This article was originally published The Federalist Society.
This year is shaping up to be a doozy for wildfires. Already, more acres have burned this year than all of 2023, and we’re only just entering late summer’s peak wildfire season. Fires have forced the evacuation of tens of thousands, closed national parks, and done untold environmental damage.
There are many reasons why there are more fires burning bigger and more intense today than in decades past: climate change has increased drought and expanded the “fire season,” expanded development near and recreation in forests has increased opportunities for fires to start, mismanagement has led to unhealthy forests vulnerable to insects and disease, and decades of fire suppression have caused a dangerous level of fuel accumulation.
Environmental law plays a significant role too, by helping to exacerbate this unprecedented fuel build-up. Laws intended to protect the environment can paradoxically jeopardize wildlife habitat, air and water quality, and forest ecosystems. The reason: those laws were designed to stop or slow public or private action that can have environmental impacts, giving short shrift to the environmental consequences of inaction and delay.
We’ll have to cut down more trees for all this paperwork
While most of the public debate over the National Environmental Policy Act and permitting reform focuses on energy development and infrastructure, those are the outliers. The much more common NEPA conflict is over the Forest Service’s efforts to use mechanical thinning and prescribed fire to restore forests. According to the Environmental Protection Agency’s NEPA database, no federal agency has prepared more environmental impact statements—the most intensive level of NEPA review—than the Forest Service over the last 5 years.
That bureaucracy takes a toll on the Forest Service’s ability to get work done. In 2022, two of my colleagues with the Property and Environment Research Center produced a study finding that it takes more than a year, on average, for a forest restoration project to navigate the NEPA process. If an environmental assessment is required, the average delay is 1.5 years. If an environmental impact statement is required, the average is over 3 years. Projects that are litigated spend an additional two years in this process. And this is in addition to other sources of delay, such as restrictions on the timing of an activity or the need to secure funding or workforce capacity. Taking all these into account, the average delay for a prescribed fire project that requires an environmental impact statement and is litigated from initiation to when treatment begins is over 9 years.
NEPA litigation is also a serious problem for forest restoration. The Breakthrough Institute has a new study showing that the most common subject of NEPA litigation isn’t highway construction or fossil fuel extraction but land management projects, especially forest management projects. These represented nearly 40% of the NEPA cases that reached the circuit courts between 2013 and 2022. An earlier study by my organization found that this litigation is concentrated in California and Montana, two areas that also have substantial forests vulnerable to wildfire.
The mere threat of litigation compounds the bureaucratic challenge, as Forest Service personnel report that the agency will spend more time analyzing projects in the hopes of “litigation proofing” them. But that’s no silver bullet. No matter how long a NEPA analysis is, it can always be criticized for not analyzing some issue in more depth. And it’s common for projects backed by hundreds of pages of environmental analysis and hundreds of pages more of appendices and supporting studies to nonetheless be challenged as insufficient.
These inefficiencies and disruptions have a significant environmental toll. In 2011, the Forest Service proposed a 10,000-acre forest restoration project in the Klamath National Forest. Citing potential harms to northern spotted owls, activists drew out the environmental review process for a decade. Ultimately, any short-term impacts on owls of mechanical thinning and prescribed fire pale in comparison to the effects of the Antelope Fire, which burned through the area and destroyed the owl’s habitat in 2021.
Wildlife can’t wait
The Endangered Species Act, too, can be a challenge for forest restoration. In 2015, the Ninth Circuit decided Cottonwood Environmental Law Center v. Forest Service, holding that the Forest Service must perpetually reconsult with the U.S. Fish and Wildlife Service any time a new species is listed, critical habitat is designated, or other “new information” arises about a species that resides in an area covered by a forest plan. It did not matter, according to the court, that these plans act as only a high-level guide for future land management decisions and have no on-the-ground impacts, or that any future project with such impacts would have to undergo its own consultation. The agency must nonetheless pursue an unnecessary and duplicative process or else potentially have all of its work in the area grind to a halt.
The Obama administration urged the Supreme Court to reverse the decision, emphasizing that it conflicts with Supreme Court and Tenth Circuit precedent holding that reinitiation of environmental reviews is not required for completed actions. It also stressed the impact the decision would have on the Forest Service’s ability to maintain healthy forests and conserve wildlife habitat, writing that the decision “has the potential to cripple the Forest Service and BLM’s land-management functions” and to distract the Fish and Wildlife Service from working to recover listed species.
When the Supreme Court declined to take the case, Congress passed a temporary fix that insulated the Forest Service from the impacts of the Ninth Circuit’s decision for 5 years, a fix that expired last year. The Biden administration has warned that Cottonwood threatens to obstruct forest restoration across 87 national forests while the Forest Service spends “somewhere between 5 and 10 years and tens of millions of dollars” reconsulting with the Fish and Wildlife Service.
Such delays can matter dearly. In 2019, litigation shut down all fuel management in national forests throughout Arizona and New Mexico while the Forest Service reinitiated consultation, delaying a planned prescribed fire in the Santa Fe National Forest. When the project was finally allowed to proceed, it sparked the Hermits Peak fire that destroyed several hundred homes and hundreds of thousands of acres of wildlife habitat. In its report on the incident, the Forest Service found that the injunction contributed to the prescribed fire being carried out in conditions that were worse than when the project was originally planned.
Getting hazy
Another source of friction is the Clean Air Act. Earlier this year, the Environmental Protection Agency made more stringent federal standards for particulate matter. The largest source of particulate matter pollution is wildfire smoke. Fires don’t wait for a federal permit, obviously. So the EPA generally allows states to exclude wildfire smoke from their compliance reporting. One of the best tools for reducing wildfire smoke, prescribed fire, is subject to the tighter standard, however. Paradoxically, the regulations risk penalizing states and landowners for actions that improve air quality, while ignoring that the biggest harm to air quality comes from doing nothing and letting forests burn.
When the new standard was proposed, California’s congressional delegation urged EPA to consider how its decision would affect landowners and land managers’ use of prescribed fire. So too did the National Association of State Foresters and the National Association of Forest Service Retirees. Ultimately, EPA acknowledged the need to address barriers to prescribed fire, but lowered the regulatory standard without addressing that problem first. Now, EPA, states, and landowners are trying to figure out how to maintain progress on prescribed fire, but with no clear answers yet.
Conclusion
The Forest Service faces an 80 million acre backlog in needed forest restoration. Whether it can tackle that enormous challenge will ultimately depend on whether the environmental review and permitting process can be made more efficient and litigation can be kept in check. In a world where bureaucracy moves slow and wildfires move fast, it’s little surprise that fire keeps winning.
