Statement of Senator Patrick Leahy
On The Leahy Amendment To The “Healthy Forests Act”
(Amendment Drawn From Leahy’s “Forest and Community Protection Act”)
Senate Floor
Thursday, Oct. 30, 2003

[Click here to view accompanying charts on HFI and appeals process.]

The people of my State of Vermont, and Americans across the nation, mourn with our colleagues, Senator Feinstein and Senator Boxer, and with the people of California, over the tragic loss of life and property from the wildfires in Southern California. 

We have all been riveted by the vivid images we have watched, day after day, and by the heart-wrenching stories of loss and of bravery that go with these pictures.  Our hearts go out to all of these families that have lost so much.  And our thanks go out to the courageous and diligent firefighters and emergency response team members who are fighting those fires and are doing all they can to protect these communities.

Here in the Congress, we need to do more to protect forests and communities from wildfires.  That is why I introduced the “Forest and Community Protection Act” this summer.  This is a bill and an approach that would make a real difference for communities facing this kind of potential devastation.

The bill before us this now, unfortunately, would not offer the same level of help.  The bill before us is a well-camouflaged attempt to limit the right of the American people to know and to question what their government is doing on the public’s lands. 

When you look at the tidal wave of regulatory changes the Administration has produced in the last year to cut the public out of the process, it could not be clearer that the Administration does not want the public or the independent judiciary looking over its shoulder. 

Communities that face wildfire threats need real help, not false promises. 

As this chart shows, the Administration has been busy creating a broader number of projects that will be excluded from environmental analysis under the National Environmental Policy Act, limiting how, who and when citizens can appeal agency decisions, and even cutting out other agencies, such as the Fish and Wildlife Service, from advising the Forest Service on the impact of the actions on endangered species habitats.

Unfortunately, the bill before us today could be the last in this series of steps that completely eroding the public’s trust of the Forest Service.  Many of us saw the aftermath of the salvage rider on our forests and the public trust.  We should not go down that road again. 

That is why I am offering an amendment today, along with Senators Bingaman, Durbin, Harkin and Boxer, to strike sections 105 and 106 of the bill.  These sections go too far in undermining the decades of progress we have made in public participation and judicial review.

The Administration has worked overtime to try to sell the false idea that environmental laws, administrative appeals and the judicial process are the cause of wildfires.  But they have not been able to back up their scape-goating with facts.  And the facts themselves contradict their claims.

In May, the GAO issued a study examining delays in all Forest Service fuels reduction projects, from appeals or litigation, during the last two fiscal years.  Contrary to what some advocates of this bill will tell you, the results show that neither appeals nor litigation have delayed fuels reduction projects. 

On this chart you can see that out of 818 projects, only a quarter were appealed.  Of those, even fewer took more than the standard 90-day review period.  In fact, only 5 percent of all the projects took more than 90 days. 

And they can’t honestly blame litigation, either, for the delays.  Again, of the 818 projects, only 25 were litigated.  Of those, 10 were either settled or ruled in favor of the Forest Service -- meaning that only 9 out of 818 projects were delayed by court order. 

My friends, that’s only one percent.  Where is the “analysis paralysis” my colleagues like to talk about so much? 

On the ground, these appeals had even less effect.  Of the 4.8 million acres covered by fuel reduction projects, only 111,000 acres were impacted by litigation.  The numbers simply don’t back up the Administration’s assertion that appeals and litigation are delaying projects. 

The bill before us today rolls back environmental protections and citizen rights with no justification at all.

Enough about numbers.  The bill before us is really a solution looking for a problem.  So let’s take a closer look at the “solution” on the table. 

First, the bill would make it much more difficult for the public to have any oversight or say in what happens on public lands, undermining decades of progress in public inclusion. 

In this new and vague pre-decisional protest process, this bill expects the public to have intimate knowledge of aspects of the project early on, including aspects that the Forest Service might not have disclosed in its initial proposal. 

Section 105 gives the Forest Service a real incentive to hide the ball or to withhold certain information about a project that might make it objectionable such as endangered species habitat data, watershed analysis or road-building information.

If concerns are not raised about this possibly undisclosed information in the vaguely outlined “predecisional” process, the Forest Service can argue to the courts that no claims can be brought on these issues in the future when the agency either through intent or negligence withheld important information from the public.  

Essentially, this provision penalizes citizens and rewards agency staff when the agency does not do its job in terms of basic investigation and information-sharing regarding a project. 

The other significant change to judicial review is section 106.  Even under the “compromise” version of H.R. 1904, the provisions will interfere with and overload judges’ schedules.  This section will force judges to reconsider preliminary injunctions every 60 days, whether or not circumstances warrant it.

In many ways, this provision could backfire on my colleagues’ goal of expediting judicial review.  It will force judges to engage in otherwise unnecessary proceedings – slowing their consideration of the very cases that H.R. 1904’s proponents want to fast track.

Moreover, taking the courts’ time to engage in this process will also divert scarce judicial resources away from other pending cases.  It is also likely to encourage more lawsuits.  Requiring that injunctions be renewed every 60 days, whether needed or not, gives lawyers another bite at the apple.  Something they often find hard to resist.

Instead of telling the courts when and how to conduct their business, we should instead be working to find a workable and effective approach to reducing wildfire risks.  This bill does not achieve that, but through sections 105 and 106, it instead poses a real risk to the checks and balances that the American people and their independent judiciary now have on government decisions affecting the public lands owned by the American people.  

Sadly, this bill is just a Halloween trick on communities threatened by wildfires.  It’s not fair to rollback environmental laws, public oversight or judicial review under the guise of reacting to devastating wildfires. 

It will do nothing to help or to prevent the kind of devastation that Southern California is facing.  It is a special interest grab-bag shrouded behind a smokescreen. 

Let us offer real help and real answers, and let us not allow fear to be used as a pretext for taking the public’s voice out of decisions affecting the public’s lands and for ceding more power to special interests.

I hope my colleagues will join me in striking these provisions.

 [Click here to view accompanying charts on HFI and appeals process.]

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