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| The proposed roadless rule won't
result in less litigation, but it might well let the Bush administration
off the hook |
By Martin Nie
for Headwaters News |
| Some people want nearly 59
million acres of public land set aside from additional road
building and believe that roughly 400,000 miles of roads in
the national forest system is quite enough. Others disagree.
Both sides have legitimate arguments to make, but that is
not the focus here. Instead, I wish to examine the roadless
rulemaking process and how this important decision should
not be made.
The Bush administration has proposed replacing the original
roadless rule with a "petitioning process" that
would give governors an opportunity to seek establishment
of management requirements for roadless areas within their
states.
The proposed change would be available to governors for 18
months following the final rule, a time frame seen as "sufficient
for states to collaborate effectively with local governments,
stakeholders and other interested parties to develop proposals
that consider a full range of public input."
Any petition would then be evaluated, and if accepted by the
Secretary of Agriculture, the Forest Service "would initiate
subsequent state-specific rulemaking for the management of
inventoried roadless areas in cooperation with the state involved
in the petitioning process, and in consultation with stakeholders
and experts."
It is also at this stage that the agency would comply with
the National Environmental Policy Act and consider the environmental
effects of these state-based rules.
The administration advocates this significant departure from
the original roadless rule – and from public lands management,
in general – as a way to partner with (primarily Western)
state governments and deal with "the continued controversy,
policy concerns, and legal uncertainty" surrounding implementation
of the original.
Agriculture Secretary Ann Veneman said, "The prognosis
for the 2001 rule is continuing litigation lasting perhaps
many years in several judicial districts and in at least four
separate circuit courts of appeal."
"The prospect of endless lawsuits represents neither
progress, nor certainty for communities" she said.
While the 2001 rule emphasized the need to look at the national-level
picture regarding roadless-area management, the proposed change
accentuates the importance of the local.
This proposal has been met with a predictable amount of conflict
and controversy, and the public comment deadline has been
extended to Nov. 15. Some Western governors have embraced
it, while others see it as an outright abrogation of federal
responsibility.
Environmentalists rail against it, of course, for not only
does it potentially open up millions of acres to possible
development, it also sets a precedent for increased state
control over public lands management and could very well be
a more sophisticated tactic in advancing the ideals of the
Sagebrush Rebellion and wise-use movement.
The proposal is also an excellent example of how the executive
branch can use rulemaking to its political advantage. If implemented,
it provides the executive significant powers to judge the
acceptability of state petitions, while also giving it a potential
way out of making politically risky decisions.
From a process standpoint, this proposal is fundamentally
flawed. First, it is important to remember that Article IV
of the U.S. Constitution gives Congress – not state
governors – power over public lands management.
Of course, the administration argues that ultimate decision-making
authority still will rest with the Secretary of Agriculture,
as it must to be legal. Instead of outright delegation to
governors, their petitions will be "considered."
But as anyone familiar with writing a letter during an administrative
rulemaking process knows well, the term "considered"
can be as hollow as it sounds.
For example, will gubernatorial petitions that advocate opening
up more roadless areas be "considered" differently
than roadless-friendly ones?
Second, what happens when there is a change in gubernatorial
administrations? Will the status of a state's roadless
lands swing widely on a four-year election cycle? If so, it
places those advocating increased roadbuilding at an advantage
because they only have to win once.
Also curious is the argument that the proposed rule will take
care of the litigation surrounding the 2001 rule. This is
poorly reasoned on numerous counts.
First, it is inaccurate to suggest that the courts have forced
the administration to rewrite the original roadless rule.
That rule is currently in legal limbo, as the 9th Circuit
Court of Appeals upheld it on substantive and procedural grounds,
while an unfavorable Wyoming District Court decision has been
appealed to the 10th Circuit.
It is quite possible, then, that two western Courts of Appeals
will uphold the original roadless rule promulgated under Clinton.
Or, we may have another circuit split and wait for the Supreme
Court to sort things out.
The claim that the new proposed rule will reduce future litigation
surrounding roadless areas is also inaccurate. Instead, litigation
will certainly proliferate, as some states go forward with
crafting detailed petitions – petitions that are then
subject to further NEPA analysis and more litigation. Instead
of litigation over one national-level rule, it will be over
several state-based ones.
And third, it is insincere to lament the amount of litigation
surrounding the 2001 rule and use it as a reason to write
a new one, when the administration has chosen not to mount
a rigorous defense of the rule from the beginning. Instead
it plays the role of the helpless federal government that
has no choice but to back off from the original rule. And
this comes from an administration that has exerted more raw
executive power than any other in recent memory.
This is brilliant politics, but it also illustrates the limitations
of relying too heavily upon the courts and bureaucracy to
resolve conflicts over public lands management.
In the past, the procedural debate over the roadless rule
was split between those advocating a national policy and those
who favored more traditional forest-planning processes.
Those opposed to the rule often claimed that roadless-area
decisions should be made on a forest-by-forest basis, as they
have in the past.
So it will be odd if professional foresters and the timber
industry now champion the proposed national rule giving governors
more power over public lands management. If so, it raises
serious questions about the authenticity of their previous
arguments.
The proposed rule is particularly egregious from an accountability
standpoint. It is an artful dodge of responsibility and may
prove to be nothing more than a shrewd way of avoiding responsibility
for a risky political decision.
Instead of making the tough choice to either defend or scrap
the rule, the Bush administration passes the buck to state
governors. If the petitions are made without authentic broad-based
public input and participation, they will be a mockery of
the original rulemaking process and the unprecedented public
comment that went into it.
The proposed rule's promotion to the public has also
been disingenuous, for while it is offered as proof of "President
Bush's commitment to cooperatively conserving roadless
areas on national forests," it does no such thing, as
the proposed rule is merely procedural in nature: Maybe it
will, maybe it won't.
What is does do, however, is put an enormous responsibility
on Western governors and gives the executive branch a sharpened
rulemaking tool.
If implemented, the administration will be able to stand for
the principle of roadless area conservation in the abstract
while laying responsibility at the feet of Western state governors
when these lands are proposed for development.
But by retaining final decision-making authority, the administration
can also play the rulemaking "consideration" game
when it suits itself.
In short, the proposed rule perfectly illustrates the possible
dangers of using rulemaking as the primary means to resolve
conflicts over public lands.
Martin Nie is associate professor of Natural
Resources Policy in the College of Forestry and Conservation
at the University of Montana.
This piece is from "Administrative Rulemaking and Public
Lands Conflict: The Forest Service's Roadless Rule" forthcoming
in the Natural Resources Journal. |
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Readers respond
Back to local control
In general, Martin Nie's political analysis
of the Bush roadless move was close to my own -- he says it was a brilliant
political
stunt (I agree)
and has a good handle on what the proposal does and doesn't do.
But he glosses over the fact that the Clinton administration nationalized a
traditionally local debate and turned it into a political football that environmentalists hoped to spike into the Western Political Sacrifice End
Zone.
He also doesn't address the fact that the last forty years since the passage
of the Wilderness Act has seen escalating opposition to further wildernessization
of "roadless areas" at the local level, nor does
he
explore the reasons why.
Had he done so, then it would be obvious to Headwaters readers why the Bush
rule is better in the view of many Westerners than the Clinton bag job.
I'll be voting for Bush ... because once the Bush process begins, then so
will the debate...not in some courtroom, but in the affected communities.
You know,
representative government and all that jazz?
Dave Skinner
Whitefish, MT
Analysis:
Artful dodging
By Shellie Nelson, assistant editor
Headwaters News
Sept . 29, 2004
The Bush administration would revamp the Roadless Area Conservation
Rule put in place by President Clinton in January 2001, the provisions
of which have been on hold since a federal judge issued an injunction
in May 2001.
The rule has basically prohibited the building
of new roads on public lands since 1999.
The Bush administration's revision would leave the decision
on roughly 60 million acres of national forest, which are now
largely off-limits to logging, mining or other development,
to governors who would petition the federal government to allow
more -- or less -- development of federal lands in their states.
Twelve states in the western United States hold 97 percent of
the lands that would be affected by this ruling.
If the provision passes, the governors of Alaska,
Arizona, California, Colorado, Idaho, Montana, Nevada, New Mexico,
Oregon, Utah, Washington and Wyoming will have 18 months to
craft and submit their plans.
The provision would also allow changes in roadless designations
during that period with the permission of Forest Chief Dale
Bosworth.
The proposal elicited a mixed response among Western
governors, but fell fairly predictably along party lines,
with Republican governors from Montana,
Idaho
and Colorado
praising the proposal, and Gov. Bill Richardson, Democratic
governor of New
Mexico, castigating it as "bad environmental policy."
Wyoming Gov. Dave Freudenthal, a Democrat, said he saw the
proposal as a federal transfer of responsibility without any
attendant transfer of authority.
Article IV of the Constitution gives Congress,
not the executive branch, power to manage public lands. The
Bush administration has proven its ability and willingness to
use incremental rule changes to invoke wide-ranging policy.
When the administration could not get Congress to act on its
plan to revamp air-pollution regulations, dubbed "Clear
Skies," the administration simply rewrote administrative
regulations to institute the policy.
So, too, has national energy policy and provisions of the Endangered
Species Act undergone regulatory rule changes outside the purview
of Congress and the public.
Conservationists and environmentalists are concerned this latest
policy change is just another instance of regulatory sleight-of-hand.
The Bush administration and Congress have already
tangled over roadless areas and timber harvest, notably just
about a month before the Bush administration released its revision
of the Roadless Area Conservation Act.
In a close vote, Congress voted to prohibit federal funding
for 25 miles of new roads for two timber sales planned for Alaska's
Tongass
National Forest, an area exempted from Clinton's roadless
restriction by an earlier decision.
The administration has argued its support of this
rule change for a variety of reasons. One of the arguments put
forth by Agriculture
Secretary Ann M. Veneman was that it would help curb expensive
litigation and move the decisions on roadless areas from the
federal to the local level.
In reality, litigation may actually increase as opponents challenge
diverse management plans in different states in different federal
court jurisdictions.
Allowing governors the right to craft policy for
federal public lands will put policy on a four-year election
cycle. What will be the outcome if a sitting governor develops
a plan that either pushes for development of public lands or
opposes further development, and is defeated while a decision
is still pending?
The public comment period on the proposed rule
change was originally set to expire on Sept. 14, but was extended
by the Bush administration for another 60 days to Nov. 14.
That decision was cynically viewed by some as a political
move to postpone a potentially hot issue until after the
Nov. 2 election and by others an allowance of much-needed additional
time to address
a complex and far-ranging policy.
When the Forest Service opened up Clinton's Roadless
Area Conservation Rule for public comment, it received more
than 1
million postcards or other form letters, 60,000 original
letters, 90,000 e-mails and several thousand faxes.
It will be interesting to see the volume of public
comments to the Bush administration's policy change and whether
that volume will be heeded.
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