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Friday
Jul142017

Environmental Law: H.R. 2936 a Solution to Fire-borrowing?

Environmental Litigation AttorneyEnvironmental Litigation

Stephen T. Holzer

818.907.3299

 

The federal House Natural Resources Committee (HNRC) recently passed H.R. 2936, a bill to improve the overall health of forests and other lands across the country.

The bill was introduced by Bruce Westerman (R-AK), who is Chair of the Oversight and Investigations Subcommittee of HNRC. (Before taking his Congressional seat, Westerman earned a degree in biological and agricultural engineering, and subsequently served as engineer and forester for an engineering consulting firm. See https://westerman.house.gov/about.)

The Resilient Federal Forests Act, or H.R. 2936, may reduce the risk of wildfire. According to Rob Bishop (R-UT):

Our forest health crisis can no longer be neglected. Active management is needed to reduce the risk of catastrophic wildfire and improve the health and resiliency of our forests and grasslands. More money alone is not the solution. This comprehensive forest management package solves the fire-borrowing problem and gives federal land managers immediate tools to increase the pace and scale of management and restoration projects.

“Fire-borrowing” is the practice of taking funds earmarked for fire prevention, to supplement firefighting instead. The Western Governors’ Association (WGA) addressed the problem in a letter to key congressional leaders late last year:

…the current funding situation has allowed severe wildfires to burn through crippling amounts of the very funds that should instead be used to prevent and reduce wildfire impacts, costs, and safety risks to firefighters and the public.

California Drought Hampers FirefightingThe Association cites an increase in firefighting costs by the U.S. Forest Service (USFS) from 13 percent in 1991, to nearly 50 percent in recent years. That’s quite a chunk of change, especially given the present administration’s intention to cut the forestry budget by $1 billion. On the other hand, some would argue that individual states should pick up any extra expense of fire fighting in their own jurisdictions, inasmuch as such fighting has as its purpose the protection of local ecology and people.

The editorial board of the Fresno Bee, in support of another House bill, the Wildfire Disaster Funding Act, says fire-borrowing is expected to devour up to 70 percent of the USFS’s budget in less than a decade.  Those who believe the planet will get progressively warmer also believe we will see more and more wildfires over the years, triggering even more emergency extinguishing efforts rather than prevention.

Insect infestation and botanical diseases combined with drought (especially here in California) have yielded a lot of dead wood. This over-abundant fuel situation combined with the severe depletion of USFS fire prevention budgets by emergency firefighting efforts creates – dare we say it – a perfect firestorm.

Westerman and other H.R. 2936 supporters hope to reverse the destructive cycle.

Details of the Resilient Federal Forests Act

If passed by both houses of Congress and signed into law, H.R. 2936 may expedite:     

  • Environmental analysis
  • Forest management activities
  • Stewardship and end result contracting
  • Secure rural schools and communities
  • Provide additional funding sources for forest management
  • Protect and manage tribal forests 

Additionally, H.R. 2963 would define categorical exclusions to expedite: 

  • Critical response actions
  • Salvage operations for catastrophic events
  • Plans for successional forestry
  • Plans for roadside projects
  • Reduced risk of wildfire
  • Improve or restore National Forest System Lands 

Part of the bill also addresses litigation, and prohibits fee awards given to plaintiffs and their attorneys, thus reducing the potential for “bounty hunter” litigation.

Where’s the Conflagration?

Westerman’s forest resiliency bill is running into some controversy, primarily from environmentalists who wish to limit logging activities, protect endangered species and preserve the rights of citizens to sue should unforeseen circumstances arise. They claim the bill is riddled with loopholes.

Federal Bill Reduces Forest Fire Fuel

Detailed arguments against passing the Resilient Federal Forest Act are outlined in a press release regarding the “Logging Bill” as it is called by the Western Environmental Law Center: 

  • Unsustainable logging permitted, characterized as a timber industry “wish list”.
  • Landowners with easements over public land will be given ownership.
  • Logging and salvage logging projects, herbicide application, and construction projects encompassing less than 10K acres may dodge environmental surveys and analysis.
  • Endangered Species Act may be subverted.
  • Public oversight severely limited.
  • Funds allocated to land stewardship diverted to USFS to plan timber sales.
  • Attorneys’ fees cannot be awarded if government breaks the law.
  • Forest plans no longer enforceable.
  • Diverts authority to determine impact on endangered species to land management agencies. 

So what’s the best way to save our national forests? 

The aforementioned Wildfire Disaster Funding Act increases the budget for firefighting. That in itself can be a controversial method among certain factions. But adding more federal funding does not come burdened with the same hot-topic environmental concerns of the Westerman bill.

There is yet another issue—whether increased fire-fighting funding is sought at the federal or state level, the perennial question arises as to who is going to pay, and how? The federal government is $20 trillion in debt; and states like California have pension programs that are also deeply in debt and threaten the states’ financial viability.

Are those advocating more fire-fighting funding willing either to pay yet more in taxes or to reduce other government expenditures to prevent the debt from spiraling out of control? There is simply not enough money to do everything we want government to do, all at once.

It’s said that Nero watched Rome burn – and some contend he even started the fire to clear room to build a palace. The question is, should we allow Rome to burn, or control the clearing with H.R. 2936? That remains to be seen.

Stephen T. Holzer is a Business Litigation Attorney and the Chair of our Environmental Practice Group.

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