Bark v. U.S. Forest Service

The Ninth Circuit Court of Appeals reversed a federal district court in Oregon and held that the U.S. Forest Service’s (USFS’s) decision not to prepare an environmental impact statement (EIS) for a forest thinning project in Mount Hood National Forest was arbitrary and capricious. The appellate court found that the USFS had failed to “engage with the considerable contrary scientific and expert opinion” identified in public comments on the environmental assessment (EA) concerning forest thinning’s effectiveness in suppressing wildfires. The Ninth Circuit also said the EA did not sufficiently identify and analyze cumulative impacts. The Ninth Circuit concluded that both of these factors raised “substantial questions” about whether the project would have significant effects and that an EIS was therefore required. The Ninth Circuit did not directly address the issue of the project’s effects on climate change, an issue about which the district court concluded the USFS had undertaken a “thorough examination.”

The federal district court for the District of Oregon rejected claims that the U.S. Forest Service (USFS) failed to take a hard look at the climate change effects of a forest thinning project in the Mount Hood National Forest. The plaintiffs contended that the USFS’s National Environmental Policy Act (NEPA) analysis was inadequate because it was taken from the environmental assessment for a much smaller previous project and because it did not incorporate information from public comments, including a formula for assessing the carbon impacts of timber sales. The USFS argued that the project would promote the health of the forest, thereby sequestering carbon in the long run. The court wrote that the debate over “[w]hether the Project will have a net positive or negative contribution to carbon emissions depends on whether the USFS is correct in determining that thinning of overstocked stands will contribute to forest health and reduce the risk of fire, insect infestation, and disease.” The court said this question “is appropriately addressed in an analysis of whether the …Project will have highly controversial or uncertain effects” and found that the USFS had satisfied its NEPA hard look obligation by undertaking “a thorough examination of the question.”