“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.
Trump Ninth Circuit judge Kenneth Lee tried in dissent to permit the US Forest Service to proceed with a project that would allow private logging companies to remove trees and log “millions of board feet of timber” in an area near a fire that had been put out in a national forest, without assessing the environmental impact of the project. The majority of a 3-judge panel, including a judge appointed by George W. Bush, rejected these arguments and ordered a preliminary injunction against the Forest Service that would require it to assess the project’s environmental effects in its August 2020 decision in Environmental Protection Information Center (EPIC) v. Carlson.
In 2018, a fire caused extensive damage In Northern California, including to the Mendocino National Forest. The US Forest Service then approved a project to solicit bids from private logging companies to cut down and remove large trees with some fire damage up to 200 feet from either side of roads in the National Forest. The project authorizes logging of “millions of board feet of timber” on “nearly 4,700 acres of National Forest land.”
Despite the environmental impact of the project, the Forest Service did not prepare an Environmental Impact Statement (EIS) or Environmental Assessment (EA), as usually occurs and is required by law. Instead, it claimed that the project was covered by an existing Categorical Exclusion (CE) in federal regulations from those requirements for road repair and maintenance. The environmental group EPIC disagreed that the CE covered the project and filed suit, seeking a preliminary injunction against the project until an EIS or EA was performed. A lower court ruled for the Forest Service and EPIC appealed.
The majority of a 3-judge panel on the Ninth Circuit, in an opinion by Judge William Fletcher joined by George W., Bush appointee Benjamin Settle, reversed and ordered a preliminary injunction against the project until the Forest Service performs an EIS or EA. Fletcher explained that EPIC was likely to succeed on the merits because the ”unambiguous” repair and maintenance CE clearly does not include the work to be done on the logging project. Although removal of a dead or dying tree “right next to the road” could fall within “repair and maintenance,” Fletcher went on, the CE “cannot reasonably be interpreted” to cover “commercial logging of large trees up to 200 feet away’ from “hundreds of miles” of roads. The majority also rejected a new argument by the Forest Service that a CE for “salvage logging” applied, since the project “does not target only trees that pose an immediate danger to travelers” as the CE requires.
The majority also found that the other criteria for a preliminary injunction were met. An affidavit and other materials showed “irreparable harm” to the environment if the project were allowed to proceed at this point, including “diminish[ment]” of individuals’ use and enjoyment of the National Forest. The balance of hardships and the public interest also favored an injunction, the majority continued, since it would require only a delay at this point so that the Forest Service would fulfill its “obligation” to perform an EIS or EA.
Trump judge Kenneth Lee dissented. Although he stated that he shared some of the majority’s “concerns” about the project, he maintained that the court should defer to the Forest Service and the lower court that denied an injunction. He noted that without the revenue that the project would generate, the Forest Service could be “forced to close roads and recreation areas.” The Forest Service decision to include the project within the CE was not “arbitrary and capricious”, he maintained, and the lower court “did not abuse its discretion” in denying a preliminary injunction.
As the majority explained, however, the lower court did abuse its discretion because it did not get “the law right” since it clearly misinterpreted the CE. Under “no reasonable interpretation of its language”, the majority noted, does the project “come within the CE for ‘repair and maintenance’ of roads.” The majority also noted that the fact that the Forest Service relies on “commercial” logging operations to “finance” some of its work can put the Forest Service in an “awkward and conflicted position” in deciding on the authorization of such projects. The majority pointed out that simply requiring an honest environmental assessment of the project as required by law, which could lead to “alternatives” that would still include logging but have less environmental impact, would not harm the Forest Service’s legitimate objectives.
The Forest Service will accordingly be required to complete an environmental assessment of the impact of its proposed logging project before it can proceed. If it had been up to Trump judge Lee, however, that would not be the case, risking significant environmental injury.