The Infrastructure Act and the Taos Canyon Logging Project: Time for a Forest Revolution

Carson National Forest Photo: US Forest Service.

The National Environmental Policy Act, or NEPA, is the environmental rights law for the public, who are the legal owners of our national forests. It is the framework within which we consider the risks and benefits of forest management projects and attempt to avoid harmful outcomes or even environmental disasters. In the past, NEPA required us to “look before we leap,” but increasingly the Forest Service is leaping before it looks in the planning and implementation of fuel reduction projects. Often the results are severe ecological damage and even increased fire risk. Section 40807 of the Infrastructure Investment and Jobs Act, “Emergency Actions,” may be the final phase in the long dismantling of our NEPA rights to protect our forests.

Section 40807 authorizes the Forest Service to take “emergency action” when an immediate response is needed to address forest-related “emergencies.” Emergency guidelines were originally established in the Healthy Forest Restoration Act of 2003, and under both acts, emergency actions may be taken by the agency to alleviate hazards that threaten human health and safety and to mitigate threats to natural resources on National Forest System lands or adjacent lands. It is up to the Forest Service to decide whether and when an emergency exists on national forest lands, and to choose from a list of responses that includes the removal of “hazardous fuels.” The Forest Service has recently used emergency authority to approve and implement large-scale and aggressive commercial logging and prescribed burning projects. Such authority, while reasonable for true emergencies, has been significantly expanded by the agency to the extent that the public has virtually no rights with respect to project planning.

Once the Forest Service proposes a project that is designated as an “authorized emergency measure,” it must analyze only two alternatives—Action (carrying out the project) and No Action (not carrying out the project)—rather than a range of alternatives, including a conservation alternative. The appeals process is not permitted, and courts are instructed not to issue an order for an authorized emergency measure unless the court determines that the plaintiff’s case is likely to succeed on the merits.

The Infrastructure Act includes $3.5 billion in funding for “wildfire management,” and to implement the law, the Forest Service issued its Wildfire Crisis Strategy, which currently lists 21 “priority landscapes” and 250 “high-risk fire areas” in the West that are considered potential emergencies requiring emergency response. These landscapes were designated by the Secretary of Agriculture without any NEPA process. With additional funds from the Inflation Reduction Act, the Forest Service has stated that its current goal is to implement treatments in 134 of the designated high-risk fire areas, representing 45 million acres. To date, nearly one million acres of vegetation treatments have been approved or proposed under authorized emergency response measures.

The Infrastructure Act was signed into law nearly three years ago, in 2021. What recently focused my attention on Section 40807 was the receipt of another Forest Service notice for a large-scale logging and prescribed burning project in northern New Mexico: the Taos Canyon Forest and Watershed Restoration Project. This 210,000-acre project area is located just southeast of Taos, New Mexico, in the Carson National Forest.

Much of the forested landscape of northern New Mexico lies in “priority landscapes” or “high-risk fire areas,” meaning that the Forest Service has given itself the ability to grant emergency authority for almost any vegetation management project in northern New Mexico.

I was shocked to read that the Taos Canyon Project was largely an aggressive commercial logging project (54,731 acres to be logged or cut), with no diameter restrictions on the size of trees to be cut, no indication of how many board feet of timber may be cut, no specifications on what species may be cut, 600 acres of timberland, and logging on very steep slopes up to a 75% slope. Steep slope logging has not been done in northern New Mexico for decades because it is so severely damaging to the dry forest floor and the overall ecology of the forest. The Forest Service plans to burn the entire project area, even vegetation types that have historically rarely seen fire. And they plan to continue this project as an authorized emergency response. This “emergency response” will last for over 10 years, even though Section 40807 states that an “emergency” means a situation on National Forest lands for which immediately the implementation of the authorised emergency measure is necessary.

The Taos Canyon Project Scoping Notice states that “past logging focused on the largest, marketable pine, fir, and spruce trees” has altered stand conditions so that they are denser than they historically were, resulting in decreased forest health and increased fire hazard. The answer given to this dilemma, then, is: much more logging of large, marketable trees! One local resident who attended a Forest Service open house about the project was told that the intent is to revitalize the logging industry in the area, including bringing in out-of-state logging companies as needed.

Since the 1990s, most Forest Service projects in northern New Mexico have been primarily thin-from-below projects, meaning that they focus primarily on removing smaller trees, although larger trees are also removed. Such projects are proposed with diameter limits on the size of trees that can be cut, and conservation groups typically then seek to lower the diameter limits to preserve the large fire-resistant trees and to reduce the total number of trees cut so that the ecosystem does not dry out due to the canopy being too open. They advocate that projects be carried out in ways that maintain or even enhance the ecological integrity of forests, rather than decimating the structure and function of forests, turning them into man-made parodies of their former state. As damaging as thin-from-below can be if done too aggressively, the aggressiveness of what the Forest Service is now proposing for the Taos Canyon Project is on a whole other level, almost unthinkable in a warming climate.

This project is a throwback to the dark ages of forest management, from which conservationists have tried for years to emerge into a more enlightened state, with at least limited success. Section 40807 has given the Forest Service the cover to go as far as they want in managing forests with aggressive and widespread tree clearing, leaving behind eroded and compacted forest soils, decimated understory, sediment in waterways, degraded wildlife habitat, and even more ecologically damaging logging roads.

This proposal can only be understood as an attempt by the Forest Service to make full and excessive use of the emergency authority granted to the agency by Congress through Section 40807.

Since Congress is granting this “emergency action” authority to an agency that has clearly strayed far from its legitimate mission, we, the true owners of this country’s national forests, are in trouble. What can we do? We can try to challenge the Forest Service’s clearly ecologically damaging projects, but when they are proposed and implemented as emergency measures, challenges can be very difficult. It is time for a forest revolution. The Forest Service, through this abuse of emergency measures, has tacitly stated that it will provide a cynical facsimile of NEPA analysis that sacrifices the ecological integrity of our forests, and that the public has no choice but to accept this. The NEPA principle of “look before you leap” has morphed into “jump right off the ecological cliff,” without a rational risk/benefit analysis of what we are doing and what the consequences might be.

For a forest revolution to succeed, we don’t have to riot in the streets, we can do it with our minds, voices, keyboards, and votes. But it has to be powerful and fast. And hopefully we can also find a way to defend our forests and communities in court. I see two possible outcomes. The first is that the Forest Service’s near-total control over the planning of forest projects leads to such devastation in our forests and communities that eventually everyone sees that we need to change course. The second is that citizens stand up and tell those in positions of power – those who have been involved in this abrogation of our legitimate rights to truly participate in planning for our forests – that they need to change course now so that we can protect our forests.

What do we need to make this happen?

+ The Forest Service must be able to reasonably explain what emergency circumstances exist for any project they analyze as an “authorized emergency measure,” based on a full range of the best available science.

+ The Forest Service must prepare a programmatic environmental impact statement for the Wildfire Crisis Strategy, as it is a forest management program that involves “multiple actions such as several similar/related projects within a region.”

+ There should be congressional hearings into how the Forest Service has abused its authority under Section 40807 and how it generally spends its fire management money.

+ Congress should amend Section 40807 of the Infrastructure Act to ensure a valid and meaningful NEPA process for all federal land management projects.

Map of Enchanted Circle Priority Landscape, “High Risk Firesheds” and the Taos Canyon Project Area. Map overlay by Jonathan Glass, Public Journal. Source data: US Forest Service.