The Wildfire Fix? NEPA’s Role in the Forest (Fire) Service’s Nightmare

Fuels grow on trees. Evidence-based decision-making not so much.

A month-long August recess feels like the right time to reflect on Congress’s seeming inability to correct agency procedures, culture, and leadership priorities on wildfire, public lands, and risk.  The intersection of these three has been roiled for years and the most important effort to improve things from Congress hit the forest floor with a “thud” virtually no one heard clearly.  That is, the amendments to NEPA and to U.S. Forest Service operations from the Healthy Forests Restoration Act, Pub. L. No. 108-148, codified at 16 U.S.C. §§ 6501-6591 (HFRA), seem to have fizzled.

A decade out, HFRA’s practical effect on fire risk, agency governance, and the culture’s dominant land use priorities has, in one sense, been localized and minimal.  The Service is still spending around half its annual appropriations on fighting wildfire.  Our “communities at risk” are still growing in number.  And fire seasons annually claim the lives of those on the front lines.  Fuel, after all, grows on trees.

In another sense, though, HFRA’s impact may prove quite profound and long-lasting.  Because HFRA gave legislative imprimatur to the notion—unproven and potentially dangerous—that our wildfire predicament was somehow exacerbated by NEPA and that its solution consists at least partly in cutting through NEPA and other “red tape.”  Before HFRA, this notion traveled quietly in agency circles, bubbled up occasionally to policy-level agency statements, and frequented electoral campaigns and other politicking against “paralysis by analysis.”  After HFRA, it had the moral and legal authority of Congress behind it—whatever that amounts to today.

In a nutshell, HFRA trimmed the alternatives covered projects must evaluate and trimmed the pathways to federal court after a Service decision has been finalized.  These were modest trimmings to be sure.  And other Service efforts to snake around NEPA–like the establishment of a large categorical exception (CATX) for fuel reduction projects–have been turned back in the courts.  See, e.g., Sierra Club v. Bosworth, 510 F.3d 1016 (9th Cir. 2007).

But HFRA also established the central tool for fighting wildfire risk: the “hazardous fuel reduction project.”  According to HFRA, these projects were to be carried out principally in the “wildland urban interface” (WUI). See 16 U.S.C. § 6513(a)-(d).  And while HFRA defined the WUI liberally, it clearly prioritized the removal of fuels from those regions of the forest occupied by structures and people.

With the HFRA-backed attack on fuels in the WUI through “fuel reduction projects” that were, at least to a degree, fast-tracked through otherwise-standard agency routines (including NEPA), the question became ‘where to prioritize this work and why’?  After years of researching the agency’s policies, manuals, directives, and other communications I am fairly confident in reporting that it has no idea.  The Forest Service has had plenty of time to collect data and anecdotes on fuel reduction, too.  Slideshows like this one document what a stand of trees can look like before and after a mechanical thinning like the one shown above.  (Notice that prominent throughout is the retention of “large” trees and the removal of small trees and undergrowth.)

Still, actual data about projects that have “succeeded” do not yet exist.  The Service will tell you that it has mildly suggestive evidence of projects’ reducing fire risks, but none of this work has been published or peer reviewed.  This makes a real NEPA routine analyzing some fuller course of fuel reduction actions, collecting public input and all available information, surveying experts outside of and not necessarily aligned with the agency, and the possibility of real judicial review on the back end, all the more urgent.  Yet no such “programmatic” EIS on fuels and fire risk reduction has been forthcoming.

This is a growing and distinct tragedy of wildfire in the WUI.  We are spending a lot of money collectively on fuel reduction without really knowing whether and, if so, how it is affecting overall risk.  Flood insurance may offer a good comparison, though.  Private flood insurance usually reflects the estimated risk and is, therefore, unaffordable in many flood-prone areas.  A federal substitute created in the 1960s-70s eventually came to a political reckoning of sorts: it finally seemed stupid (for a time at least) to a majority in Congress to offer federal subsidies to those who willingly put themselves in harm’s way.  The National Flood Insurance Program was therefore overhauled in 2012 to better tie premiums to risk, although the ways of Congress’s dysfunction have since set upon even that common sense measure.

The Forest Service’s massive subsidization of wildland sprawl–with projects that might not even reduce risk all that much–is now in full swing.  And cutting out or trimming NEPA analyses at the project level may just reflect the lack of available knowledge about how any given project will affect the “human environment.”  The geographers who have worked on mapping the WUI have found it to be incredibly broad and heterogeneous.  A key work by Radeloff & colleagues is available here (finding nearly a third of U.S. homes in 2000 within the WUI).  How is this human geography being re-engineered by our massive public works project known as ‘hazardous fuels reduction’?

In short, the broad-scale questions are another matter–a matter the Service has yet to tackle.  How ought the Service as a whole be planning its management of the public lands/wildfire/risk intersection?  Other aspects of HFRA, especially the community wildfire planning it encourages, are important but beyond our grasp here in the present.  The locally-based wildfire protection planning HFRA encourages is a complicated interplay of state, federal, and local authority (and priorities).  Public lands experts will tell you that re-introducing fire to fire-adapted ecosystems must be a priority.  Yet, as I argued in a law review article in 2012,

[r]estoring fire-adapted ecosystems, whether by reintroducing fire or by use of “fire surrogates” like mechanical thinning, is incompatible with risk-based fire management in the WUI as a practical matter.  Singly and jointly, the federal land managers battle this reality constantly.  For now, fires are simply too unpredictable and land managers too risk-averse and/or too incapable of shaping public attitudes for widespread use of prescribed burns in or near WUI communities.  Mechanical treatments are simply too costly to be as widespread as they would need to be to measurably advance a restorative agenda.  Thus, a spatially explicit version of any [national] plans or strategies, their component “goals” or “guiding principles,” would surely end in the kind of conflict that still blocks comprehensive legislation on wildfire. The alternative is a “collaboration framework” where people in authority are conditioned to dissemble on core questions and leave major commitments—like actually reestablishing fire regimes in defined regions—in provisional form. [notes omitted]

But matters are growing more urgent.  Out-of-season fires of unprecedented severity in California, Colorado, Arizona, and Alaska are making fighting catastrophic wildfires a year-round business.  It is no longer uncommon for hundreds of homes to go up in these blazes, leaving the Forest Service in quite a bind.  If, as many suspect, we’re looking at 10-12 million acres burned in 10,000 wildfires per year, the sheer cost of fire-fighting, evacuation, and rehabilitation will continue to swamp both state and federal budgets.  And that has nothing to do with prevention.  Though the money spent on preventing catastrophic wildfire has remained relatively flat over the last decade, fire-fighting budgets overall have ballooned from about a quarter of a billion dollars in 1993 to over $1.8 billion last year.

Shouldn’t a programmatic NEPA analysis of some kind have to take stock of how overall fire risk is being managed in conjunction with the “environmental” goal of restoring fire to fire-adapted ecosystems?

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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