The National Environmental Policy Act and the USDA Forest Service: Where We Agree, Where We Disagree, and Why

In this article, we respond to a critique of our earlier work examining the USDA Forest Service’s (USFS’s) planning processes. We appreciate that our critics introduce new data to the discussion of USFS planning. Further data integration is a promising path to developing a deeper understanding of agency activities. Our critics’ analysis largely supports our original claims. Our most important difference is in our conceptualization of the planning process’s relationship to agency goals. Although our critics conceive of the USFS’s legally prescribed planning processes as a barrier to land management activities, we believe that public comment periods, scientific analysis, and land management activities are tools the agency uses to achieve its goals of managing land in the public interest. Study Implications: The USDA Forest Service’s current planning process has been critiqued as a barrier to accomplishing land management activities, but it is also an important tool for insuring science-based management and understanding public values and interests that the agency is legally bound to uphold.

Federal Statutes and Environmental Justice in the Navajo Nation: The Case of Fracking in the Greater Chaco Region

Arguing for the importance of robust public participation and meaningful Tribal consultation to address the cumulative impacts of federal projects, we bridge interdisciplinary perspectives across law, public health, and Indigenous studies. We focus on openings in existing federal law to involve Tribes and publics more meaningfully in resource management planning, while recognizing the limits of this involvement when only the federal government dictates the terms of participation and analysis. We first discuss challenges and opportunities for addressing cumulative impacts and environmental justice through 2 US federal statutes: the National Environmental Policy Act and the National Historic Preservation Act. Focusing on a major federal planning process involving fracking in the Greater Chaco region of northwestern New Mexico, we examine how the Department of the Interior attempted Tribal consultation during the COVID-19 pandemic. We also highlight local efforts to monitor Diné health and well-being. For Diné people, human health is inseparable from the health of the land. But in applying the primary legal tools for analyzing the effects of extraction across the Greater Chaco region, federal agencies fragment categories of impact that Diné people view holistically. (Am J Public Health. 2022;112(1):116–123. https://doi.org/10.2105/AJPH.2021.306562 )

Effects of non-ionizing electromagnetic fields on flora and fauna, Part 3. Exposure standards, public policy, laws, and future directions

Due to the continuous rising ambient levels of nonionizing electromagnetic fields (EMFs) used in modern societies—primarily from wireless technologies—that have now become a ubiquitous biologically active environmental pollutant, a new vision on how to regulate such exposures for non-human species at the ecosystem level is needed. Government standards adopted for human exposures are examined for applicability to wildlife. Existing environmental laws, such as the National Environmental Policy Act and the Migratory Bird Treaty Act in the U.S. and others used in Canada and throughout Europe, should be strengthened and enforced. New laws should be written to accommodate the ever-increasing EMF exposures. Radiofrequency radiation exposure standards that have been adopted by worldwide agencies and governments warrant more stringent controls given the new and unusual signaling characteristics used in 5G technology. No such standards take wildlife into consideration. Many species of flora and fauna, because of distinctive physiologies, have been found sensitive to exogenous EMF in ways that surpass human reactivity. Such exposures may now be capable of affecting endogenous bioelectric states in some species. Numerous studies across all frequencies and taxa indicate that low-level EMF exposures have numerous adverse effects, including on orientation, migration, food finding, reproduction, mating, nest and den building, territorial maintenance, defense, vitality, longevity, and survivorship. Cyto- and geno-toxic effects have long been observed. It is time to recognize ambient EMF as a novel form of pollution and develop rules at regulatory agencies that designate air as ‘habitat’ so EMF can be regulated like other pollutants. Wildlife loss is often unseen and undocumented until tipping points are reached. A robust dialog regarding technology’s high-impact role in the nascent field of electroecology needs to commence. Long-term chronic low-level EMF exposure standards should be set accordingly for wildlife, including, but not limited to, the redesign of wireless devices, as well as infrastructure, in order to reduce the rising ambient levels (explored in Part 1). Possible environmental approaches are discussed. This is Part 3 of a three-part series.

Gene editing in tree and clonal crops: progress and challenges

Because of the limitations inherent in conventional breeding of trees and clonally propagated crops, gene editing is of great interest. Dozens of published papers attest to the high efficiency of CRISPR-based systems in clonal crops and trees. The opportunity for “clean” edits is expected to avoid or reduce regulatory burdens in many countries and may improve market acceptance. To date, however, nearly all studies in trees and clonal crops retained all of the gene editing machinery in the genome. Despite high gene editing efficiency, technical and regulatory obstacles are likely to greatly limit progress toward commercial use. Technical obstacles include difficult and slow transformation and regeneration, delayed onset of flowering or clonal systems that make sexual segregation of CRISPR-associated genes difficult, inefficient excision systems to enable removal of functional (protein- or RNA-encoding) transgenic DNA, and narrow host range or limited gene-payload viral systems for efficient transient editing. Regulatory obstacles include those such as in the EU where gene-edited plants are regulated like GMO crops, and the many forms of method-based systems that regulate stringently based on the method vs. product novelty and thus are largely applied to each insertion event. Other major obstacles include the provisions of the Cartagena Protocol with respect to international trade and the need for compliance with the National Environmental Policy Act in the USA. The USDA SECURE act has taken a major step toward a more science- and risk-based—vs. method and insertion event based—system, but much further regulatory and legal innovation is needed in the USA and beyond.

The Nature Business

This chapter begins with the introduction of Robert Kafin and his law partner, Ed Needleman who had been talking to Ted Hullar from the Sierra Club, David Newhouse from the Adirondack Mountain Club (ADK), and Courtney Jones, a philanthropist from the Lake Champlain town of Westport at Harold Hochschild's Great Camp in October 1971. The chapter describes Kafin's career shift and how he learned what was going on in the Adirondacks. Kafin saw that the National Environmental Policy Act (NEPA) and other new federal laws were broadly written and not widely understood, especially by law firms north of Albany. The chapter reviews how the Adirondack Pack Agency Act added a big new state law to that pile. These laws could be used to shape or stop development. The chapter then shifts to describe how the Adirondack Project established Kafin & Needleman as the people to talk to if you wanted to block development in the Adirondacks. It also reviews the implications of Horizon and Ton-Da-Lay development for the Adirondack Park Agency (APA). Ultimately, the chapter examines the power and influence of some lawyers in relation to the APA.

Response to the Journal of Forestry Article: “US Forest Service Implementation of the National Environmental Policy Act: Fast, Variable, Rarely Litigated, and Declining”

The Fleischman et al. (2020a) article on US Forest Service (FS) implementation of the National Environmental Policy Act (NEPA) correctly identified a decline in the number of NEPA analyses, but several conclusions were not supported by the data used. After analyzing their and other relevant data, we reached substantially different conclusions. Using FS budget data, we found budgets supporting NEPA analyses to be flat to increasing. Likewise, using FS accomplishment data, we found several FS land-management activities increased as others remained flat or decreased. The three types of NEPA analyses took statistically significant different times to complete, and time to complete analyses declined little over 15 years. We also found that litigation rates varied substantially by NEPA analysis type, resource purpose, and FS region. Conducting NEPA analyses is a necessary step in federal land management. However, resources invested in NEPA analyses represent an opportunity cost, and the success of the FS is better measured by on-the-ground accomplishments rather than number of NEPA analyses produced. Study Implications National Environmental Policy Act (NEPA) analyses are required for management of National Forest System (NFS) lands. The Forest Service (FS) devotes substantial effort to conducting NEPA analyses, and the use of NEPA analyses in litigation against NFS management activities is well documented. Land managers and the public need an accurate understanding of how the FS is implementing NEPA. A recent Journal of Forestry article about NEPA assumed that NFS budgets and land management activities declined with the number of NEPA analyses. By contrast, data from the FS shows (1) NFS budgets have been flat to increasing, (2) several NFS accomplishments have been flat to increasing, (3) the time to complete a NEPA analysis varies substantially by the type of analysis, (4) the amount of time the FS takes to complete NEPA analyses has declined very little over the past 15 years, and (5) litigation of NEPA analyses varies by the type of analysis, FS region, and resource purposes. Although conducting environmental analysis is a necessary step in federal land management, completing NEPA analyses is not a substitute for accomplishing on-the-ground management activities, and resources invested in NEPA analyses represent an opportunity cost to the FS.

Implementing NEPA in the Age of Climate Change

The national government has a crucial role to play in combating climate change, yet federal projects continue to constitute a major source of United States greenhouse gas emissions. Under the National Environmental Policy Act, agencies must consider the environmental impacts of major federal actions before they can move forward. But agencies frequently downplay or ignore the climate change impacts of their projects in NEPA analyses, citing a slew of technical difficulties and uncertainties. This Article analyzes a suite of the most common analytical failures on the part of agencies with respect to climate change: failure to account for a project’s downstream and upstream greenhouse gas emissions; failure to acknowledge a project’s effect on the country’s energy mix; and failure to consider a reasonable social cost of carbon. After summarizing current regulatory practice and case law on each topic, this Article finds that despite protestations that accounting for such impacts is infeasible, agencies already possess many of the tools needed to assess such impacts, and indeed, some agencies already use these tools to do so. Furthermore, courts are increasingly holding agencies accountable for a full and fair assessment of climate change effects in NEPA analysis. This Article aims to highlight best practices so that agency offices can learn from one another, fulfill NEPA’s mandate, and begin to provide leadership in the fight against climate change.

No Butts on the Beach: Aquatic Toxicity of Cigarette Butt Leachate Chemicals

Objectives: Toxic pollutants leaching from littered cigarette butts (CB) raise environmental impact concerns. The US Food and Drug Administration (FDA) is required to assess the environmental impacts of its tobacco regulatory actions per the US National Environmental Policy Act (NEPA). Methods: We determined the chemical constituents in CB leachate through analyses of 109 field-collected CB and literature compilation and characterized their ecotoxicity to aquatic organisms. Results: One-third of the 98 identified CB leachate chemicals were very toxic and 10% were toxic to aquatic organisms due to acute and chronic toxicity. Polycyclic aromatic hydrocarbons, metals, phthalates, nicotine and volatile organic compounds were the most hazardous CB leachate chemicals for aquatic organisms. Of the 98 CB leachate chemicals, 25 are included in FDA's list of harmful or potentially harmful constituents in tobacco products and tobacco smoke. Conclusions: Our study quantifies CB leachate constituents, characterizes their ecological hazard and identifies chemicals of concern. Thus, it aids in evaluating the environmental impacts of tobacco products per NEPA requirements. These results provide important information for strategies to prevent and reduce CB litter (eg, awareness programs, litter laws enforcement), thereby reducing environmental hazards from CB toxicants.