02/04/2021 - Legal Analysis - Student Work

Update: E-Bikes Rules Finalized with Few Changes

by Peter Daniels, JD 2021

After reviewing approximately 57,000 public comments, BLM, BOR, FWS, and NPS finalized rules in October and November regarding e-bike use on federal 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 agencies should permit e-bikes on non-motorized roads and trails. Arguments for allowing e-bikes point to expanding recreational opportunities and accessibility of public lands to seniors and others with limited mobility while environmental groups have raised concerns of negative environmental and recreational impacts. Read more about this background and the proposed rules in our previous post on the topic.

All the final rules closely track the proposed rules released in April, and allow land managers to permit e-bikes up to one horsepower or 750 watts on nonmotorized trails and roads where they permit traditional bicycles. The rules are available here:

Summary

DOI’s final e-bike rules are largely consistent with each other and devolve to individual land management units the task of determining whether e-bikes should be treated like traditional bicycles. The implied presumption is that they should be. The agencies declined to do any programmatic NEPA review, so if any NEPA review of e-bikes occurs, it will be at the site-specific level. Most site-specific applications may be covered by categorical exclusions, though, due to their individually minimal impacts. And as the agencies recognized, the body of literature on e-bikes is still developing, so assertions at this point regarding the impacts of e-bikes may yet be speculative. This case-by-case authorization of e-bikes may result in a patchwork of e-bike regulation across federal lands, with permissions varying not only by agency, but by unit.

Change from Proposed to Final Rules

Along with minor stylistic and structural changes, the agencies revised the proposed rules in only one substantial respect. Whereas BLM, FWS, and NPS proposed to generally prohibit using e-bikes’ motors without also pedaling, the final rule prohibits doing so “for an extended period of time.” This language had been included in BOR’s proposed rule. The agencies included this change to allow some uses of this “throttle-only” function, explained NPS, such as “for a quick burst of power to climb a hill, or to move safely through an intersection.”

Analysis: The Agencies’ Responses to Public Comment

Though the agencies largely preserved the proposed rules, their responses to comments (as mandated under the Administrative Procedure Act) were revealing. For example, regarding the above change, some commenters pointed out that restricting cyclists from using the throttle-only function might be difficult to enforce. Law enforcement officers are rarely present on many trails, for one thing, and it is hard to tell when cyclists are relying on the throttle-only function or not. NPS responded that these enforcement challenges are “not unique” to e-bikes and that successful enforcement will depend on officers’ judgment, training, and skill.

Along with enforcement challenges, the agencies’ responses to comments revealed two notable themes.

First, the agencies emphasized that the final rules are not self-executing. None of the rules purport to mandate the use of e-bikes in any part of the National Park System, National Wildlife Refuge System, or other public lands. Instead, the rules allow individual superintendents, refuge managers, or other officials to permit e-bikes where traditional bicycles are permitted on a case-by-case basis. The agencies regularly referred to this fact, especially in response to any comments regarding the on-the-ground impacts of the rules, such as impacts on natural resources and recreation. The rules have no on-the-ground impacts, the agencies argued, because land managers must still make the case-by-case decision to permit e-bikes.

This case-by-case authorization may be in tension with the purported intent of Secretarial Order 3376, which directed the agencies to make these rules. S.O. 3376 intended to “simplify[y] and unif[y] regulation of electric bicycles” on federal public lands. A scheme where e-bikes were treated identically to traditional bicycles would indeed be simpler and more unified regulation. But assuming land managers take seriously their task of case-by-case authorization, these final rules may lead to a patchwork of regulation where permission to use e-bikes depends not only on which agency manages an area, but which individual manages it.

Second, the agencies are unlikely to engage in any substantial NEPA review of e-bike impacts. As noted based on their proposed rules, the agencies employ a categorical exclusion permitting some “administrative” regulations, particularly those that will be subject to NEPA later and on a case-by-case basis. The agencies argued that because the body of literature on e-bike impacts is still developing and impacts may vary so much depending on the location, the matter is “too broad, speculative, or conjectural” for NEPA review to be appropriate. At the same time, however, the agencies argued that because allowing e-bikes in any particular location is unlikely to have major impacts, categorical exclusions will likely apply on the case-by-case level as well.

For example, NPS argues that a programmatic impact review is unnecessary because the rule’s categorical exclusion “requires a case-by-case NEPA review at the park level before e-bike use could be authorized at any specific park unit.” 85 Fed. Reg. at 69,187. At the same time, NPS notes that, for most park units that have already authorized e-bikes, the units have applied categorical exclusions because the impacts considered were only the differences in impact between e-bikes and traditional bicycles. Id. at 69,186. Allowing some motorized vehicles (or what NPS calls “not nonmotorized,” id. at 69,178) on nonmotorized trails may therefore escape NEPA review at both the programmatic and site-specific levels.

Categorical exclusions do not totally preclude environmental review, and land managers have independent obligations to ensure that recreation does not unduly harm their respective resources. But these rules themselves point out that the literature regarding e-bikes is still developing. What the agencies declined to do at the system-wide level—evaluate the environmental impacts of e-bikes—they are now asking individual managers and offices to do at a site-specific level. Considering that these rules were promulgated under a Secretarial Order that hoped to “unify” regulation and allow e-bikes where traditional bicycles are allowed, it is unlikely that individual park, refuge, and land managers will consistently perform the same level of environmental review that could have been achieved programmatically.

Commenters noticed this, and argued that these rules might result in insignificant changes on the individual unit level, but in significant changes when thousands of units applied the rules nationwide. The agencies largely dismissed this claim. NPS argued that the cumulative impacts would be no more than the sum of the individual impacts, and could therefore be addressed on a site-specific level. FWS asserted that, because the areas where e-bikes could be permitted were “independent” of each other, there would be no cumulative impact. BLM asserted that different units permitting e-bikes pursuant to this rule were not “connected actions” and therefore would have no cumulative impact.