05/06/2020 - Legal Analysis - Student Work

Interior Rolls Out Controversial E-bike Rules

by Peter Daniels, JD 2021

On April 2, 2020, the Department of the Interior proposed new rules regulating the use of electric bikes (e-bikes) on public lands. E-bikes are motor-assisted bicycles controlled with a handlebar throttle or activated through pedaling. E-bikes’ ambiguous position between traditional bicycles and motorcycles has led to controversy over whether e-bikes should be permitted on non-motorized roads and trails. The proposed rules came on the heels of a secretarial order expanding e-bike access to increase recreation opportunities and accessibility of public lands to seniors and others with limited mobility. Environmental groups have pushed back, pointing to potential negative environmental and recreation impacts of allowing e-bikes on non-motorized roads and trails.

Background

On August 29, 2019, the U.S. Secretary of the Interior issued Secretarial Order 3376. The Order established definitions of different types of e-bikes based on their assistance and speed capabilities, and it directed the National Park Service (NPS), the Bureau of Reclamation (BOR), the Bureau of Land Management (BLM), and the Fish and Wildlife Service (FWS) to incorporate e-bikes into their governing regulations.[1]

Order 3376 states that: “E-bikes shall be allowed where other types of bicycles are allowed; and E-bikes shall not be allowed where other types of bicycles are prohibited.” The Department hopes that this policy will reduce agencies’ “restrictive access policies treating e-bikes as motor vehicles,” and will “expand[] access to recreational opportunities, particularly to those with limitations stemming from age, illness, disability or fitness.”

Agencies first responded to Order 3376 by issuing informal guidance documents.[2] By not going through notice-and-comment rulemaking, the agencies could implement the Order without receiving input from experts, stakeholders, and the public. While agencies often use informal guidance for minor changes in recreation policy, significant changes such as transportation plans and vehicle access, are usually made through rulemaking.

NPS’s guidance directed park superintendents to insert specific language regarding e-bikes into park-specific rules and documents, which many parks have done (Cuyahoga Valley NP, Arches NP, and Acadia NP, for example). BLM, FWS, and BOR all directed their officers to allow e-bikes wherever traditional bicycles are permitted. BOR alone stated that e-bikes were still considered “off-road vehicles.”

The Proposed Regulations

The four agencies proposed their new regulations in April 2020, and the rules are open for public comment until early June:

Overall, the proposed rules operate in lockstep. Each rule defines e-bikes distinctly from “motor vehicles” or “off-road vehicles.” The proposed rules generally treat e-bikes like traditional bicycles so long as the e-bikes are used in pedal-assist mode. Consequently, e-bikes are allowed where traditional bicycles are allowed, rather than being limited to areas open to motor vehicles.

Two Noteworthy Features of the Rules: Definitions and Implementation

More Powerful E-bikes. The proposed definitions include more powerful e-bikes than did the informal guidance, and they diverge from the only existing statutory definition. The Consumer Product Safety Act defines “low-speed electric bicycles” as those with motors under 750 watts. The proposed definitions, in contrast, include those up to and including 750 watts, or just over one horsepower. NPS argues that the new definition avoids “the unintended consequence of excluding many devices from the regulatory definition of an e-bike due to a one watt difference in power.” But this seemingly small change is hugely impactful. E-bike manufacturers generally offer e-bikes at 250-watt increments: e.g., there are 250-watt, 500-watt, 750-watt, and 1000-watt e-bikes. The statutory definition excludes higher-powered classes of e-bikes. The agencies, in changing the limit by a single watt, are effectively increasing the power of permitted bikes by 250 watts.

Differences in Implementation. BLM, FWS, and BOR’s rules create an opt-in system. The rules encourage agency officials generally to allow e-bikes where traditional bikes are already allowed, but an agency official must still decide whether to allow e-bikes for each individual area. NPS, in contrast, created an opt-out system, permitting e-bike access by default until an NPS official acts to restrict it. As of April 8, 2020, 380 units of the national park system (91%) had already implemented the NPS’s informal guidance. Since so few units remain, the NPS proposed rule therefore focuses on allowing park superintendents to restrict e-bike recreation at their discretion (but discourages them from doing so).

Avoiding NEPA Review

The proposed rules circumvent meaningful review under the National Environmental Policy Act (NEPA) of the environmental impacts of expanded e-bike use. NEPA requires agencies to perform environmental reviews of their actions­­—sometimes very lengthy (Environmental Impact Statements), and sometimes less in-depth (Environmental Assessments). NEPA’s two fundamental purposes are to compel agencies to: (1) consider the environmental consequences of and potential alternatives to proposed actions; and (2) provide information that allows the public to fully participate in the decision-making process.  Still, for most actions, agencies classify the actions as falling within a “categorical exclusion” to minimize NEPA review. Categorical exclusions are actions pre-determined not to have any significant impact on the quality of the human environment. Each of the proposed e-bikes rules relies on the same categorical exclusion from 43 C.F.R. § 46.210:

  • Policies, directives, regulations, and guidelines: that are of an administrative, financial, legal, technical, or procedural nature; or whose environmental effects are too broad, speculative, or conjectural to lend themselves to meaningful analysis and will later be subject to the NEPA process, either collectively or case-by-case.

FWS, BLM, and BOR all reason that, because the proposed rules only direct agency officials to implement the policy, the categorical exclusion applies at this stage; NEPA analysis may still be required when each agency official makes a decision about each specific area. NPS’s proposed rule notes that categorical exclusions applied in “most units” that already implemented the NPS policy, because the environmental impact is only that of including e-bikes where traditional bikes were already permitted. Thus, NPS argues a categorical exclusion should apply now.

The agencies’ widespread use of categorical exclusions avoids undertaking a broad programmatic analysis of the impacts of expanding e-bike access to public lands across the country, and limits opportunity for public involvement. NEPA generally requires environmental analysis to be somewhat site-specific, meaning that possible impacts must be considered in each particular area an action will take place. When an action is nationwide or otherwise broad in scope, however, agencies can use programmatic reviews to evaluate the action as a whole. Programmatic reviews are not required, nor are they a substitute for site-specific analysis.[3] They can, however, help an agency take a “hard look” at the widespread impacts of a national policy shift. With no programmatic review, the agency’s site-specific reviews should each include a rigorous review of e-bikes and their impacts.

The Coalition to Protect America’s National Parks argued in a public comment on NPS’s rule that “[b]y segmenting the service-wide implementation of its e-bike policy into literally hundreds of smaller actions, NPS has, in effect, neatly avoided conducting a necessary and thoughtful NEPA analysis of the potential impacts of introducing e-bike use onto existing park bicycle trails.” The Coalition also cited research indicating that, along with increasing road and trail traffic, permitting e-bikes would increase the average speed of bicycles in those areas, require expanding trails and other infrastructure improvements due to the decreased turn radius of e-bikes, and elevate the risk of serious accidents. The use of categorical exclusions and submission of comments like the Coalition’s suggest that these rules, when finalized, will likely be subject to litigation based on NEPA and other statutes.

Public Response to Interior’s E-bike Policies

Some environmental groups have publicly opposed permitting e-bikes on non-motorized trails on public lands, including prior to Order 3376. At least two lawsuits have been filed recently with regard to e-bikes on public lands. The first, filed on October 23, 2019, challenged the Forest Service’s decision to permit e-bikes on non-motorized trails in the Tahoe National Forest. This suit was settled on April 1: the national forest has clarified that e-bikes are no longer permitted on non-motorized trails.

In the second suit, filed December 5, 2019, a coalition of environmental groups including Public Employees for Environmental Responsibility and Wilderness Watch sued NPS in federal district court following NPS’s publication of its informal guidance. Among other claims, the suit argues that by publishing the guidance and approving e-bike use before amending the pertinent regulations (36 C.F.R. §§ 1.4, 4.30), NPS violated those regulations and the Administrative Procedure Act’s required rulemaking procedures.  The environmental groups also argue that NPS’s lack of environmental analysis violated NEPA’s procedural requirements, and that its reliance on an industry-dominated advisory group (since disbanded) violated the Federal Advisory Committee Act.

Implications

The Department of the Interior’s proposed e-bikes regulations will significantly impact public lands recreation. The blending of e-bikes and traditional bicycles ignores differences between the two that should impact land management policy, particularly the motorized/non-motorized distinction that drives significant portions of trail and land access regulation. Environmental and recreation groups maintain that “[n]on-motorized trails were created to ensure that the public could find recreational trail opportunities free from the ever-growing motorization and mechanization,” and that “[o]pening non-motorized trails to motors would forever change the backcountry experience for these users.”

Take NPS as an example. According to NPS’s Transportation Planning Guidebook, having limited opportunities for non-motorized travel is one of “the three most commonly encountered transportation challenges” in national parks. NPS therefore designates certain trails and areas—and sometimes certain times of day—for nonmotorized use only. The mixing in of e-bikes with traditional bicycles blurs this distinction. For recreationists, increased potential traffic and speed of e-bikes creates both higher risk of personal injury and a different visit experience.

Increased e-bike traffic in non-motorized areas will increase environmental degradation and human impact. Even restricting e-bike access to certain classes of e-bikes or only permitting them to be operated in pedal-assist mode (as opposed to via a motorcycle-esque throttle) would not likely alleviate these impacts, since the land management agencies don’t have sufficient resources to effectively police e-bike use. Instead, the agencies should recognize that, whether the motor is engaged by a thumb, crank of a wrist, or push of a foot, e-bikes are motorized vehicles that should be restricted to areas dedicated to such use.


[1] The other primary land management agency in the United States is the U.S. Forest Service. Because it is within the Department of Agriculture and not Interior, the Forest Service is not subject to this order. Under the previous administration, the Forest Service issued a briefing paper and internal guidance concluding that, since they had motors and were “self-propelled,” e-bikes were motor vehicles and permitted only on roads and trails where other motor vehicles are permitted.

[2] NPS responded to the order quickly, issuing Policy Memorandum 19-01 the following day. The remaining three land management agencies issued guidance on October 22, 2019, following Secretary Bernhardt’s order to do so. BLM issued an Information Bulletin and FAQ directing BLM land managers to authorize the use of all classes of e-bikes on BLM lands wherever traditional bicycles are permitted. FWS issued guidance as well, along with Director’s Order No. 222 pursuant to SO 3376. Both allow e-bikes where traditional bicycles are permitted, and do not classify e-bikes as off-road or motor vehicles. BOR issued public guidance and a detailed FAQ, and revised its internal Reclamation Manual, also allowing e-bikes where traditional bicycles are permitted.

[3] See Kleppe v. Sierra Club, 427 U.S. 390 (1976); Final Guidance for Effective Use of Programmatic NEPA Reviews, 79 Fed. Reg. 76,986 (Dec. 23, 2014).