By Olivia Wheeling*
With fires ravaging much of the West, 2017 was a record wildfire year. Though not every fire affected federal land, much of the over 8.5 million total acres burned in 2017 are federally-managed.[i] Unfortunately, as fires grow in strength, intensity, and destructiveness, the Department of the Interior and U.S. Forest Service budgets for wildfire suppression, calculated in advance based on ten-year rolling averages, often come up far short of what is needed to put these fires out.[ii] This year’s total burned acreage is well over the ten-year average of 5.5 million acres, with costs of suppression exceeding the ten-year average in eight of the last ten years.[iii] In these especially destructive years, funding must be reallocated from other initiatives, such as fire prevention programs, to combat wildfires every year, in a pernicious cycle colloquially known as “fire borrowing”.[iv] Bills before Congress this term aim to combat these emergency reallocations in two distinct ways, neither of which offer a fully satisfying solution. However, none of these bills are likely to become law, which risks leaving fire borrowing as an open issue for the foreseeable future.
These reallocations of funding most often affect the amount of money available to prevent wildfires in the first place and greatly reduced the funds earmarked for forest management projects.[v] In particular, active management of fuel loads and disease or insect-damaged forests has become critical to preventing wildfires from becoming catastrophic. These are the activities that are directly affected by fire borrowing. Without funds to carry out forest fire prevention plans on the 80 million acres deemed extremely at-risk for devastating wildfires, those predicted fires are increasingly destructive and costly to put out, resulting in more and more fire borrowing.[vi] Though emergency funds may be accessed through the Federal Emergency Management Agency for wildfires on nonfederal land, federal wildfires are fought through the U.S. Forest Service and Department of the Interior budgets.[vii] As fires grow in size and intensity, these federal funding resources are increasingly overdrawn.[viii] Fire borrowing is not a new phenomenon. However, the aggregate effect of several years of complex and costly suppression activities has recently amplified legislative concern over the practice.[ix] Though the dangers of fire borrowing have driven legislators from both sides of the aisle to introduce bills to alleviate the budgetary pressure, no law has been passed to combat it.[x]
Though the issues with fire borrowing are well-known to legislators and the governments of Western states,[xi] no solution has yet garnered sufficient support to pass both houses of Congress. Currently, there are four bills being considered. Of the two considered in the House, one approaches the issue from a budgetary perspective, while the other is more notable for its provisions having to do with forest management plans.[xii] A bipartisan budgetary solution is embodied in H.R. 2862, which provides new budgetary authority for federal wildfire suppression funds, increasing the funding available over ten fiscal years to up to $2.69 billion by 2026.[xiii] A competing approach is found in H.R. 2936, the Resilient Federal Forests Act (“RFFA”), which increases the amount of funding available to wildfire suppression efforts by expanding the definition of a “major disaster” under the Stafford Act to include wildfires.[xiv] It is unlikely that any of the fire borrowing legislation in the House and Senate will pass both houses of Congress.[xv] However, one bill has passed the House and is being considered by the Senate – the RFFA.[xvi]
Outside of its prohibition on fire borrowing, the RFFA, among other things, aims to limit litigation over forest management plans by directing claims to a binding Arbitration Pilot Program with no judicial oversight..[xvii] This section would act in concert with the provisions exempting forest management practices such as reducing hazardous fuel loads or addressing insect infestations – major contributors to fire risk – from having to prepare environmental assessments or environmental impact statements.[xviii] Together, these provisions would have a severe impact on environmental litigation, by limiting the number of cases that would make it to a courtroom and by limiting access to environmental impact analyses. A separate section allows for expedited Endangered Species Act (“ESA”) consultations on proposed plans, with an expiration on liability under the ESA after 90 days, which would similarly curtail challenges in court.[xix] The writers, co-sponsors, and supporters of the bill hope that these provisions will cut through what they characterize as the red tape of bureaucratic processes and environmental litigation to speed up the implementation of forest management plans.[xx]
However, this bill adds red tape to the process of gaining emergency funding for major wildfires by only allowing a request for emergency funding to be submitted in writing to the President in the event that a wildfire qualifies as a “major disaster”, with departmental reports required three months later.[xxi] In contrast, the Wildfire Disaster Funding Act (“WDFA”) addresses the problem of fire borrowing by creating a new cap on emergency funding outside of discretionary spending limits, similar to how funding is distributed for other natural disasters, with funds that can be accessed through annual Congressional appropriations.[xxii] Though this approach leaves year-to-year funding up to Congress and retains the ten-year average approach currently used to allocate funding, [xxiii] the WDFA would also address the issue of fire borrowing from a budgetary perspective, without bringing the environmentally-problematic provisions of the RFFA into law.
The RFFA does expressly prohibit the practice of fire borrowing – unlike the WDFA – and allows access to federal disaster funding through the Stafford Act,[xxiv] but does so while simultaneously imposing heavy burdens on the enforcement of other laws under the guise of facilitating more efficient forest management and fire prevention practices. Considering that fire borrowing legislation has been introduced several times in the last three years with no success, it is unlikely that a bill with these additional provisions will gain sufficient bicameral support to become law.[xxv] The effect of this bill on environmental oversight activities, combined with the relatively low amount of political momentum generated by fire borrowing, means that it has a low likelihood of passing a vote in the Senate.[xxvi]
The WDFA and RFFA represent two competing views of how to address fire borrowing. The WDFA addresses what is an essentially a budgetary problem from a purely budgetary perspective. However, this approach is vulnerable to Congressional politics, does not expressly eliminate the issue of fire borrowing, and uses the same ten-year averages that have been proven to be low estimates of wildfire costs in the recent past. The RFFA claims to address each of these concerns by making wildfires on federal land fall under the Stafford Act, by explicitly disallowing fire borrowing, and by allowing agencies to pull from disaster funding by declaring these fires to be major disasters. Even so, this bill goes further by requiring detailed agency reports any time a disaster is declared, limiting the enforcement of existing environmental laws, and stymieing environmental litigation over fire management plans. Rather than resolve fire borrowing alone, the RFFA attaches additional concerning provisions that could result in further negative consequences for federal forests. In the end, neither approach provides a fully satisfactory answer to the fire borrowing issue.
Even so, the problem of fire borrowing demands a solution. As the combined forces of climate change, increased fuel loads, and fire borrowing make fires increasingly dangerous, expensive, and destructive, the issue of how to simultaneously fund suppression and proper forest management becomes ever more important. At the same time, encouraging review, assessment, and challenges to proposed forest management plans is equally important to ensuring that a holistic approach to management is implemented. Fire borrowing must be remedied, but not at the expense of environmental protections.
*Olivia Wheeling is a Junior Editor on MJEAL. She can be reached via email at firstname.lastname@example.org.
The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.
[i] G.F., Why the North American west is on fire, The Economist explains. https://www.economist.com/blogs/economist-explains/2017/10/economist-explains-10
[ii] W. Wallace Covington & Diane Vosick, Symposium Article: Restoring the Sustainability of Frequent-Fire Forests of the Rocky Mountain West, 48 Ariz. St. L.J. 11, 25
[iii] Bartholomew D. Sullivan, Sonny Perdue vows to solve ‘fire borrowing’ to fight wildfires, USA Today. https://www.usatoday.com/story/news/politics/2017/09/08/sonny-perdue-vows-solve-fire-borrowing-fight-wildfires/647489001/
[iv] Martin Nie, Place-Based National Forest Legislation and Agreements: Common Characteristics and Policy Recommendations, 41 ELR 10229, 10232
[vi]163 Cong. Rec. H8326, 8338 (Statement of Rep. Westerman).
[vii] See generally, FEMA, Disaster Relief Fund: Monthly Report. https://www.fema.gov/media-library/assets/documents/31789; See, FEMA, California Wildfires (DR-4344). https://www.fema.gov/disaster/4344
[viii] Katie Hoover & Bruce R. Lindsay, Wildfire Suppression Spending: Background, Legislation, and Spending in the 115th Congress, Congressional Research Service (Oct. 5, 2017), at 10. https://fas.org/sgp/crs/misc/R44966.pdf
[ix] Covington & Vosick, supra note 2, at 26.
[x] See, 163 Cong. Rec. H8326, 8333 (Statement of Rep. Grijalva)
[xi] Letter from Western Governors’ Association to Sen. Ron Wyden (Feb. 24, 2014). http://westgov.org/images/editor/LTR_fireborrowing_Sen._Wyden.pdf
[xii] Hoover & Lindsay, supra note 8, at 30-31; Resilient Federal Forests Act, H.R. 2936, 115th Cong. § 311 (2017).
[xiii] Wildfire Disaster Funding Act, H.R. 2862, 115th Cong. § 2(b)(E)(ii) (2017).
[xiv] See, Hoover & Lindsay, supra note 8, at 33.
[xv] Cf. Skopos Labs Prognosis, GovTrack, H.R.2936 (accessed Feb. 18, 2018) https://www.govtrack.us/congress/bills/115/hr2936; Skopos Labs Prognosis, GovTrack, H.R.2862 (accessed Feb. 18, 2018) https://www.govtrack.us/congress/bills/115/hr2862; Skopos Labs Prognosis, GovTrack, S.1571 (accessed Feb. 18, 2018) https://www.govtrack.us/congress/bills/115/s1571; Skopos Labs Prognosis, GovTrack, S.1842 (accessed Feb. 18, 2018) https://www.govtrack.us/congress/bills/115/s1842
[xvi] GovTrack, H.R. 2936 (accessed Feb. 18, 2018). https://www.govtrack.us/congress/bills/115/hr2936
[xvii] H.R. 2936, § 311.
[xviii] Id., § 111.
[xix] Id., § 123(b)(2).
[xx] 163 Cong .Rec. H8326, 8328 (Statement of Rep. Dunn)
[xxi] Hoover & Lindsay, supra note 8, at 34-35.
[xxii] Wildfire Disaster Funding Act, H.R. 2862, 115th Cong. § 2 (2017).
[xxiii] Hoover & Lindsay, supra note 8, at 32-33.
[xxiv] H.R. 2936, § 1002.
[xxv] 163 Cong. Rec. H8326, 8333 (Statement of Rep. Grijalva)
[xxvi] See generally, Skopos Labs Prognosis, H.R.2936, supra note 9.