Low-Energy Fridays: What’s the Link Between Judicial Review and Wildfires?

As wildfires continue to devastate large parts of Los Angeles County, a seemingly unrelated topic has come up: judicial review of environmental permits. While it’s too early to assign blame or engage in the “what if” scenarios that follow any natural disaster, there is once again the question of whether prescribed fires (also called controlled burns) or other forest management practices may have mitigated the risk. We can’t yet know, but one possible reason such practices are not used as widely as they could be is that they often require permits under the National Environmental Policy Act (NEPA) and all the baggage that entails.

Covered in a previous Low-Energy Fridays post, the story of NEPA is fairly simple. A process intended to expedite federal permitting and ensure compliance with relevant environmental statutes has become emblematic of protracted permit issuance timelines. It used to take an average of two years for a project requiring an environmental impact statement to go through NEPA. While more recent data puts the average at about 4.5 years, it’s hard to say how long the process takes today.

Litigation risk is the most consistently identified cause of delayed timelines. Government agencies responsible for issuing NEPA decisions produce ever-longer documentation to justify their decisions and resist anticipated legal challenges. The common policy prescription to mitigate these challenges is modification to the “judicial review” process, which involves altering factors like how long after a permit is issued can it be challenged in court, or what requirements someone must fulfill before filing a lawsuit.

Prescribed fires fall under this dynamic. In 2003, there was an attempt to ensure prescribed fires received a categorical exclusion under NEPA to expedite the process; in 2007, the Sierra Club defeated the effort in court. Essentially, the apparent concern is that forest management—like everything else requiring a permit—is increasingly encumbered by red tape, making larger wildfires more likely.

Whether large wildfires could be avoided via easier permitting for prescribed fires isn’t something I can judge yet using the information currently available. With the official governmental position being “[m]ore prescribed fires mean fewer extreme wildfires,” it makes sense that easier permitting would mitigate risk. But keep in mind that the total acreage of prescribed fires occurring by year continues to increase, as it has for decades. The National Interagency Fire Center recorded six million acres of prescribed fires in 2019 compared to 1.2 million acres in 2000. However, this increase does not necessarily mean red tape isn’t a problem: Most of the increased acreage of prescribed fires comes from the “states and other” category, not from federal agencies. Also, most prescribed fires are happening in the southeastern United States—not famously wildfire-prone California. There is a political appetite to make it easier for the federal government to approve prescribed burns, though, as evidenced by the bipartisan Fix Our Forests Act introduced last Congress.

Despite its name, the Fix Our Forests Act was also quite contentious—namely because it approached the root of the problem: judicial review. The act aimed to reduce litigation risk by setting a higher bar for plaintiffs and requiring them to submit comments during the public comment period. This would, in turn, give agencies greater clarity during their document preparation phase and reduce permitting timelines, a standard approach to permitting judicial review reform used in the past. Unsurprisingly, conservation groups that rely on litigation to challenge federal projects came out against the bill. What is unclear is whether the groups that favor more complexity and delays in forest management have a reasonable alternative for mitigating wildfire risk.

What we do know is that the Los Angeles wildfires will likely be the most expensive in U.S. history. This is exactly the sort of event that forces a reexamining of policy. The argument against modification to judicial review is largely that someone could be adversely affected if they were unaware of the need to publicly comment on a governmental decision they later planned to litigate. Such an argument can be persuasive when pitted against the nebulous benefit of reduced project timelines; however, in the wake of these wildfires and the thousands of displaced people, the hypothetical benefit of easier litigation around forest management permits is much harder to imagine than the visibly suffering Americans.