NEPA Review — Still the Land of Deference

Last week, District Judge Ralph Beistline allowed the summary judgment motion filed by the United States Forest Service, and dismissed citizen claims challenging the Forest Service decision to approve an logging project in an old growth area in the Tongass National Forest tongass 2known as Big Thorne.  The case seems interesting because of the deference Judge Beistline showed to the Forest Service.  Reading between the lines of the record, my sense is that the Forest Service may not have gotten it right.  The point is that they were not so wrong as to warrant reversal.

All judges talk the deference talk; not all of them walk the deference walk.

It also seems to me that, based on my purely anecdotal sense of the cases, judges are more willing to defer to agency decision-making under NEPA than under other environmental statutes.  It’s certainly not an absolute; I’ve seen plenty of NEPA cases in which judges refused in practice to defer to the extent that their rhetoric would otherwise seem to have required.  Nonetheless, it would be interesting to know whether a systematic look would confirm my anecdotal assumption.

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