A New Runway Doesn’t Need an EIS. Why Should a Timber Sale?

By Lawson Fite, AFRC General Counsel

The Ninth Circuit’s decision in Barnes v. FAA upheld an agency finding that constructing a new airport runway does not require an EIS. This is a stark contrast to recent district court decisions requiring an EIS for modest forestry projects, such as the Goose Project which would conduct largely thinning treatment on 2,100 acres, or the White Castle timber sale involving 187 acres of variable retention harvest. Unsurprisingly, the effects of a major construction project exceed the effects of these modest projects. Construction also involves dealing with air quality issues where there is more uncertainty than any analysis of the effects of standard forestry techniques. This case shows just how far NEPA decisions on forestry have departed from the law.

In terms of airport operations (the number of takeoffs and landings), Hillsboro Airport has been Oregon’s busiest airport since 2008. To create the capacity for continued growth, the Port of Portland began planning to add a new runway, measuring 3,600 feet long (0.7 miles) and 60 feet wide. The project also includes construction of taxiways, relocation of a helipad, and associated infrastructure improvements. The new runway would slightly increase storm water runoff, impact some 70 acres of vegetation, result in permanent loss of 2.22 acres of wetlands, affect some 50 acres of prime farmland or farmland of statewide importance, and raise electricity use slightly. After a remand from a first round of litigation, the Port and the FAA produced an EA which predicted that Hillsboro would have 11,350 more takeoffs and landings each year with the new runway than it would without the new runway. The EA estimated that the new runway would result in the annual emission of an additional 0.03 ton of lead in 2016 and the annual emission of an additional 0.02 ton of lead in 2021 – an increase of four percent. The project budget is approximately $16.5 million.

Environmental groups petitioned for review in the Ninth Circuit, claiming that the construction of the runway required an EIS. The court, in the first round of litigation, rejected claims that uncertainty of climate change effects required an EIS. It noted that there is not substantial scientific uncertainty relating to the causal connection between greenhouse gas emissions and global warming. However, the Court found because Hillsboro “represents less than 1 percent of U.S. aviation activity, greenhouse emissions associated with existing and future aviation activity at HIO are expected to represent less than 0.03 percent of U.S.-based greenhouse gases. Because this percentage does not translate into locally-quantifiable environmental impacts given the global nature of climate change, the EA’s discussion of the project’s in terms of percentages is adequate.” It also held that the decision did not create “precedent” that a runway does not require an EIS because runway EAs are site-specific.

In the second round of litigation, the court rejected arguments that effects from increased lead emissions would present unique risks due to effects on children’s health, or that effects were highly controversial or uncertain, because the FAA and the Port had quantified the “de minimis” increase in emissions. By contrast, district courts in Oregon have found “significant” effects requiring an EIS even in a project, such as White Castle, that would take no northern spotted owls.

Barnes was the right decision and it shows the path forward the Ninth Circuit can and should take in evaluating forestry projects.

What I Learned in Court

At AFRC one of our most important tools – and one of the most important services we offer our members – is our legal program.  AFRC not only advocates for responsible forest management on public lands by working directly with the agency and interested stakeholders.  We also have a legal team that aggressively defends good projects in court when challenged by opponents of active management.

Last week, I was at the Federal Courthouse in Eugene to observe oral arguments of a legal challenge to one of those projects.  Within minutes of walking into the courtroom, I was struck by the irony of the exercise.  To my left, to my right, directly in front of me, and directly behind me were 20-foot high wood-paneled walls (probably manufactured locally by an AFRC member).  The lawyers – including the environmental plaintiffs – were sitting behind ornate wood desks and the audience sat on wood benches and wood chairs.  The judge called the hearing to order by wrapping the gavel made of wood on her, wait for it, wood dais.

And the topic of discussion for the day: is it ok to use some of the billions of trees in Oregon, a renewable resource, to make the very things right in front of our faces?

After the judge thanked legal counsel for their extensive briefing materials, which amounted to hundreds of pages of legal analysis, maps, and discussion of all the steps the Forest Service undertook to design the project, the “show” began.  Not knowing the intimate details of the project (AFRC monitors 45 national forests and BLM units on 75 million acres of public land), I was anxious to understand the premise of the plaintiff’s legal challenge.  I was waiting for the fireworks.

Was the plaintiff going to claim the Forest Service was planning a massive “clearcut” of “old growth” near a favorite campground?  Such accusations always get the public’s attention.

Or, perhaps the plaintiff would argue the Forest Service was planning to authorize logging on the banks of Umpqua River near a well-known fishing hole?  That would get people fired up.

Or, maybe the plaintiff was simply going to claim that managing a tiny fraction of the Umpqua National Forest would mean the extinction of the spotted owl?  I mean, no judge wants to greenlight the extirpation of an entire species, right?

As it turns out, the legal challenge had little to do with the substance of the proposed project at all.  In fact, the project was aimed at thinning overstocked forests, restoring meadows, and making the landscape more resilient to fire.  The project was also planned on forestlands zoned as “Matrix” – the very lands intended for timber production under the Northwest Forest Plan.  I was confused.  So, what’s the problem?  Isn’t this exactly what environmental activists want the Forest Service to be doing?

The problem, according to the plaintiff, was the process.  The Forest Service had only spent hundreds of hours and tens of thousands of taxpayer dollars preparing an “Environmental Assessment” (EA).  The plaintiff argued such analysis and public outreach was insufficient – the Forest Service should have prepared a longer, more expensive document called an “Environmental Impact Statement” (EIS).  Forget that an EA is more than legally sufficient to disclose the impacts of the project to the public.  Forget the Forest Service made changes to the project to accommodate concerns from the public.  The plaintiff wanted an EIS (the same document used when analyzing a massive, permanent infrastructure project like building an interstate), not an EA.

Why, you ask?  That’s the question the judge was trying to get to the bottom of.  The Forest Service had already completed a comprehensive, multi-year, six-figure, taxpayer-funded EIS for the overarching forest plan that governs management of the entire Umpqua National Forest.  Should the Forest Service be required to complete a second EIS for every project that is tied to the forest plan?

Would such a requirement lead to significant changes to the project? Highly unlikely.  The requirement would lead to the very same outcomes but take significantly more time and cost more money.

Would such a requirement encourage more members of the public to learn more about the project and engage with the Forest Service?  No.  In fact, the opposite is likely to occur.  The public will be even less likely to read a 500 – 1,000 page document than a 200-page document.  Public disclosures required by the National Environmental Policy Act should be more accessible and consumable by the average person interested in public lands, not less so.

So, what is the whole point of this exercise?

As someone who served in Federal government for eight years, I deeply respect the checks and balances of our government.  Holding our government accountable, demanding that it be transparent, and petitioning the government when it blatantly violates the law provides the very foundation of our democracy.

But in this case, and in dozens of cases AFRC defends in court, that rarely seems to be the point of the legal challenge.  It’s not about the owl.  It’s not about clean water.  It’s not about public access, or even about “protecting” our forests.  Unfortunately, all too often, legal challenges focus on extremely technical components of the process, rather than on the substance of the project and whether or not the project violates the well-intended Federal statutes to protect the public, the environment, and those that depend on our public lands.

And that’s not a good thing for the judicial system (what happens when there’s a truly legitimate claim or grievance?), for engaging and educating the public about land management decisions, the taxpayer who foots the bill for the legal proceedings and often the plaintiffs’ attorney fees, the morale and expertise of the Forest Service, or for the timely and science-based management of Federal forests in response to climate change, fires, disease, and insect infestations.

We need a better process.  There has to be a more equitable way of holding our government accountable while not incentivizing or rewarding obstructionist behavior.  At AFRC, we want to work with those truly interested in a different, more efficient, more accessible, more transparent approach. -Travis Joseph