Statement Of Senator Patrick Leahy
On the Healthy Forest Act
November 21, 2003

Mr. President, I will oppose the Conference Report on H.R. 1904, the so-called “Healthy Forests Act.”  While I have several substantive concerns about this legislation, let me first speak about the process by which this legislation has come before the Senate. 

As my colleagues know, there has been a significant and growing concern about the way the other side is operating conference committees.  In fact this conference was delayed several weeks because the minority has continually been excluded from conferences. 

However, in good faith, I, along with interested Members and their staffs, worked out an agreement on the first six titles of the bill.  Coincidentally there were only six titles in the House version of the bill.  An agreement was reached on those first six titles, and while I still had serious concerns about the substance of that agreement, I did not object to the process moving forward.  I did so because I was given commitments that we would work out an agreement between the House and Senate on the remaining three titles that were passed by the Senate. 

But what happened next is absolutely astounding.  One half hour before the conference committee was scheduled to meet, I was informed that the conference would only consider the first six titles of the bill, and that the remaining titles that were passed by the Senate were “off the table.” 

Yet another backroom deal was cut by the other side to exclude the minority from any real conference proceedings.     

Mr. President, these were highly important provisions that were passed by the Senate.  Of particular importance to me was the Rural Community Forestry Enterprise Program, which I authored with Senators Crapo and Baucus.  In my State of Vermont we have a good deal of small-diameter trees for which we need help finding markets.  This program would build on the existing expertise of the Forest Service by providing technical assistance, cooperative marketing and new product development to small timber-dependent communities.  Whether it’s producing furniture, pallets, or other creative new markets, this program would help small forest-dependent communities expand economically. 

Backroom deals summarily excluded this, and several other important initiatives in the Senate passed bill, from consideration in the conference committee.  That is why I declined to sign this conference report. 

I will not vote for this conference report because this bill before us remains 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. 

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. 

The bill 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, withholds 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.

This bill makes other significant change to judicial review.  It 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, with these provisions that minimize the public’s input, 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 plays a bait-and-switch trick on communities threatened by wildfires.  It’s not fair to roll back 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 recently faced.  It is a special interest grab-bag shrouded behind a smokescreen. 

We should be offering real help and real answers, instead of allowing 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.

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