The Permitting EOs Part 3: Shiver Me Timbers

Throwing it back to the 90s

In 1990, as President George H.W. Bush was entering the latter half of his term, the US Fish and Wildlife Service (FWS) listed the Northern Spotted Owl as a threatened species. It was an enormous victory for environmentalists, who had been fighting — at times violently — for protections for the species. But it was also a devastating blow to the logging communities of the Pacific Northwest, who overnight saw 6.9 million acres of federal land declared off-limits.

The listing put President Bush in a difficult position. While he had announced his intentions to be the “environmental president,” he was worried that FWS’s decision would put entire communities out of work. “I’m interested in the owl, but I’m also interested in the American family,” Bush said to a Republican crowd in Portland, Oregon. (Yes, there used to be Republicans in Portland.)

Time Magazine’s 1990 cover. The cover article was entitled “Owl vs. Man.”

In response, the Bush administration tried to craft compromises through a series of interagency working groups and rule proposals to minimize the Endangered Species Act (ESA)’s impact on the timber economy. One of the proposals, notably, was to leverage the Endangered Species Committee — commonly known as the “God Squad” — to exempt certain timber projects from ESA consultation. But it never came to bear. Critics saw these efforts as attempts to water down or stall the owl protections, and thus environmental lawsuits continued, forcing stricter adherence to the ESA.

By the time President Clinton took office in 1993, the spotted owl conflict was so entrenched that a sweeping overhaul was needed. This led to the Northwest Forest Plan of 1994, which covered 24.7 million acres across the Pacific Northwest and aimed to protect critical habitat while “never forget[ting] human and economic dimensions.”

President Clinton and Vice President Gore at the 1993 Northwest Forest Conference. Source: BLM Oregon.

The Northwest Forest Plan met many of its environmental goals. Older forests gained more than 1 million acres within the first ten years; the protections put in place for the spotted owl slowed the species’ decline.

At the same time, the Plan was falling short of its socioeconomic goals. A decade in, timber sales had dropped 46 percent below the Plan’s target levels. Wood products employment dropped by thirty thousand jobs between 1990 and 2000 in the Plan area. Nine years later, EPA economist Ann Ferris estimated that a 1 percent increase in owl-protected area led to a ~0.1 percent decrease in timber employment.

This tension between environmental laws and the US timber industry, then, is decades old. And it forms the backdrop for President Trump’s new executive order: Immediate Expansion of American Timber Production.

What’s in the EO?

The executive order aims to reverse decades of what the administration characterizes as "heavy-handed Federal policies" that have limited domestic timber production. The EO describes increased timber harvesting as essential for national security, energy production (think biofuels), and wildfire prevention.

Many of the order’s directives are general in nature, requiring agencies to develop plans to increase timber sales and “eliminate… undue delays.” But the order identifies two environmental laws in particular for streamlining: the ESA and NEPA.

Endangered Species Act:

First, within 60 days, FWS and Commerce must develop a strategy to speed up ESA consultations for forest management projects. There aren’t many specifics here, but readers of Green Tape may remember that consultation is the most burdensome and heavily litigated provision of the ESA.

Second, agencies must complete the Whitebark Pine Rangewide Programmatic Consultation within 120 days. Programmatic Consultation (more commonly referred to as Programmatic Biological Opinions, or PBOs) are sort of like Programmatic Environmental Impact Statements under NEPA (think Western Solar Plan). Rather than require full ESA consultation for every single project in an area, a PBO allows FWS to cover a broad area or range of activities in a single comprehensive consultation, which in turn establishes criteria for specific projects to meet. Specific projects then face a much simpler process, whereby they often just have to demonstrate compliance with the established criteria.

PBOs have been in use since the late 80s, when the 9th Circuit threw out a PBO for oil and gas leasing due to “deficient consultation.” A PBO was also used for the aforementioned Northwest Forest Plan. This executive order likely identifies the Whitebark Pine PBO in particular due to a) the species’ recent ESA listing in 2022; b) its wide range across Montana and the Pacific Northwest; c) its relevance to timber production; and d) the fact that this PBO process has been ongoing for three years.

Finally, the EO directs agencies to utilize the Endangered Species Committee (the "God Squad") to facilitate timber production. Agencies must make use of emergency consultation authorities where permissible, and Secretary Burgum, as chairman of the God Squad, is tasked with ensuring prompt review of all submissions to the committee.

Will the God Squad be useful? It’s hard to say. The Bush administration convened the God Squad in May 1992 to allow logging on 13 of 44 disputed tracts of timberland that were home to the spotted owl. The Portland Audubon Society sued, claiming that the White House had illegally put pressure on the committee in a series of secret meetings. The 9th Circuit issued an injunction, and that was that.

In other words, the God Squad exemption process can be challenging. But the Bush-era decisions were thrown out on something of a technicality, so it remains possible that the God Squad could be effective over the next few years.

National Environmental Policy Act:

The executive order requires agencies to consider adopting categorical exclusions from NEPA review established by other agencies, with the goal of reducing the cost and timeline of “administrative approvals for timber production, forest management, and wildfire risk reduction treatments.” The authority to adopt categorical exclusions from other agencies is a relatively new one, established by the Fiscal Responsibility Act in 2023, so it will be interesting to see what comes of this provision.

More notably, Secretary Burgum is required to consider and establish a new categorical exclusion for timber thinning. This provision in particular piqued my interest. As readers may have noticed, I have been thinking quite a bit about categorical exclusions lately. Now that CEQ regulations are on their way out, and agencies must rewrite new NEPA regulations, I believe there is an enormous opportunity to develop new categorical exclusions — see my mock guidance here. I’m very curious, then, to see how (or if) Interior chooses to go about developing this new categorical exclusion. What framework will they use to justify it? Will they rely on old CEQ regulations or new agency authorities? We’ll find out soon enough.

Either way, this executive order is a sign that the President is not done pushing on exemptions to speed up development. It’ll be interesting to see where he goes next.