Summary of a Recent
Judicial Development in
Environmental Law

Federal Agencies May Determine Best Way to Analyze
Cumulative Impacts of Potential Agency Actions

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In Bark v. U.S. Bureau of Land Management, No. CV 07-1536-MO, 2009 WL 279087 (D. Or. Feb. 5, 2009), the United States District Court for the District of Oregon granted the United States Bureau of Land Management's (BLM) motion for summary judgment. A non-profit organization sued the BLM and the Cascades Resource Area Field Manager to prevent a logging operation in the Upper Molalla River watershed, arguing that the BLM's Environmental Assessment (EA) violated the National Environmental Protection Act (NEPA) and substantive obligations under the Federal Lands Policy Management Act (FLPMA), the Northwest Forest Plan (NWFP), and the Salem Resource Management Plan (RMP). The court held that the government's EA provided a reasonably thorough and useful analysis that explained why the logging project likely would not contribute to cumulative impacts.

Background

Bark, an Oregon non-profit organization, filed suit against the BLM to prevent a logging project in the Upper Molalla River watershed known as the Annie's Cabin Timber Sale. Id. at *1. The sale was intended to remedy past management problems that had caused "less than optimal conditions in the watershed." Id. After soliciting public input, the BLM "prepared and issued" an EA and "Finding of No Significant Impact (FONSI) for the Fiscal Year 2006 Timber Sale Thinning projects in July 2005." Id. at *2. The Final Decision and Decision Rationale (DR) was signed in May 2007. Id. Bark filed an administrative protest to the DR, which the BLM denied. Id. at *3. Bark then filed suit. Id.

Arguments

Bark argued that "the EA fail[ed] to adequately address cumulative impacts from the [sale] both on a general level, and specifically as related to water quality, Northern Spotted Owl habitat, invasive species, hardwoods and biodiversity." Id. at *4.

Analysis and Holdings

Under NEPA, if the underlying regulations do not require an Environmental Impact Statement (EIS), the agency prepares an EA. Id. An EA is designed to provide the evidence necessary to determine whether an EIS is needed or whether preparation of a FONSI would be appropriate. Id. To prepare a FONSI, an agency must "undertake a thorough environmental analysis," which includes examining both the context and the intensity of the environmental impact. Id. at 4 (citing 40 C.F.R. § 1508.27). Evaluating intensity requires considering cumulative impacts, which are defined as "the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions." Id. (quoting 40 C.F.R. § 1508.7).

Bark argued "that the EA fail[ed] to adequately address cumulative impacts from the [sale] both on a general level, and specifically as related to water quality, Northern Spotted Owl habitat, invasive species, hardwoods and biodiversity." Id. However, the court held that "the EA adequately fulfill[ed] the cumulative impact requirement because it provided a reasonably thorough and useful analysis that explain[ed] why the project likely [would] not contribute to cumulative impacts." Id. Specifically, the court held that "it [was] within the BLM's discretion to determine the way to best analyze cumulative impacts as related to other projects, as long as it [gave] the environmental impacts the required hard look." Id. at 6.

The case was decided on February 5, 2009.