Mission Impossible: When the Pressure to Do Something Exceeds the Knowledge of How to Do it Right

Decades of fire exclusion left a terrible legacy. But “fuel reduction” might be reaching a turning point: its own obsolescence.

The Healthy Forests Restoration Act (HFRA) is a 2003 statute epitomizing the state of the art, such as it is, in environmental legislation.  HFRA uses lofty terms—restoration of our federal forests to “health”—and vests meager tools in the administrators tasked with pursuing its impossible goals.  In reality, the U.S. Forest Service and other land managing federal agencies (the National Park Service, BLM, etc.) face the impossible every year: allowing fire back onto a landscape that has long since been over-crowded by wilderburb communities, infrastructure, recreationists, and resource demands that necessitate fire’s continued exclusion from that landscape.  And HFRA’s enactment provided more heat than light, as they say.  The result has been a rather expensive lesson in humility. fuelredux

HFRA Enacted to Help Land Managers ‘Do Something’

A prominent inter-agency dialogue after the 2000 fire season led many to believe the land managers had met their match in a “process predicament”: reducing the risk of catastrophic wildfire by controlled burns, fuel reduction work, and cooperative planning had, in the managers’ view, become too burdened by administrative procedures.  Chief among them: NEPA.

So the 108th Congress and the Bush Administration hatched a plan: a law that would fast track such actions through the typical administrative-procedural gauntlet in order to speed up the agencies’ response times and maneuverability.  HFRA also emphasized that local governments needed to plan—and it created the Community Wildfire Protection Plan (CWPP).  In theory, the federal land managers would target their risk reduction projects in collaboration with communities that create CWPPs and specify their own priorities spatially.  In practice, it has remained hard to judge how thick this collaboration has been.  Little data is collected thereon and even less is shared publicly.

In all events, the Forest Service and others were granted only limited authority to fast-track around NEPA and their other procedures.  HFRA sailed through Congress in no small part because it didn’t cut completely through NEPA.  Approved “hazardous fuel reduction projects” were to receive abbreviated NEPA procedures—in essence, reduced public notice and deliberation requisites, reduced alternatives analysis, and constrained circumstances in which fuller NEPA review was necessary.

Given the treacherous nature of “controlled” burns and their political unpopularity, the Service and others have tended toward “fuels treatments” of various kinds by a wide acreage margin.  But the science behind this approach—whether it is mechanical thinning, understory collection and incineration, or plain old logging to create “fire breaks”—is much less certain than fire planners would have you believe.  Indeed, for the money it costs, there may be much better ways to achieve much better risk reductions says Robert E. Keane in his new book Wildland Fuel Fundamentals and Application (Springer 2015).  Keane gathers the best available science on fuels and reaches some bracing conclusions.  To brutally over-simplify: treatments might be doing more harm than good.  Though they are the only variable in the wildland fire equation that federal land managers can control in any degree, that could be more illusion than opportunity.

Wildland fuelbeds are amazingly complex, composed of many types of fuels with each fuel type characterized by diverse physical and chemical properties. Yet, most fire and fuel studies and management applications try to simplify fuels rather than attempt to understand their complexity. This over-simplification of information often introduces additional uncertainties that may compromise the assessment of fuels in various research and management applications. Moreover, most information on fuels is scattered across disparate journals, government publications, and websites making it difficult for fire managers to fully understand fuel dynamics without expending a great deal of their precious time.

Keane, Fuel Fundamentals at viii.

Litigation can reveal some of this knowledge deficit.  Indeed, one of the Forest Service’s highest profile losses in recent memory came in the Ninth Circuit as a result of this lack of scientific proof.  The Service adopted a massive categorical exclusion (CATX) for fuels projects: anything less than 1,000 acres of mechanical thinning (including logging) and 4,500 acres of controlled burning would be exempt from NEPA.  This “fuels” CATX was struck down by the court as having been adopted without adequate basis in fact or adequate explanation of the inferences from available evidence.  See Sierra Club v. Bosworth, 510 F.3d 1016 (9th Cir. 2007).  But the Service plowed on with fuels reduction projects, much of it categorically excluded from NEPA at much smaller scales than the CATX the Ninth Circuit invalidated.  Drip-by-drip, the money for fuels reduction has kept flowing.

Money Doesn’t Grow on Trees, But Fuels Do

As vegetation has itself become the enemy, more and more federal and state budgetary dollars have gone toward its control.  A recent series in High Country News {$} was some truly admirable reporting on the disaster-managing-fatigue roller coaster to which many Western communities now seem permanently affixed.burning slash piles

Without good scientific proof that fuels treatments mitigate risk, though, the question shifts to their downside risks (even putting aside their substantial cost).  And not enough investigation or research money has pursued those questions.  For example, removing biomass from an environment might, under some circumstances, increase airflow therein and thereby increase the risk of wind-driven fire that could’ve otherwise been oxygen-limited.

This is where the Upper Echo Lake saga comes in.  A fuel reduction project in this sub-lake of south Lake Tahoe was first noticed to stakeholders in 2011.  In 2013, the Forest Service announced that, pursuant to its CATX for fuel reduction projects, it would begin a process of “treating” 100 acres in the Upper Echo Lake basin given its high risk for wildfire.  The plan was to cut and gather understory into piles and burn the piles, leaving the treated area less likely to burn or, at least, burn to a catastrophic result.  It is a drama that has played out in countless places.

But these slash piles are themselves an environmental risk.  And what good is 100 acres of treatment in so vast an area?  Does the treatment really have the longevity needed for such little slices, taken in succession, to add up to much “restoration”?

In sensitive areas—like Upper Echo Lake—these treatments can have serious deleterious effects, fouling wetlands and other sensitive habitats and leaving the landscape worse off than if the understory had been left in place.  And the South Lake Tahoe region is immense, includes a lot of “wildland urban interface,” a lot of diversity in vegetation types, and a lot of needed habitat for the endangered Sierra Nevada Yellow-Legged frog.

So Dennis Murphy, a professor of conservation biology at the University of Nevada and the owner of a seasonal cabin in the vicinity, decided to challenge the Forest Service’s project.  Before his lawsuit could proceed to a judgment on the merits, the Service had changed local supervisors and decided to terminate the project—after the slash piles had been created but before they were burned.  So, as this blog by Murphy’s lawyer documents, there they sit.

The latest from the Forest Service is that the project has been terminated and the lawsuit is, therefore, moot.  {See this story from the Tahoe Daily Tribune.}  If correct, that would deprive the federal court of jurisdiction to hear the matter.

NEPA Relief—Again

I reached out to Murphy’s lawyer, Paul Weiland, about the case and about the relief they are seeking.  He maintains that the court retains jurisdiction and should afford them affirmative relief directly under NEPA, including but not limited to removing the slash piles.  My sense is that will be an uphill battle, but stronger relief for NEPA violations has been granted.  In the meantime, the Forest Service battles catastrophic fire after catastrophic fire and the questions about fuel treatments’ effectiveness add up.  As Keane points out in the final chapter of his book (quoting E.O. Wilson), sometimes a concept is baffling not because it is profound but because it is wrong.  The Service will need NEPA to take that lesson into the rank and file and its stakeholders where fuels are concerned.

{Image: the tragic Biscuit Fire of 2002}

I teach environmental, natural resources, and administrative law at Penn State Law. Before teaching I was an enforcement lawyer at U.S. EPA. Along the way I've done work for environmental nonprofits and written a fair bit about NEPA.
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