Copyright 2000 Federal News Service, Inc.
Federal News Service
May 10, 2000, Wednesday
SECTION: PREPARED TESTIMONY
LENGTH: 4441 words
HEADLINE:
PREPARED TESTIMONY OF STEVEN P. QUARLES ON BEHALF OF AMERICAN FOREST & PAPER
ASSOCIATION
BEFORE THE SENATE ENERGY AND NATURAL
RESOURCES COMMITTEE SUBCOMMITTEE ON FORESTS AND PUBLIC LAND MANAGEMENT
SUBJECT - THE FOREST SERVICE'S PROPOSED PLANNING RULES
BODY:
I. INTRODUCTION
Thank you for
the opportunity to appear before you today. I am representing the American
Forest & Paper Association (AF&PA). AF&PA has asked me to present
their views on the Forest Service's proposed resource management planning
regulations because of my familiarity with both the existing planning
regulations and the principal statute on which they are based. I had the
privilege of serving as counsel to the Senate Committee on Energy and Natural
Resources at the time the National Forest Management Act (NFMA) was enacted and,
together with Mike Harvey, was responsible for drafting many of the provisions
of the NFMA that were adopted during the measure's consideration in the Joint
Senate Committee markup, on the floor of the Senate, and in House-Senate
conference, particularly the several environmental requirements sponsored by
Senators Frank Church and Lee Metcalf. Since that time, I have participated on
behalf of the forest products industry in virtually all of the lawsuits
concerning the first generation of resource management plans under NFMA and the
present planning regulations. Two years ago, I had the privilege of representing
successfully the petitioner industry association before the Supreme Court in the
only case the Court has heard on the NFMA: Ohio Forestry Association v. Sierra
Club, 523 U.S. 726 (1998). The American Forest & Paper Association, on whose
behalf I speak, is the national trade association of the forest, paper, and wood
products industry. The organization represents nearly 200 member companies and
related trade associations which grow, harvest, and process wood and wood fiber;
manufacture pulp, paper and paperboard from both virgin and recycled fiber; and
produce solid wood products. Additionally, AF&PA represents a vital national
industry which accounts for over eight percent of the total U.S. manufacturing
output. Employing some 1.6 million people, the industry ranks among the top ten
manufacturing employers in 46 states, with an annual payroll of approximately
$45 billion.
AF&PA has long been concerned about
inadequacies in the Forest Service's existing planning regulations. We filed the
first petition to review those regulations in 1990. We, therefore, are not
defenders of the existing regulations, and are vitally interested in the outcome
of this rulemaking.
II. GENERAL COMMENTS
A. THE PROPOSED RULES
ARE UNTIMELY.
After a decade of waiting, we believe this rulemaking is
so overdue as to be untimely. The Department of Agriculture has delayed these
proposed rules for so long that now their promulgation will be highly
disruptive. Most of the national forests have begun the process of revising
their first generation resource management plans on the basis of the existing
planning regulations. No matter how hard the Forest Service tries to accommodate
and integrate the new rules and these ongoing plan revision efforts, confusion
is the inevitable consequence of this dilatory rulemaking.
These
proposed planning rules are also untimely because of their appearance in the
midst of other regulatory and policy proposals under public review and agency
development. It is difficult to assess these proposed rules because much of what
they contain may affect and be affected by the Forest Service's proposed revised
strategic plan, proposed roadless and unroaded areas management policy, and
proposed transportation system rulemaking, and the public lands component of the
Administration's Clean Water Action Plan. These efforts are intimately
related;the outcome of any one of them clearly impacts the outcomes of the
others. Yet these initiatives have been presented to the public in a
helter-skelter fashion, with little evaluation of their interaction. Moreover,
there is simply no way to discern or appreciate the cumulative impacts of the
ultimate decisions on these rules and policies when all are proposed
simultaneously instead of sequentially. The timing of these proposals simply
prevents reasonable public review.
As AF&PA has stated in comments
on the other initiatives, they should have been released to the public in such a
way that the public could clearly understand the relationship between them and
comment accordingly.
B. AF&PA'S MANY SUBSTANTIVE CONCERNS OVER THE
PROPOSED RULES
Were the untimely nature of the proposed planning rules
the only concern AF&PA had about them, my statement could be brief.
Unfortunately, the Forest Service has proposed rules that do not address the
inadequacies of the existing regulations but rather rules that bear virtually no
resemblance to the existing regulations. The result, in our mind, is that the
new rules create far more and quite different problems than those that needed
fixing in the existing rules.
AF&PA is so concerned about these
extraordinary proposed rules that it filed 82 pages of detailed comments on
them. It would try your patience beyond endurance for me to even highlight the
principal concerns raised by those comments. Instead, I will focus mostly on one
fundamental, substantive concern the decision of the Forest Service to make
ecological sustainability the overarching principle of and standard for national
forest planning.
I will speak forthrightly about this concern and our
concern over cost of these proposed rules. I also will provide in an Appendix a
more thorough -- and perhaps calmer -- discussion of (1) the invalidity of the
ecological sustainability standard for national forest planning; and (2) the
continuing statutory obligation of the Forest Service to adhere to the concepts
of multiple use and sustained yield, and, thereby, to furnish "a continuous
supply of timber for the use and necessity of' U.S. citizens, as required in the
agency's Organic Administration Act.
C. AF&PA'S CONCERN OVER THE
IMPOSITION OF THE NEW AND OVERARCHING PLANNING STANDARD OF "ECOLOGICAL
SUSTAINABILITY"
1. The Standard is Unlawful.
The proposed rules
clearly anoint "ecological sustainability" as the sovereign standard for
national forest planning. They state that the "first priority" in forest
management is the "maintenance and restoration of ecological sustainability."
Proposed 36 C.F.R. Section 219.19. We believe that adoption of ecological
sustainability as the preeminent standard for resource management plans violates
the laws governing management of the National Forest System and the very
purposes for which the System was created.
The Forest Service's existing
regulations require that the national forests be planned under the twin
principles of "multiple use" and "sustained yield" and define those two terms.
In embracing these two principles, the agency was faithfully adhering to the
law. Not one, but two modern statutes -- Multiple-Use Sustained Yield Act and
NFMA require the Forest Service to administer the national forests "to secure
the maximum benefit of multiple use sustained yield management." 16 U.S.C.
1601(d)(1). The first statute provided definitions of both "multiple use" and
"sustained yield." 16 U.S.C.
531. The second statute requires the Forest
Service to "provide for multiple use and sustained yield of products and
services obtained therefrom" in the resource management plans it develops for
the national forests.
The proposed regulations pay lip service to these
twin principles, but nothing more. The proposed rules permit adherence to those
principles only so long as they serve the new non-statutory standard of
ecological sustainability. The preamble suggests that this is really for the
best for these old multiple use and sustained yield principles that the glossy
new ecological sustainability standard will sustain these principles in their
dotage -- that ecological sustainability creates and nurtures multiple use and
sustained yield. We believe that is mere rhetoric.
The proof of how the
agency views the new versus the old planning standards can be found in the
definitions section of the proposed rules. Proposed 36 C.F.R.
Section
219.36. Unlike the existing rules, the proposed rules do not even bother to
provide definitions for "multiple use" and "sustained yield." That alone should
suggest how cavalierly the Forest Service treats these statutory mandates.
Instead, the proposed rules lavish definitions on "ecological sustainability"
and associated terms of "ecological composition," "ecological conditions, ....
ecological integrity," and "ecosystem structure." Could it be that the Forest
Service feels the need to provide regulatory definition for these concepts and
terms precisely because Congress has chosen not to include them in any law
authorizing or governing the agency's behavior?
The Forest Service is
without authority to plan and manage its land under the single, overarching
standard of ecological sustainability. Neither the term nor the concept can be
found in any statute pertaining to the agency. Instead, in the preamble to the
rules and in other documents proposing and justifying the adoption of the
ecological sustainability standard, the Forest Service has attempted to locate
that authority in snippets of statutory provisions in which any words that could
be associated with the standard -- words concerning the environment, soils,
water, etc. -- are said to somehow collectively form the standard. The agency
has amputated words and phrases from NFMA and other laws and stitched those old
statutory body parts together into a new and unattractive regulatory
Frankenstein. Such creativity is admirable when writing popular fiction, but not
regulations.
Indeed, if one were to follow this course of isolating and
counting words and phrases to justify the invention of a new national forest
planning and management directive, as good or better case could be made for
timber production as the dominant goal and standard for Forest Service planning.
There are more NFMA provisions addressed to timber harvesting than to
environmental matters. The very history of the NFMA -- its speedy introduction
and enactment in order to overturn federal court opinions that would have all
but prevented timber harvesting in the National Forest System -- could also be
offered in defense of a preeminent silvicultural standard. Such a standard would
be farfetched, indeed; but no more farfetched than a transcendent standard of
ecological sustainability.
2. The Standard Is Alien to Agency History
and Tradition.
This ecological sustainability standard is as alien to
the history and tradition of the Forest Service as it is to the statute books.
It cannot be squared with Gifford Pinchot's utilitarian vision of wise economic
use of the lands and resources of the National Forest System. The agency doesn't
even try for a reconciliation with the philosophy of its first and foremost
chief. Indeed, the Forest Service invokes the name of Gifford Pinchot only once
in the proposed rule's preamble. And quotes him not for any management guidance
but on the importance of public participation! One wonders how Gifford Pinchot,
who developed his forest management theories and methods after visiting managed
European forests, would react to the Forest Service's concept of "historical
range of variability" based on unmanaged, "preEuropean" forest conditions.
3. The Standard May Not Survive Judicial Challenge.
Some will
argue that it doesn't matter whether ecological sustainability is embodied in
any statute. Instead, particularly after Chevron, U.S.A., Inc. v. Natural
Resources Defense Council, 46 U.S. 837 (1984), the courts pay deference to the
"expert agency's" interpretation of the law. However, the courts defer to the
expert agency only if no discernable legislative intent can be found in the
first step of Chevron analysis. Only in Chevron step 2 is the expert agency
allowed to act as a gap filler where the statute is ambiguous. As I discuss in
detail in the appendix to this statement, we believe that the statutes are quite
clear. They require that all land and resource uses receive "equal
consideration" in the planning and management of the national forests.1 The
concept of ecological sustainability -constrained by such subordinate concepts
of "ecosystem integrity" and "historical range of variability" g not only
inhibits equitable consideration of all uses but ultimately subordinates
commodity uses to non-commodity uses. We do not believe the Forest Service can
sustain these proposed rules in the litigation that will follow their
promulgation.
4. The Standard Renders the Agency Unaccountable to its
Stakeholders.
If these proposed rules do survive judicial challenge, all
stakeholders -- not just commodity interests -- should be concerned that there
will be no check upon even the most arbitrary of agency planning decisions. That
is because this concept of ecosystem management is so vague and ephemeral -- so
susceptible to subjective judgment or bias -- that Forest Service planners can
make of it anything they please and be free of any challenge. This was brought
home to me by a quite extraordinary statement of former Chief Thomas in a 1994
Forest Service leadership meeting on "ecosystem management," a concept that
preceded "ecological sustainability."
What is ecosystem management? I
will tell you my concept -- which, of course, is only my view. New efforts by
scientists, philosophers, technologists, leaders and managers can be targeted at
sharpening of evolving (ecosystem) concepts and practices. Under ecosystem
management small scale actions are judged and tracked for their contributions to
particular desired future conditions. These conditions are to be nurtured in the
constantly evolving pattern that makes up the multi-scale ecosystem tapestry.
(Emphasis added.)2
I admit it is unfair to single out Chief Thomas; I
have read equally vague, similarly ethereal statements from the present
leadership in the Department and the agency.
"Biological diversity" --
another concept that served as precedent for and is embodied in the ecological
sustainability standard -- provides no better footing against subjective
decision making. A 1995 law review article that was, in fact, favorable to the
biological diversity concept allowed biological diversity definitions to speak
for themselves to demonstrate how devoid of standards that concept is:
Definitions employed by conservationists and scientists fail to provide
concrete factors useful for setting legal standards. For instance, current
theories focus on the benefits of biodiversity, which simply refer to the
"variety of life." Ecosystem biodiversity in particular is defined as "the
various assemblages of plants, animals, and microorganisms that occur in
different physical settings."3
We seem to have progressed little since
1995, since we are presented with a proposed rule definition of "diversity of
plant and animals" that is virtually identical to that earlier definition: "The
distribution and relative abundance of plant and animal species occurring within
an area." Proposed 36 C.F.R. Section 219.36.
As one noted professor put
it: "Biodiversity is an elusive concept in science and law... It is no wonder
that, given the uncertainty of the scientific community about what diversity is,
environmental law has charted no clear directions..."4
D. THE
PROHIBITIVE COST OF PLANNING UNDER THE PROPOSED RULES ENSURES MANAGEMENT
PARALYSIS Having quoted Chief Thomas on a subject for which he may not claim
expertise, I would like to turn to an area where his expertise is undeniable. At
last year's Resources for the Future Conference on the Future of the Forest
Service, Chief Thomas was asked to comment on the recommendations of the
Committee of Scientists to improve the Forest Service planning process, which
form the basis for the proposed rules. He stated that there "is not enough money
in Fort Knox to implement them." We share that concern.
If the Forest
Service proposes a planning system so complex it cannot be funded, adoption of a
roadless area protection policy and any Congressional enactment
of wilderness legislation would be redundant. NFMA allows only those management
activities on national forests that are consistent with resource management
plans. No plans -- or plans lost in a processing limbo -- means no activities
other than, perhaps, primitive recreation. Even if the agency tries to manage
national forests on outdated plans, challenges will soon follow and injunctions
may soon issue. We fear that these proposed rules are a self-inflicted unfunded
mandate.
E. ENOUGH BLAME TO GO AROUND
Not all the blame for
these hopelessly vague and utopian proposed rules lies with the agency. The
Under Secretary of Agriculture chose to abandon earlier draft proposed
regulations prepared by the Forest Service and, instead, to appoint a Committee
of Scientists to opine, and instruct his agency, on forest planning. You would
think the Department would learn from its mistakes. The existing regulations are
the product of a previous Committee of Scientists -- that one created at the
instruction of Congress. A federal district judge, referring to the rulemaking
that produced the existing regulations, recently said it best:
The
current regulations are not models of clarity.
Indeed, they provide a
persuasive argument against allowing a committee of scientists to draft
regulations having legal consequences. In a very real sense, the Forest Service
has brought this litigation upon itself by imposing upon itself the broad,
sweeping and extravagantly general duties and responsibilities set forth in the
regulations.
Sierra Club v. Martin, 992 F. Supp. 1448, 1460, (N.D. Ga.
1998)
If my statement were a brief in litigation, I would be tempted to
write "emphasis added" and put the judge's entire quote in italics. His words
are even more appropriate when applied to the proposed rule.
Perhaps
even a measure of blame could be assessed against AF&PA. As the first to
petition for new planning rules a decade ago, we have learned again, painfully,
that old lesson: "Be careful, you may get what you wish for."
F. THE
DEMISE OF MULTIPLE USE
When I testified before the House Resources
Committee on these proposed regulations, a questions was posed to the witnesses
whether multiple use would still be made of the national forests a decade hence
if the proposed rules were promulgated. A member of the Committee of Scientists
answered that of coursemultiple use would still be prevalent -- indeed, there
likely would be at least as much timber harvesting and other uses then as now. !
differed with him.
My view is that management that authorizes and
accommodates multiple use will be an historic curiosity by then. The standard of
ecological sustainability strews far too many obstacles in the path of
management decisonmaking for any ground-disturbing activity to surmount. If I
may, let me mention only a few of the manifold obstacles erected by these
proposed rules.
First, an overriding constraint on all "site-specific
decisions" is that no activity -- ski resort, trail construction, timber sale,
livestock grazing -- may be approved unless it would "maintain or restore
ecosystem integrity, including species viability." Proposed 36 C.F.R. '
219.20(b). This burden of proof alone would likely be too much for any project
to bear. Any land disturbing activity disturbs an ecosystem, and, therefore, is
readily susceptible to claims that it disturbs the integrity of that ecosystem.
I challenge anyone to show how a proponent of the activity could disprove a
claim involving such an abstract, subjective, immeasurable notion as maintenance
of ecosystem integrity.
Second, activities are not allowed where they
would not "(p)reserve options so that a range of future stewardship choices will
be available." Proposed 36 C.F.R.
Section 219.20(b)(4). Surely, any
activity that disturbs the land in any way is vulnerable to the charge that it
removes one or another future stewardship choices.., or more precisely, in the
proposed rules' tortured language, that it removes an option to allow a choice.
Planning to do nothing is always the "safest" way to preserve future
decisionmaking options, even if the failure to act leads to the death of forests
-- and options -- from catastrophic wildfire, insect infestation or disease.
Third, the proposed rules arbitrarily require Forest Service decisions
to "provide for maintenance of the biological and physical components of
ecosystems within the historical range of variability" and artificially define
that concept in idealized terms of"pre-European" conditions. Proposed 36 C.F.R.
Sections 219.20(b)(3)
Section 219.36. I cannot imagine how a significant
ground-disturbing activity could survive this test for ecosystem sustainability.
Indeed, use of pre-European times as a proxy for ecological sustainability is
truly arbitrary. This test cannot even be documented as clear records do not
exist on what pre-European forests looked like. But whatever imaginative
assumptions are made, few modern activities could be determined to fall within
some computer-modeled "natural" conditions that might have existed centuries
ago.
This "pre-European" variability standard cannot be found within --
or even between -- the lines of the 1897 Organic Administration Act,
Multiple-Use Sustained-Yield Act, or National Forest Management Act. These
statutes contemplate timber and economic uses up to a point of "substantial and
permanent impairment of the productivity of the land." 16 U.S.C. 1604(g)(3)(C).
As suggested in a ruling of the Fifth Circuit, the concept that activities on
national forests must be within the "historical range of variability" in
pre-European times creates a "standard for protection of natural resources...
'as they would exist without unreasonable impairment by humans' "-- but the
"language of the (NFMA) statute does not suggest this interpretation, and we do
not adopt it." Sierra Club v. Espy, 38 F.3d 792, 800 n.2 (5th Cir. 1994).
Fourth, no action can occur without surveying for more wildlife. Under
the existing rules, the Forest Service is to survey for management indicator
species -and, as the courts have found, the agency has had neither the funds nor
personnel to accomplish even this task. Now the Committee of Scientists and the
proposed rules would have the agency survey for, establish the status and level
of, and analyze the viability of "focal species", "species at risk", "demand
species", and "indicators of ecosystem integrity," 36 CFR Sections 219.11(e),
219.20(a)(7)-(10) and (b)(8)(10). A species would have to be pretty sorry indeed
not to be subject to one of these broad survey requirements which appear to
apply at all levels of planning, including planning for site-specific
activities. Finally, the Forest Service is to provide information and analysis
on the "comprehensive status of ecosystemcomponents and the contribution of
National Forest System lands to ecosystem integrity, including species
viability, based on consideration of all lands within the area under analysis."
Proposed 36 C.F.R. Section 219.20(a)(5). The term "comprehensive" is the kicker
that renders this requirement impossible to implement since the number of
ecosystem components for which information must be gathered and analyzed
approaches infinity. These survey requirements have got to be Exhibit A to
validate the truth of former Chief Thomas' remark that all the money in Fort
Knox would not fund implementation of the proposed rules.
Fifth, the
proposed rules demand that the Forest Service "ensure that plan decisions are
consistent with the best available scientific information and analysis."
Proposed 36 C.F.R. Section 219.24(a). This standard posits a second
impossibility. Even our Nation's most stringent environmental law -- the
Endangered Species Act -only requires use of the best available scientific
information, not that the decisions on endangered or threatened species must be
consistent with the best available scientific information. It appears to be an
almost immutable law of science that data -- even the best available data -- are
typically internally inconsistent. How, I wonder, can a plan decision that would
serve as a basis for a management activity ever be viewed as consistent with
inconsistent data?
Sixth, incredibly the proposed rules contain a
prohibition against authorizing any activity for which there is not "a
reasonable expectation" that adequate funding will be available to complete any
required monitoring and evaluation. Proposed 36 C.F.R. Section 219.11(c). This
provision is a fertility drug for litigators. As a litigator, I would feature
this provision in any complaint I would file against any Forest
Service-authorized activity I dislike. As long as the funding of multi-year
projects and monitoring is dependent on annual appropriations I could always
argue -persuasively, I believe -- before any court that a reasonable expectation
of funding does not exist. What's a district ranger to do? Stuff his mattress
every time he authorizes a new activity?AF&PA believes that these proposed
rules are so fundamentally flawed, so bereft of statutory foundation, and so
untimely that the agency should withdraw them. If the Forest Service intends to
manage the National Forest System under new standards, it should cease its
bureaucratic civil disobedience and seek the necessary statutory authorization
to do so.
We compliment the Subcommittee on Forests and Public Land
Management for holding this hearing. The issues surrounding the proposed
rulemaking deserve to be heard in forums such as this and should not be confined
to the agency's rulemaking docket.
FOOTNOTES:
1 House report on
the Multiple-Use Sustained-Yield Act, H.R. Rep. No. 1551 (1960) reprinted in
1960 U.S.C.C.A.N. 2377, 2379-80.
2 For me, this quote immediately raises
a number of troubling questions and thoughts. Does each and every other Forest
Service official have only his or her view?...Philosophers right after
scientists and before leaders and managers?... Evolving, multi-scale, perhaps,
but not a standard the law and national forest stakeholders can readily
comprehend or apply. In fact, philosophers may be best equipped to discern the
meaning of the constantly evolving pattern that makes up the multi-scale
ecosystem tapestry. (... continued)
3 L.M. Bernstein, "Ecosytems
Communities: Zoning Principles to Promote Conservation and the Economy," 35
Santa Clara L. Rev. 1309 (1995).
4 J.B. Ruhl, "Biodiversity Conservation
and the Ever-Expanding Web of Federal Laws Regulating Non-Federal Lands: Time
for Something Completely Different?" 66 Colo. L. Rev. 556, 564-565 (1995).
END
LOAD-DATE: May 12, 2000
