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.

The Worst Type of Government Waste

National Environmental Policy Act (NEPA) compliance is typically the most costly part of implementing any type of vegetation management project on federally managed land.  Documents exceeding 200 pages are commonplace to comply with NEPA.  In 2015 the Roseburg District of the Bureau of Land Management completed one such analysis called Olalla-Camus.  This analysis focused on treatments designed to fulfil the BLM’s O&C mandate to provide a sustained production of timber on lands allocated for such production as directed by their 1994 Resource Management Plan.  Like all NEPA documents completed by federal agencies attempting to conduct active forest management and timber harvest, Olalla-Camus included an in-depth analysis on everything from wildlife habitat to carbon storage and beyond.  The timber sales analyzed under this document were estimated to provide about 16 MMBF of timber.

Next month the BLM will be offering the only timber sale generated off the Olalla-Camus EA for a total of 6.7 MMBF.  The remaining 10 MMBF considered in this EA will never be implemented.  This is due to the BLM’s new management plan completed in 2016, inconveniently finalized between the publication of the Olalla-Camus EA and the planned implementation of the treatments it considered.  Like the 1994 RMP, the 2016 RMP set aside many acres where sustained timber production cannot occur.  The only difference is that these “set-aside” acres grew exponentially.  Part of this “growth” includes the majority of the land included in the Olalla-Camus EA.  The BLM could have included a “grandfather clause” that would allow projects conceived and analyzed under the old management plan to move forward, but they didn’t.  The unfortunate result is the worst type of government waste-investments consuming large sums of money and time being squandered. -Andy Geissler

NEPA Run Amok

The Council on Environmental Quality (CEQ) states in its 2007 publication A Citizens Guide to NEPA that “The environmental assessment (EA) is intended to be a concise document that briefly provides sufficient evidence and analysis”.  In an attempt to meet that guidance and to comply with the National Environmental Policy Act (NEPA), the Medford BLM District compiled 1,559 pages of environmental analysis in 2016 in order to implement that year’s vegetation management program; a program that generated less than 60% of the District’s assigned timber outputs.  So much for brief and concise.

So how did the Medford District digress from this simple guidance by the CEQ?  How did brief and concise morph into embellished and verbose?  The answer can partially be found by skimming through the 170 pages of written protests received in 2016 by the Medford BLM in response to the 1,559 pages of analysis.  Many of the points embedded in these protests begin with phrasing such as “the EA failed to consider…” or “insufficient analysis in the EA…”  Apparently not everyone shares the vision of brevity that the CEQ had in 2007; perhaps brevity is not in everyone’s best interest.  The Code of Federal Regulations permits anyone the right to file a written protest to any BLM forest management decision.  The Code of Federal Regulations does not however limit or cap the scale of these protests.  In other words, you as a citizen can submit a ten-page protest or a 100-page protest; or a thousand-page protest for that matter.  This last scenario is a bit absurd and may seem to be an exercise in futility, but considering that the BLM has taken the position that every single protest point embedded in each protest demands its own written response, you might reevaluate; that is if it’s in your interest to generate more paperwork for the BLM.

To illustrate, put yourself in the shoes of a BLM NEPA writer who just completed a 418 page EA (if you don’t believe me follow this link), who then, in response to the recently completed mammoth document,  receives over 60 pages of protests with over 80 individual protest points embedded that warrant written response.  The term blinded by paperwork comes to mind, or more accurately mired in paperwork.  Now, put yourself in the shoes of an opponent/protestor of the BLM’s forest/timber management program.  Suddenly the mire you created for the BLM doesn’t seem so bad, or futile.  If halting the BLM’s timber management program is unattainable surely slowing it down is the next best thing.

As for our aforementioned BLM NEPA writer: following what must be an exhausting exercise in defending and justifying the recently completed 418-page behemoth in writing, and with the stack of last year’s EA’s, protests, and protest responses still sitting on your desk, that BLM NEPA writer gets started on writing next year’s EA’s.  Make no mistake, the excessive and constantly expanding verbiage generated for each new BLM EA is indeed a function of years and years of protests demanding more and more verbiage.  And really, what better way to undermine an agency’s ability, and desire for that matter, to operate efficiently than to force that agency into generating more paperwork?  With 2017’s timber sale program just around the corner I can already hear the opposition to that program cracking their knuckles in anticipation.

–Andy Geissler, AFRC Western Oregon Forester