At a recent hearing in the U.S. Senate, Democratic Sen. Jon Tester of Montana asked U.S. Forest Service Chief Randy Moore a question that’s been on the minds of many in Montana.
“Congress gave you categorical exclusions,” Tester said. “How do you see the Forest Service using those?”
The answer from Moore: “Quite extensively.”
The term “categorical exclusion” was thrust into the spotlight in Montana last fall after the Flathead National Forest proposed using one at Holland Lake Lodge, where Utah-based resort company POWDR had announced plans to triple the capacity of a historic lodge operating on public land.
Also called a “CE,” a categorical exclusion is the least-rigorous method a federal agency can use to review a project’s potential environmental impacts.
Also called a “CE,” a categorical exclusion is the least-rigorous method a federal agency can use to review a project’s potential environmental impacts. It’s designed for projects that “do not individually or cumulatively have a significant effect on the human environment.”
Many who commented on POWDR’s plan for the lodge, which sits at the edge of the Bob Marshall Wilderness and within grizzly bear range, said the proposal deserved more than a quick look — including Sen. Tester.
“I would never, ever, ever have voted for a categorical exclusion for the purpose of making some corporation rich off our public lands,” Tester said in the hearing. “Never gonna happen.”
The Flathead National Forest has since pumped the brakes on the Holland Lake project and has promised a fuller environmental review in the future. But, its initial proposal to use a categorical exclusion echoes a trend environmental advocates have worried about for years — the Forest Service appears to be conducting fewer environmental analyses across a widening range of project types.
Those advocates, like Patrick Hunter with the Virgina-based Southern Environmental Law Center, say more categorical exclusions may improve the Forest Service’s efficiency, but at the cost of additional public input.
“It’s not good news for the public, and I think it’s going to lead to worse decisions by the agency,” Hunter said in an interview.
Environmental policy’s “Magna Carta”
Proposing a categorical exclusion is one early step on a winding path outlined by the National Environmental Policy Act, or “NEPA.” Signed in 1970 at the height of the green movement, the act requires all federal agencies to consider how an activity on public land could impact the environment.
Hilary Eisen, policy director at nonprofit Idaho-based Winter Wildlands Alliance, said the law was a huge leap forward for transparency in government.
“NEPA is kind of considered to be the ‘Magna Carta’ of America’s environmental laws,” she said in an interview with MTPR.
Eisen said public lands decision-making used to be a black box with little to no public involvement. NEPA changed the game, forcing federal agencies to announce project proposals, solicit input on their potential environmental impacts and provide evidence the agencies weighed those impacts before making a final decision.
The policy applies to hundreds of projects within national forests every year, including prescribed burns, trail maintenance, recreation permitting, logging and more.
The core of NEPA is its three levels of environmental review. While “environmental assessments” and “environmental impact statements” involve months or even years of scoping, study, draft decisions and public comment periods, categorical exclusions are designed to save an agency time and resources by approving projects that are known to not have substantial environmental effects.
Those projects are grouped into “categories” of actions that, in Forest Service policy, include things like maintenance at district ranger offices and trail improvement projects. But, those categories can go a lot further than mowing the lawn.
The Forest Service has more than two-dozen categorical exclusions at its disposal, covering everything from rehabilitating land after a wildfire and short-term mining exploration, to renewing a ski hill’s permit to operate, and logging projects under a certain number of acres.
Those familiar with NEPA say categorical exclusions are an essential tool in any federal agency’s kit. But, some environmental advocates say they’re concerned that tool is being used too often and out of proportion with its original purpose.
Those familiar with NEPA say categorical exclusions are an essential tool in any federal agency’s kit. But, some environmental advocates say they’re concerned that tool is being used too often and out of proportion with its original purpose.
Exclusions on the rise
Susan Jane Brown has spent years litigating Forest Service NEPA decisions. The Oregon-based lawyer with the Western Environmental Law Center, which operates in Montana, said she’s been tracking a “disturbing” trend.
“What you’re seeing is sort of a part of a pattern of an increased proliferation of the use of categorical exclusions by the Forest Service for all aspects of mission-critical work,” Brown said.
Other lawyers and advocates, like Hilary Eisen, echo Brown. It’s difficult to put a number to that proliferation — the Forest Service doesn’t publish data on its NEPA decisions — but a 2019 filing in the Federal Register indicated that categorical exclusions were used in nearly 84% of the Forest Service’s decisions in the previous five years. Brown said that rate was less than 50% about two decades ago.
But, Brown added she’s more concerned about the Forest Service’s ongoing expansion of the types of projects that qualify for exclusion from rigorous environmental review.
In 1980, the Forest Service had five categorical exclusions at its disposal covering things like changes to agency policy, project scheduling and road maintenance. Today, the agency employs 25 exclusions, including four new categories added in 2020 to allow timber harvesting of up to 2,800 acres and the construction, reconstruction and demolition of recreational infrastructure, among other examples.
The Southern Environmental Law Center — which attorney Patrick Hunter works for — is currently litigating the expanded exclusion for logging. Hunter said 2,800 acres is more than the Forest Service logs on an annual basis in Tennessee, North Carolina, Georgia and Virginia combined.
Hunter said his organization’s concern is that the Forest Service’s new rule could exclude much of the entire southeastern region of the country from thorough environmental review of logging proposals.
“I know there’s pressure on the agency to do more with less, but I’m not sure this is going to move the ball very far in that direction,” Hunter said.
Doing more with less
Hunter, Brown, Eisen and others familiar with the Forest Service’s NEPA policies told MTPR it’s difficult to determine why the use of categorical exclusions within the agency is on the rise.
The Forest Service did not agree to an on-the-record interview for this story.
Brown and others said one reason could be a lack of capacity within the Forest Service to execute resource-intensive environmental analyses. They said demands on the Forest Service have only gone up over time, while the agency’s budget hasn’t grown to match those demands. In 2015, the number of management staff on national forests had contracted by almost 50% since the late '90s, while the number of wildland firefighters more than doubled, according to slides from an agency presentation obtained by MTPR. Categorical exclusions can ease that load by expediting projects and reducing the agency’s backlog.
There’s also pressure coming from the top for land managers to use more of the NEPA tools at their disposal. In a 2022 letter, Forest Service Chief Randy Moore urged regional foresters to use “the most expedient process available” to conduct environmental reviews for wildfire mitigation work after Congress granted the agency new categorical exclusions in the Bipartisan Infrastructure Law.
A Forest Service representative did not answer MTPR’s questions about the agency’s increasing use of categorical exclusions. But, one former forester says that uptick doesn’t necessarily indicate abuse of the National Environmental Policy Act.
The exclusion at Holland Lake
Sharon Friedman was the assistant director of NEPA in the national Forest Service office in the early 2000s. Today, she continues to track environmental policy changes and runs a Forest Service news blog called “The Smokey Wire.”
In a phone call, Friedman said the Flathead National Forest was within its rights to propose a categorical exclusion at Holland Lake Lodge if it thought it was appropriate, and the public has the right to give feedback on that decision.
More than 6,600 people submitted online comments on the proposal during its public engagement window last fall. Many, like the Winter Wildlands Alliance’s Hilary Eisen, took issue with the specific categorical exclusion the Flathead Forest proposed — it suggested using one of the new exclusions from 2020 intended for changes to infrastructure at recreation sites.
The exclusion’s language lists examples like constructing a shower facility, fishing pier or campsite. The proposal at Holland Lake Lodge included the construction of a new 28-room lodge and more than two dozen new cabins.
“If you look at the way in which that categorical exclusion was written, in my opinion — and I think others share this — is that it is intended for much more minor projects,” Eisen said.
Friedman takes a different perspective. She said using a categorical exclusion should be a policy-based decision, and that planners often move up to stricter levels of environmental analysis because they think doing so might avoid lawsuits and appease the public.
“As far as I’m concerned, this whole thing isn't about CEs at all,” Friedman said. “It’s, ‘We don’t trust them. We think the Forest Service is sneaking around.’”
Friedman said she believes opposition to the expansion of Holland Lake Lodge will likely persist, regardless of the level of environmental review the Flathead Forest chooses, should the project move forward.
In an emailed statement, Forest Service spokesperson Daniel Hottle said POWDR has submitted an application for a new permit at Holland Lake Lodge. If that permit is approved, the ball will once again be in the corporation’s court to propose an expansion. That would begin the NEPA process anew — without a categorical exclusion, this time. Flathead Forest supervisor Kurt Steele previously promised the agency would conduct an environmental assessment at a minimum.
