Administrative and Judicial Review of NEPA Decisions: Risk Factors and Risk Minimizing Strategies for the Forest Service

Changes in land use and management practices throughout the past century–in addition to drought and other stressors exacerbated by climate change–have degraded the nation’s forests and led to overgrowth and accumulation of hazardous fuels (GAO 2015). Because of these fuels, some forests now see high-severity fires that threaten communities as well as important natural and cultural resources. Restoring desired vegetation conditions, which can often be accomplished through mechanical thinning or prescribed burning, are central objectives of restoration and fuel reduction projects carried out by federal land management agencies. However, prior to implementing restoration projects or any other major action that may result in a significant impact on the environment, the National Environmental Policy Act (NEPA) of 1969 requires federal land management agencies to conduct an environmental analysis to consider and fully disclose potential impacts (42 USC § 4332(C)). Rather than enforcing or prohibiting any specific action on the landscape, NEPA prescribes a general process designed to educate decision-makers, relevant agencies, and the general public about the environmental consequences of actions planned on federally-administered public lands. This decision-making process of receiving, documenting, and evaluating public comment on potential impacts of proposed actions is commonly referred to as the NEPA process. Historically, NEPA compliance has posed numerous hurdles for public land managers.Since early 2013, administrative challenges to Forest Service land management decisions take the form of a pre-decisional administrative review process involving the filing of written “objections” to proposed agency decisions (Brown 2015). Prior to early 2013, administrative challenges generally took the form of a post-decisional administrative review process. The agency’s resolution of an administrative challenge can in turn be judicially challenged via a lawsuit in U.S. District Court (Jones and Taylor 1995; Keele et al. 2006; Portuese et al. 2009), and district court decisions can be challenged in the appropriate U.S. Court of Appeals (Jones and Taylor 1995; Malmsheimer et al. 2004). The Court of Appeals is usually the final level of review for Forest Service land management decisions because very few Court of Appeals cases are selected for discretionary review by the U.S. Supreme Court. Note that the term “legal challenge,” used throughout this synthesis, is an encompassing term that includes both primary types of legal challenges: administrative (agency-level) and judicial (in the courts).