The United States Forest Service (“USFS”) dropped the “Roadless Rule” (66 Fed.Reg. 3244) on the public in the last ten days of the Clinton administration, the outcome of which was to essentially deny access to and management of 58.5 million acres of National Forest lands throughout the Country. That Rule covered a full 30% of all National Forests (which total 192 million acres), or about 3% of our total land mass in the lower 48 states. The Roadless Rule (which also included a complete prohibition on all timber harvests on these lands) was one of the largest agency rulemakings in history at the time that it was adopted in 2001, and in terms of scope and impact, most likely remains a top contender to this day. We are rapidly approaching the Rule’s 20-year anniversary, and it is time to assess the success or failure of this monumental and momentous regulatory behemoth. It is time, in other words, to ask a question that is so often left unasked when we talk about regulations: “Did it work?”
In order to analyze the success of the Roadless Rule we must first understand how it came into being, as the procedure followed by the USFS ultimately determined its outcome. The USFS adopted the Roadless Rule following what is arguably the most truncated, superficial and scientifically-devoid National Environmental Policy Act (“NEPA”) rulemaking in history. That the Roadless Rule was agenda-driven rather than based upon sound science is underscored by the fact that less than 13 months elapsed between the announcement of the proposed rule (October, 1999) and publication of the Final Environmental Impact Statement (November, 2000), with the Final Rule coming just 2 months later (January 12, 2001). This is truly an astounding feat for any land use regulation, especially one of this magnitude (and considering the fact that the USFS lacked basic information throughout the public review process, including maps to identify which lands would be covered). In adopting the Rule the agency ignored the physical aspects, management considerations, economic issues, vegetation, hydrology, geography, wildlife needs, fire risks, and social/cultural dimensions that make each National Forest unique. For example, it treated Montana’s National Forest lands exactly like those in North Carolina and Puerto Rico, thereby ignoring the individualized Forest Management Plans that were developed and adopted pursuant to the National Forest Management Act (“NFMA”). The Roadless Rule usurped the local participation that is mandated by the NFMA, instead imposing an agency-created one-size-fits-all approach regardless of individual on-the-ground considerations (with states such as Idaho having 9,000,000+ acres placed off limits in one fell swoop). In sum, the process followed by the USFS had little to do with “taking a hard look” at the environmental impact of the Roadless Rule (the statutorily-mandated standard); it instead focused upon adopting it as quickly as possible. The “outcome” was thus largely foretold by the mechanism used to push it through.
It is also important to understand the “intent” of the Roadless Rule, which was ostensibly to “protect and conserve” our National Forests from environmental degradation. The viability of placing millions of acres of land off limits in order to “protect” them, however, was more than controversial, with even USFS employees arguing against this approach. The Governmental Accountability Office (“GAO”) issued a report at the time warning about the risks that the Rule posed to maintaining forest health: “The proposed rule … would apply a national prohibition on road construction in roadless areas, even if local conditions suggest that a road would help the agency to restore and maintain desired ecological conditions.” The GAO also expressed concern that the agency Rule would prohibit the construction of roads to reduce the risk of “uncontrollable and potentially catastrophic fire or to improve the forests’ resistance to insects and disease that otherwise could kill trees and add to fuel loads.” The GAO had earlier warned that the USFS’s prohibition on road construction increased the risk of a bark beetle outbreak that could be devastating to the health of our National Forests.
Now reaching the question at hand: Did the USFS’s Roadless Rule “protect and conserve” our National Forests as intended? The answer is as obvious as it is tragic; the Roadless Rule, along with other forest management decisions, has been devastating. The Chief of the USFS admits that our forests are in “crisis,” estimating that 80 million acres (a little less than ½) of our National Forest lands are at risk of catastrophic forest fires, which is in addition to the 100 million acres burned over the last 20 years. Without roads to provide access the agency cannot treat these public lands fast enough to stop the conflagration. In fact, nine of the ten costliest wildlands fires in the United States have occurred since adoption of the Roadless Rule. The beetle outbreak in Colorado (the area the GAO specifically warned about) has wiped out millions of acres in the southern Rockies. Trees, like all plants, consume carbon dioxide. Studies show, however, that the dying forests in Colorado, Wyoming, Utah, Nevada, Montana and Arizona are now emitting more carbon dioxide than they are consuming.
It has been famously said that “you can ignore reality, but you cannot ignore the consequences of ignoring reality.” Reality shows that the Roadless Rule has not “protected and conserved” our National Forests, it has doomed them, changing our mountain landscape for generations to come.
The Roadless Rule has provided a valuable but harsh lesson underscoring how important it is to recognize that there is a direct correlation between the size and scope of agency rulemaking, and the size and scope of the unintended consequences when things go bad.
As a nation we simply cannot continue to ignore this relationship.
The fact is that the USFS ignored all of the warnings of what was to come if it adopted the Roadless Rule. Coming from Wyoming and having traveled throughout the interior west for the last twenty years, I have watched as our National Forests and adjacent lands have been decimated by the on-the-ground impacts of those actions. Because these decisions were made through agency action—rather than through Congressional action, no one has been held accountable; no elected representative has been required to stand on a debate stage or attend a townhall event to defend a vote supporting the Roadless Rule because no such vote was ever taken. There have been no electoral or political “consequences”; only consequences to the health of our National Forests and our communities. That just does not seem right.
Written by Harriet Hageman