a post-decisional administrative appeal process.
The new procedure applies to NFS project proposals that are beyond the scoping stage (e.g., those “which have legal notice published [as of March 27, 2013]”) but will not have a signed ROD until after September 26, 2013. NFS has now begun taking the position that the new process applies to specific projects, meaning that ROD’s issued at the conclusion of a NEPA review are not subject to administrative review.
Under the new procedure, objectors will have 45 days after legal notice of the Final Environmental Impact Statement (EIS) and draft ROD to file objections. The NFS is required to respond to all objections but will have only 45 calendar days plus one 30-day extension to do so. The Final EIS and ROD will become final soon after the NFS responds to objections. At this point, the administrative process for the EIS will be completed, but opponents may pursue judicial review.
When a NEPA process Final EIS differs from the Draft EIS in ways the participating public deems “significant” or when the Final EIS contains data, reports or studies not previously relied upon by the NFS in the Draft EIS, the draft ROD subsumes the risks associated with those issues. Simply put, the new process provides a basis for dozens of objections to the process itself as fundamentally unfair and not in keeping with the goals of NEPA. How will the NFS respond to these complaints? We will know for certain in the next few weeks as cases come to the end of the new NFS time limits.
For regulated industry, the balance between reasonable regulatory approval time frames and ensuring quality decision making sets up a tension that at the end of the day may lead to increased litigation. Increased litigation serves neither side of the balance. While time limits can be useful for moving regulatory processes along, there are unintended consequences. In an attempt to keep the process moving, the NFS may have inadvertently set up another issue for appeal. The new process poses a number of questions and introduces uncertainty that may not have been contemplated by placing limitation on the timing of the decisions. Given the time limits, what is an acceptable level of change from draft to final reports? How much more work can the NFS do after the draft? Should NFS be limited in its ability to make changes based on comments to a draft because making changes will invoke an new issue for appeal? For those involved in this and other regulatory processes in which time limits are imposed the final decisions here by NFS and perhaps a court will have far reaching implications.