News from the Front #69:  

NEPA Is Wounded In The House Of Its Guardians*

On Friday the 13th, December 2002, the United States Court of Appeals for the Ninth Circuit issued its opinion in Kootenai Tribe v. Veneman, reversing an Idaho federal district judge's injunction against the  "Roadless Rule".  This role, though proposed by the Clinton/Gore Administration, was actually postponed by the Bush Administration until May 12, 2001, so that as usual, the two wings of the same bird of prey share responsibility.  

Nevertheless, the Bush Administration did not appeal the district judge's injunction against the rule.  Under at least four prior decisions of the Ninth Circuit, that meant that no one could appeal the ruling.  But in those prior cases, environmentalists had won the injunctions, and people with a real stake in the outcome wanted to appeal.  In the Ninth Circuit, environmentalists are the High Priests to whom ordinary rules do not apply, and so they were permitted to appeal, notwithstanding the precedent.

A broad coalition of people actually affected by the Rule had obtained relief in the district court on account of violations of the National Environmental Policy Act (NEPA).  NEPA  is designed to require a full consideration of environmental impacts and alternatives in connection with "major federal actions", and imposes significant procedural requirements so that affected citizens have the opportunity to be heard before federal rules issue.  

The evidence in support of procedural violations was compelling, and summarized by the dissenting judge:

. . . in an action involving two percent of the land mass of this country, the Service allowed a mere 69 day public comment period.  The district judge made finding of fact that state maps of the affected area were not available until one month after the public comment period ended.  Many responses were received in the final week, and the Service did not deign to respond.  The documents offered to the public contained bizarre, Orwellian terms like "roaded roadless".  To top it all off, 4.2 million acres were added after the public comment period ended.

(Emphasis in original.)  As is customary in environmental rulemaking, the Forest Service dispatched operatives to public meetings who, in the words of the dissent, "were ill-prepared to answer the questions and concerns of the general public".  In short, the entire public process was a sham, with the environmental elites making the decision in advance, confusing and misleading the public about it, and ignoring all input as to the vices of their plans.  Thus the district court held that plaintiffs were likely to prevail on their claims of procedural violations, and enjoined the Rule.

The majority opinion, by Clinton appointee Ronald M. Gould, however, pointed to a brief by fellow Democrat Mike McGrath, the Attorney General of Montana, who told the Court that 67% of those who commented "favored even stronger protections for roadless areas than those proposed in the Draft EIS" and that "[n]ationally, 96% of commentators favored stronger protections".  By all appearances, ignorant majority support for the Rule trumped violations of the statutory procedural rights of troublesome minorities.  Liberals express solicitude only for the minorities on their own plantations, so to speak.  

The heart of NEPA is its requirement that federal agencies consider alternatives toward achieving the same general policy goal with less environmental impacts.  As the dissent explained,

 The so-called action "alternatives" offered by the Forest Service were:  1) ban road construction and repair, but allow timber harvesting; 2) bad road construction and repair but allow timber harvesting only for stewardship purposes; and 3) ban road construction and repair and all timber harvesting.  These "alternatives" differ only in how they handle timber harvesting; all of them ban road construction.  They omit the obvious alternative of not banning road construction and repair.  Thus the agency failed, as the district court found and the agency concedes, to give a "hard look" at all the alternatives.

It was good enough for the majority, however, who complained that "it would turn NEPA on its head to interpret the statute to require that the Forest Service conduct in-depth analyses of environmentally-damaging alternatives that are inconsistent with the Forest Service's conservation policy objectives".  The whole point of NEPA, of course, is to figure out which alternatives are "environmentally-damaging", rather than proceeding, as did the Court, on the basis of assumptions.

Moreover, the mission of the Forest Service, acknowledged by the Court is "to sustain the health, diversity, and productive of the Nation's forests and grasslands to meet the needs of present and future generations", not to pursue "conservation policy" in the abstract.  As the dissent points out, "[r]oads may be necessary to protect the forests and those who have property affected by them from avoidable destruction by fire, insects and disease", such that "it . . . makes no sense to assume, as the majority opinion does, that roadlessness will 'conserve and protect' the forests".  

Under the majority opinion, in order to protect wilderness from bulldozers, we will burn the wildlife alive.  This upholds the high ideals of the High Priests, ideals that are recited at length in the Court' opinion:  "roadless areas contribute to the health of the public because they help preserve the forest system's watersheds, the rivers, streams, lakes and wetlands that 'are the circulatory system of ecosystems, and water is the vital fluid for inhabitants of these ecosystems, including people'".  The notion that forbidding the construction of roads in the middle of nowhere will preserve "vital fluids" reminded me of General Ripper's comments about "precious bodily fluids".

In one particularly obnoxious passage, the Court explains that

"Many sensitive wildlife species . . . make their homes in wild and roadless areas of forest, and can know no other life.  Appellants-Intervenors point out that many wildlife species that are hard-pressed for survival have final refuge in roadless areas.  We cannot properly be unmindful of the fact that mountain lion, elk, wolverine, grizzly bears, wolves and other threatened species need roadless areas to survive."  (Emphasis added.)

Only the most profound ignorance of on-the-ground biology, of the sort that pervades today's ivory towers, produces nonsense such as this.  Wolf populations, for example, are growing by leaps and bounds, and destroying Western game herds, without regard to any invisible, deadly emanations from logging roads or even paved ones.  The Court's ignorance is reinforced with arrogance as well:  "There can be no serious argument," says the Court, "that restrictions on human intervention in these wilderness areas will not result in immeasurable benefits from the conservationist standpoint".

This sort of "conservationist" viewpoint has nothing to with law, but rather with promoting the Faith of the High Priests.  The Priests draw no distinction between unmeasurable benefits and  immeasurable benefits.  We need not measure any benefit from making areas roadless, because the benefit is declared as a matter of Faith to be so immeasurable that the courts who worship at the altar of those Priests must make it a heavy thumb upon the rotting scales of justice.  

No doubt, within the millions of acres of now-roadless areas are many places that it does not make sense to build a road, but the High Priests forbid that lesser mortals be permitted to exercise discrimination or common sense in federal land management.  Instead, we shall prepare to set the land ablaze as a burnt offering to their dark Gods.  

James Buchal, December 16, 2002

You have permission to reprint this article, and are encouraged to do so. The sooner people figure out what's going on, the quicker we'll have more fish in the rivers.

The title of this essay is drawn from a famous defense of Constitutional limitations upon the federal government by a great historian of the nineteenth century, George Bancroft.  I hazard to guess that forthcoming economic developments will vindicate the views of Mr. Bancroft.

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