Reducing Wildfire Risk Could Require Legal and Policy Change
Once the wildfires are extinguished and attention turns to recovery, we should explore what can be done to reduce the risk of fires in the future.
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Devastating wildfires are entering their second week in southern California. They have killed at least 24 people, forced more than 190,000 to evacuate, destroyed more than 40,000 acres, and caused an estimated $250 billion to $275 billion in damage.
Unfortunately, catastrophic wildfires aren’t new to California and other western states. And as with so many other news events, there is a legal connection: over the years, the law has shaped efforts to prevent, respond to, and recover after wildfires.
“Whenever you talk to forest managers and fire practitioners, they constantly talk about law and policy as major issues,” said Jonathan Wood, vice president of law and policy at the Property and Environment Research Center. “The legal community has no idea these conversations are going on.”
The Role of Federal Law
Federal law looms especially large. Some of the biggest fires in the history of the western United States have taken place on federal land—which isn’t surprising, given the government’s vast holdings. It owns roughly 650 million acres in the U.S., over 90 percent in the western states—an estimated one out of every two acres in the West.
Under two 1976 laws, the National Forest Management Act and the Federal Land Policy and Management Act, responsibility for overseeing these lands rests largely with the U.S. Forest Service (USFS) and the Bureau of Land Management (BLM). It’s challenging work, requiring them to juggle multiple, often conflicting interests: preserving wildlife habitats, safeguarding recreational space, protecting watersheds, managing mining and timber harvesting—and preventing fires.
“Congress has recognized that government agencies like the Forest Service must take action to improve forest health, through projects to reduce the risk of fires that may include prescribed burning and tree thinning,” explained Jeff Beelaert, an environmental lawyer who previously served in the Justice Department’s Environment and Natural Resources Division. (ENRD) He highlighted the Healthy Forests Restoration Act, whose first listed purpose is “to reduce wildfire risk to communities, municipal water supplies, and other at-risk Federal land.”
“Yet statutes are not enough,” he added. “Whenever the Forest Service approves long-overdue treatment projects, they routinely end up stymied by years of litigation.”
Ninth Circuit Litigation
Environmental groups regularly file legal challenges to land-management activities of the USFS and BLM. These cases often wind up in the U.S. Court of Appeals for the Ninth Circuit, the federal appellate court covering nine western states—and for years, the government had a rough time of it.
“There’s a long story to be told about the Forest Service and the Ninth Circuit,” said Andrew Mergen, a professor of environmental law at Harvard Law School. “Some members of the court had a skepticism or distrust of the USFS.”
But a turning point came in 2008, in the en banc decision of Lands Council v. McNair (which Mergen argued as a Justice Department lawyer at the ENRD). Ruling in favor of the USFS, the court rejected an environmental group’s challenge to a logging project in Idaho—and took the opportunity “to clarify some of our environmental jurisprudence with respect to our review of the actions of the United States Forest Service.”
As Judge Milan Smith wrote for a unanimous panel, “In essence, Lands Council asks this court to act as a panel of scientists that instructs the Forest Service how to validate its hypotheses regarding wildlife viability, chooses among scientific studies in determining whether the Forest Service has complied with the underlying Forest Plan, and orders the agency to explain every possible scientific uncertainty.”
“[T]his is not a proper role for a federal appellate court,” Smith continued. “But Lands Council’s arguments illustrate how, in recent years, our environmental jurisprudence has, at times, shifted away from the appropriate standard of review and could be read to suggest that this court should play such a role.”
Since Lands Council, the USFS has fared reasonably well at the Ninth Circuit in environmental cases. And although these issues “don’t fit neatly into a story of Republicans versus Democrats or conservatives versus liberals,” according to Mergen of Harvard Law, the government has probably benefited from the addition to the court of 10 Trump appointees—including two, Judges Ryan Nelson and Lawrence VanDyke, who previously worked at the ENRD.
Unintended Consequences
One problem for the government, however, is that even if it prevails in the end, litigation can tie up land-management projects—including ones aimed at preventing wildfires or restoring forests ravaged by wildfires—for years.
Before undertaking many projects, the government must examine the possible impact to the environment by preparing either an “environmental assessment” or an even more demanding “environmental impact statement.” A 2022 study by the Property and Environment Research Center (PERC) found that an assessment delays a forest-restoration project by 1.5 years on average, while an impact statement does so by over three years.
The Forest Service “will spend more time analyzing projects in the hopes of ‘litigation proofing’ them,” said Jonathan Wood of PERC. But even though an exhaustive environmental assessment or impact statement can help the USFS defend a project once it’s in litigation, preparing such an analysis can’t prevent the filing of litigation in the first place. The PERC study found that the average delay for a fire-prevention project that requires an environmental impact statement and winds up in litigation is over nine years.
As long as the Los Angeles wildfires continue to burn, the focus of government officials must remain on containing fires, saving lives, and preserving property. But once the fires are extinguished and attention turns to recovering from their aftermath, legislators and policymakers should explore legal and policy changes that could help lower the risk of such disasters in the future.
A version of this article originally appeared on Bloomberg Law, part of Bloomberg Industry Group, Inc. (800-372-1033), and is reproduced here with permission.
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