Speaking of Dubya and flawed environmental policy (see previous post), a federal judge has ruled that changes made last year to Forest Service regulations were altered illegally. The specific change removed the requirement that forest managers survey for endangered or threatened species prior permitting timber extraction.

The administration said the surveys were expensive and time-consuming and had made it impossible for the U.S. Forest Service and Bureau of Land Management to conduct the volume of logging permitted under the Northwest plan.

Judge Pechman disagreed, but not in what I think would have been the most effective manner with respect to existing environmental law. The article is short on details, but seems to indicate that Pechman’s ruling was based on the Federal Government’s failure to properly examine the impact of changing the survey requirement, which they would be required to do by the National Environmental Policy Act (NEPA). NEPA mandates that an Environmental Impact Report be conducted for “major Federal actions significantly affecting the quality of the human environment.” Usually this implies development activities, but policy changes certainly aren’t excluded by the text of the statute.

My inclination would be to suggest that the rule change violated the Endangered Species Act by creating a situation in which listed species might be harmed by logging activities in areas where they were not properly identified (i.e. significant risk of harm to a listed species is tantamount to actual harm to the species). I expect though, that a ruling based on the ESA would be more likely to be appealed since it involves a liberal approach to the takings clause:

ESA §3(18) The term "take" means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct

In light of this loose interpretation, perhaps Judge Pechman’s ruling was the most effective that could be made; it doesn’t sound like the Forest Service is planning on appealing the decision, but rather that they intend to wait for a final order from the court and then search it for loopholes.

I’m gonna try to keep my eye on this one, but it’s not exactly front page news, so if anyone out there sees a relevant item that I fail to comment on, don’t hesitate to forward it to me or just register and blog it in the user blogs section of the site.