NEPA

Cumulative Impacts. The plaintiffs argued that the “Twin Ghost” timber sale was a reasonably foreseeable project, and therefore should have been considered in the EIS for the Twentymile timber sale. They cited an email in the administrative record, in which a Forest Service employee had said – during the NEPA process for the Twentymile project – that the Twin Ghost project was “in the timber pipeline.” The Forest Service responded by arguing that, while they were aware in a general sense that there would be a timber sale in the Twin Ghost area in the future, its timing and scope were too uncertain for it to be considered as a cumulative impact in the EIS for the Twentymile sale. The court agreed with BLM that the EIS was not required to consider the impacts of the Twin Ghost sale:

“Plaintiffs rely heavily on Mid States Coalition for Progress v. Surface Transp. Bd., 345 F.3d 520 (8th Cir.2003). In Mid States, the Eighth Circuit … [held] that ‘when the nature of the effect is reasonably foreseeable but its extent is not, we think that the agency may not simply ignore the effect.’” … The Forest Service, in contrast, relies on Environmental Protection Information Center v. United States Forest Service (EPIC), 451 F.3d 1005 (9th Cir.2006). In EPIC, the Ninth Circuit held that ‘although it is not appropriate to defer consideration of cumulative impacts to a future date when meaningful consideration can be given now, if not enough information is available to give meaningful consideration now, an agency decision may not be invalidated based on the failure to discuss an inchoate, yet contemplated, project.’”
“We agree with our sister circuits that an agency decision may not be reversed for failure to mention a project not capable of meaningful discussion. To the extent plaintiffs are arguing that the Eighth Circuit’s decision in Mid States is in tension with this consensus, we reject their reading of that decision…. It may well be that where, as in Mid States, the challenged cumulative effects are predictable, even if their extent is not, they may be more likely to be capable of meaningful discussion than in a case where the challenged omission is a future project so nebulous that the agency cannot forecast its likely effects. In any event, an agency does not fail to give a project a “hard look” simply because it omits from discussion a future project so speculative that it can say nothing meaningful about its cumulative effects.”
“As the district court noted, some notice of Twin Ghost in the Twentymile EIS would have improved the document. It seems that the better practice would be to err on the side of disclosure, both to aid the public in understanding the Forest Service’s plans and to avoid costly litigation. But without some indication that meaningful analysis could have accompanied this mention, it is not a substantial enough ground to invalidate the EIS and start over. The omission of Twin Ghost does not render the EIS any less of a hard look at the environmental consequences of the Twentymile project or cast any doubt on the conclusions drawn in that report.”