Environmental Litigation Comes at the Expense of Americans, and the Environment

Last year the Daily Caller News Foundation reported federal agencies paid out more than $49 million to special interest groups that exploit environmental laws to sue the U.S. government.  As currently written, the Equal Access to Justice Act allows these groups to “sue and settle” and profit from these lawsuits at taxpayer expense.
Environmental lawsuits are not just a drain on the Treasury and federal agency budgets.  When it comes to the management of 188 million acres of national forests, it is resulting in severe catastrophic wildfires that are increasingly threatening forests, human lives and property.
Utah State Rep. Mike Noel made national news when he blamed “tree huggers” and “rock lickers” for the 71,000-acre Brian Head fire that destroyed homes and forced the evacuation of 1,500 residents.  Some dismissed Rep. Noel’s statement as hyperbole, but it reveals the deep sense of frustration many rural Americans feel about environmental litigation and the influence of fringe groups on federal land management.   Take Montana for example.
According an alarming report by the Evergreen Foundation, the Treasure State has seven million acres of federally-owned forests that are at high, or very high risk of wildfire. A quarter of these acres are near populated communities.  So much of Montana’s forests have been so significantly affected by insects, disease and wildfire that 90 percent of the national forests’ net annual growth is lost to these threats.
Anyone traveling through the Rockies can easily see the devastation caused by beetle infestations.  Tim Pearce’s story in The Daily Caller highlighted a Forest Service study that found beetle-killed trees ignite faster, result in the loss of forest canopy and add surface fuels that drive larger and severe fires. Such unhealthy conditions are the result of “hands-off” forest management caused in part by litigation that stymie forest health projects on federal lands.
So it’s no surprise that forest mortality has increased as timber harvesting on national forests has declined.  From 2005 through 2014, U.S. Forest Service Region 1, covering Montana and Idaho, harvested timber on 14,675 acres, which is just 0.05 percent of all forestland acres with some type of forest annually.  Meanwhile, wildfires in Region 1 average 468,000 acres per year, or 30 times the amount of harvested acres.
What explains the lack of active forest management activities in Montana, such as timber harvests, that reduce fuel loads on our natural forest and help contain beetle infestations? According to a University of Montana study, in recent years litigation has encumbered up to 50 percent of Region 1’s planned timber harvest volume and treatment acres. Between June 2012 and June 2013, 53 percent of non-categorical exclusion projects were appealed; 92 percent of the timber sale volume and 93 percent of acres were administratively appealed; and 54 percent of the timber sale volume and 64 percent of the acreage were litigated.
Critical forest health projects in Montana are also being held up by the so-called Cottonwood decision, a Ninth Circuit decision requiring the Forest Service to consult with the U.S. Fish & Wildlife Service at a programmatic level when new critical habitat is designated or a new species is listed.  Litigation is not only threatening the health of our national forests, it is threatening the state’s vulnerable timber industry that lost 100 wood processing facilities between 2004 and 2014.  Losing more forest products infrastructure will only increase the costs of forest restoration on federal lands in the future, as timber companies pay the federal government for the ability to remove the wood to manufacture products.
The Trump Administration and U.S. Congress has an opportunity to address the endless cycle of environmental litigation, create jobs and promote better management of our national forests.  The Resilient Federal Forests Act of 2017, recently approved by the House Natural Resources Committee, helps break the cycle by prohibiting fringe groups from receiving attorney fees when they sue to stop a project that is intended to reduce the threats of wildfire and insect infestations.
The Resilient Federal Forests Act also requires that any court hearing a case regarding a Forest Service action must weigh the benefits of taking short-term action versus the potential long-term harm of inaction, such as the threat of catastrophic wildfire. As an alternative to costly litigation, the legislation also proposed an innovative pilot project to test the use of arbitration to address challenges to certain forest management activities.
Congress should pass the Resilient Federal Forests Act without delay and pursue reasonable reforms to the Endangered Species Act and other well-intended environmental laws that today are failing to benefit Americans, wildlife and the environment. Until environmental litigation is addressed, American taxpayers will continue to carry the increased burden of higher firefighting and land management costs, and the loss of forests and the benefits they provide.
Environmental Litigation Comes at the Expense of Americans, and the Environment