{"id":2641,"date":"2018-04-14T05:24:07","date_gmt":"2018-04-14T09:24:07","guid":{"rendered":"http:\/\/journals.law.harvard.edu\/elr\/?p=2641"},"modified":"2023-07-25T15:57:27","modified_gmt":"2023-07-25T19:57:27","slug":"finding-the-match-in-the-haystack-before-it-lights-up-the-west-again-congress-to-create-a-wildfire-commission","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/elr\/2018\/04\/14\/finding-the-match-in-the-haystack-before-it-lights-up-the-west-again-congress-to-create-a-wildfire-commission\/","title":{"rendered":"Finding the Match in the Haystack Before it Lights Up the West Again: Congress to Create a Wildfire Commission"},"content":{"rendered":"

By Kelly Brantzi<\/em>*<\/a>\u00a0<\/strong><\/p>\n

This post is part of the\u00a0Environmental Law Review Syndicate<\/a>. The original post is linked here<\/a>.<\/em><\/p>\n

Introduction<\/h1>\n

The summer of 2017 set the West on fire, both physically and politically. By early September, the Western states had 65 fires burning at once.[1]<\/sup><\/a> As millions of acres burned\u2014along with the U.S. Forest Service\u2019s (USFS) budget\u2014lawmakers gathered in Congress to create a \u201cfire funding fix.\u201d[2]<\/sup><\/a> Summer 2018 will likely be no different\u2014even after the celebrated passage of the bipartisan 2018 Omnibus spending bill focused on new budget appropriations for wildfire suppression and prevention.[3]<\/sup><\/a> Argued here, the USFS\u2019s budgeting problem represents only one straw in a dry, hot haystack.<\/p>\n

In an opinion published in High Country News<\/em>, retired former USFS Chief Dale Bosworth and retired former USFS National Director of Fire and Aviation Management Jerry T. Williams suggested that, without an investigation into the root-causes of wildfires, federal agencies will remain \u201cbound to convention, [and] .\u00a0.\u00a0. left to suffer the next unimaginable disaster\u201d like the wildfires of 2017.[4]<\/sup><\/a> The USFS does not have adequate legislation to address the full scope of contributory factors of wildfire\u2014namely, national forests\u2019 altered landscapes created by the mistake of allowing 100 years of fire suppression; wildfires exacerbated by unaccounted for climate change contributory factors; and the public\u2019s apparent unwillingness to allow the USFS to correct its mistake by mitigating environmental harms in forests that depend on wildfire for healthy, sustainable ecosystems.[5]<\/sup><\/a> The Omnibus spending bill provides a start to this management paralysis. The USFS needs a \u201ccommission on wildfire\u201d (Wildfire Commission) to find the roots of the problem.<\/p>\n

Bosworth and Williams presented three strong arguments for the USFS\u2019s inability to effectively manage wildfires. First, altered national forests created by na\u00efve land management practices, such as \u201ctake-the-best-and-leave-the-rest-logging,\u201d which created forests dependent on human action for wildfire prevention.[6]<\/sup><\/a> When the USFS suppressed fires, it suppressed the forests\u2019 natural ability to reduce fuel loads, thin trees, and regenerate ecosystems through wildfire, it created a forest dependent on human action to remedy the environmental harms that resulted from that suppression.[7]<\/sup><\/a> Second, without a strong market for \u201csmall-diameter trees and deadfall\u201d cut during wildfire prevention efforts that thin forest understory, the USFS cannot subsidize the woody biomass those mitigating cuts would create.[8]<\/sup><\/a> Third, fire suppression appropriations grossly outweigh those needed for wildfire mitigation.[9]<\/sup><\/a> The second argument could potentially cure the third: subsidizing wildfire mitigation by creating a market for woody biomass might help balance the budget.<\/p>\n

This article uses legislative and historical perspectives to build upon Bosworth and Williams\u2019s suggested solution to create a Wildfire Commission that investigates the fuller spectrum of causal and contributory factors of wildfire, to shift to a new paradigm that includes socio-economic costs, environmental impacts, and historical management of altered, fire-dependent forests.[10]<\/sup><\/a> The Wildfire Commission would allow Congress to create more effective legislation and inform the public that accountability for wildfires extends farther than the USFS.[11]<\/sup><\/a><\/p>\n

First, this article examines the costs of wildfire and Congress\u2019s fire funding fix. Second, this article provides foundational legislative guidance for Congress to establish the Wildfire Commission using the extant annual reporting requirements within the Consolidated Appropriations Act of 2018[12]<\/sup><\/a> (Appropriations Act) and builds off questions addressed by the National Forest Commission of 1896\u20131897.[13]<\/sup><\/a> Finally, this article concludes that a full-scope investigation of contributory factors\u2014if seen through a lens different from the economic-based paradigm that currently exists\u2014elucidates the necessity for a new paradigm that includes socio-economic costs, environmental impacts, and historical management of altered, fire-dependent forests.<\/p>\n

I. Background<\/h1>\n

A. The Costs of Wildfire and the \u201cFire Funding Fix\u201d<\/h3>\n

After visiting several post-wildfire sites in late 2017,[14]<\/sup><\/a> the newly appointed U.S. Secretary of Agriculture Sonny Perdue (Secretary) called upon Congress to create a \u201cfire funding fix.\u201d[15]<\/sup><\/a> The Secretary sought legislation that would fix how the USDA receives and allocates funds to suppress wildfires in two ways: first, by establishing an emergency fund to fight existing fires; and second, by allocating more funding for preventative wildfire management practices that remove \u201cfuel load[s]\u201d[16]<\/sup><\/a> in national forests.[17]<\/sup><\/a> To reduce fuel loads, the Secretary sought to create a categorical exclusion for the USFS to clear \u201cunderbrush\u201d under the National Environmental Policy Act (NEPA).[18]<\/sup><\/a><\/p>\n

Until the Appropriations Act, funding allocations for wildfire suppression and prevention were interdependent\u2014during a fire, the USFS would \u201cborrow\u201d funds from a separate wildfire prevention fund.[19]<\/sup><\/a> Suppression costs rose to over 50% of the budget by 2017,[20]<\/sup><\/a> and wildfires\u2019 severity and impacted acreages mirrored this increase, indicating that borrowing is increasingly untenable.[21]<\/sup><\/a> The USFS wildfire suppression costs alone reached a record $2 billion in 2017.[22]<\/sup><\/a> Without mitigation or better management, wildfires and socioeconomic costs will continue to increase and uncontrollable wildfires will continue to exceed expectations.[23]<\/sup><\/a><\/p>\n

B. The Consolidated Appropriations Act of 2018<\/h3>\n

On March 23, 2018, Congress passed and the President signed the Appropriations Act.[24]<\/sup><\/a> The Appropriations Act contains the Wildfire Suppression Funding and Forest Management Activities Act (Wildfire Suppression Act). The Wildfire Suppression Act directly addressed the Secretary\u2019s call to Congress by creating a new eight-year funding structure, beginning in fiscal year 2020.[25]<\/sup><\/a> Under the new funding structure, the USDA and Department of the Interior (DOI) have an increased budget allowance of $2.25 billion that incrementally authorizes an additional $100 million each year over the following seven years.[26]<\/sup><\/a><\/p>\n

States and counties also benefit from The Appropriations Act.[27]<\/sup><\/a> Congress allocated approximately $200 million to rural counties using a two-year extension of the Secure Rural Schools and Self-Determination Act of 2000,[28]<\/sup><\/a> which provides funding for prevention, restoration, and stewardship projects to rural counties that contain federal land or are near national forests.[29]<\/sup><\/a> The Act also authorizes the DOI and USFS to purchase and acquire privately-held inholdings in areas such as \u201cnational parks, national wildlife refuges, [and] national forests.\u201d[30]<\/sup><\/a><\/p>\n

C. Wildfire Costs Are Neither a Sole Budget Problem nor a Sole NEPA Problem<\/h3>\n

The Secretary\u2019s plea to Congress assumes that this new funding structure and associated grants will allow the USFS will be able to fight fires more effectively.[31]<\/sup><\/a> However, the fire funding fix is limited in two notable ways: first, it only considers fire suppression<\/em>; and second, it only creates a limited categorical exclusion under NEPA in forest management planning processes for areas less than 3,000 acres<\/em>, authorized for \u201cforest restoration treatments\u201d in rural counties, or within the \u201cwildland-urban interface\u201d (WUI).[32]<\/sup><\/a> The latter\u2019s categorical exclusion from NEPA[33]<\/sup><\/a> only applies to the limited acreage requirements of Wildfire Resilience Projects;[34]<\/sup><\/a> it still requires the USFS to prepare an impact statement and annual report that is \u201ctransparent and nonexclusive;\u201d[35]<\/sup><\/a> and does not apply to \u201ca component of the National Wilderness Preservation System,\u201d National Monuments, \u201ccongressionally designated wilderness study area[s],\u201d or areas inconsistent with previously enacted land and resource management plans under section 6 of the Forest and Rangeland Renewable Resources Planning Act of 1974.\u201d[36]<\/sup><\/a><\/p>\n

The Wildfire Suppression Act authorizes funding and exemptions that reduce the time between authorization and implementation.[37]<\/sup><\/a> However, the Act does not address wildfire management, why wildfires have increased so dramatically, and whether they may be contained at all. The DOI and the USFS now need to consider what will happen in eight years when the funding fix expires. The USFS must focus more on regulating human actions in and around national forests, rather than trying to contain the possibly uncontainable\u2014wildfire. A Wildfire Commission should be formed to provide an unbiased answer to these difficult questions.<\/p>\n

II. Creating the Wildfire Commission<\/h1>\n

A. The Wildfire Commission Must Consider Climate Change Factors<\/h3>\n

Our current forest management structure remains at a \u201cdangerous impasse.\u201d [38]<\/a><\/sup> Scientists provide \u201cstrong evidence that regional warming and drying, including that directly attributed to anthropogenic climate change,\u201d contributes to an increase in wildfires\u2019 fire severity, frequency, and length. Climate change causes \u201cincreased frequency of heat waves,\u201d[39]<\/sup><\/a> increased incidents of drought, and extended drought seasons,[40]<\/sup><\/a> all of which contribute to wildfire severity.[41]<\/sup><\/a> \u201c[N]o environmental issue has captured the scientific community\u2019s interest, the media\u2019s eye, the public\u2019s concern, and even the policymakers\u2019 attention more than the climate change crisis.\u201d[42]<\/sup><\/a> Yet, the USFS cannot control these contributory factors. Climate change has changed the world in ways most USFS land-management legislation failed to anticipate.[43]<\/sup><\/a> Unless Congress enacts legislation that authorizes the USFS to exercise their expertise in wildfire management, it will continue to fund a fight it cannot win, and the USFS will continue to be \u201chamstrung by convention.\u201d[44]<\/sup><\/a><\/p>\n

A Wildfire Commission needs to investigate new legislation to mitigate an extended and increased wildfire season\u2019s economic and socio-economic costs, and it must incorporate contributing factors associated with altered forests\u2019 health. The increase in wildfires, when compounded by rising global temperatures, requires a shift from the economy-based paradigm read into the USFS\u2019s enabling act[45]<\/sup><\/a> to an anthropogenic-based paradigm for analyzing and managing wildfire. [46]<\/sup><\/a><\/p>\n

B. The Wildfire Suppression Funding and Forest Management Activities Act of 2018<\/h3>\n

Appropriations Act amendments provide an apt model for an investigatory Wildfire Commission. The Wildfire Suppression Act requires the Secretary of the DOI or USFS to consult with the Director of the Office of Management and Budget (OMB) to prepare an annual report if either Agency withdraws emergency funds for wildfire suppression in the prior fiscal year.[47]<\/sup><\/a> The report only applies to funds taken by either Agency for emergency funds, not funds already appropriated to the USFS. The annual report requires that the Secretary of the DOI or USFS:<\/p>\n

(1)\u00a0document obligations and outlays of the additional new budget authority for wildfire suppression operations;<\/p>\n

(2)\u00a0identify risk-based factors that influenced management decisions with respect to wildfire suppression operations;<\/p>\n

(3)\u00a0analyze a statistically significant sample of large fires, including an analysis for each fire of\u2014<\/p>\n