FIRE MANAGEMENT IN A CLIMATE CHANGED WORLD: OPPORTUNITIES FOR THE BIDEN ADMINISTRATION UNDER THE NATIONAL ENVIRONMENTAL POLICY ACT.

• Author: Illowsky, Dara

1. INTRODUCTION 883 II. A BRIEF OVERVIEW OF THE HISTORY OF FIRE MANAGEMENT IN THE WESTERN U.S. AND ITS IMPACTS ON FORESTS AND FIRE REGIMES 886 III. BARK V. U. S. FOREST SERV. AND THE ROLE OF NEPA IN MANAGING FIRE IN A CHANGING CLIMATE 890 rv. THE PROPOSALS 895 A. Reissue an Updated CEQ Guidance for Federal Departments and Agencies on Consideration of Greenhouse Gas Emissions and the Effects of Climate Change in National Environmental Policy Act Reviews 896 1. Utilize an Emissions-Based Approach 896 2. Incorporate GHG Emissions and Carbon Sequestration Potential in the Alternatives Analysis 897 3. Consider Short-Term and Long-Term Goals for Forest Resilience 898 4. Mitigation Should be More than a Zero-Sum Game 898 5. Consider How Climate Change Will Affect Suitable Future Uses of the Land and Resources 900 6. Try to Anticipate Future Threats to the Project that May Result from Climate Change 902 B. Restore and Update the 1978 NEPA Regulations 902 1. Reinstate the Cumulative and Indirect Impacts Analysis Requirements 903 2. Restore Public Involvement Requirements in Full 904 3. Restore and Strengthen the Significance Factors 905 4. Retain Expanded Tribal Involvement and Consultation 906 5. Conclusion 907 C. Miscellaneous Additional Opportunities 908 1. Forest planning under the National Forest Management Act 908 2. A National Carbon Reserve System 908 3. Public Communications 910 4. Additional Funding for Fire Planning and Management at State and Local Levels 910 V. CONCLUSION 911 I. INTRODUCTION

   In 2020 the West Coast of the United States saw more wildfires and more area burned than ever previously recorded. (1) For those who live or work in the West, or are generally concerned with climate change, this has become a common refrain, and a regular reminder that the impacts of climate change have arrived, and they are at least as bad as scientists have long predicted. (2) Hotter, drier air, changing precipitation patterns, shifts in plant growing seasons and geography, and other climate-related changes have led to increases in fire frequency and intensity and longer fire seasons. (3) These patterns are likely to continue and perhaps accelerate. (4)

   Climate change did not alone bring western United States forests to this precipice. For decades, the prevailing narrative in popular culture and federal policy has been that fire is bad, that it is destructive and nothing more. (5) This framework led to decades of fire exclusion as the dominant paradigm, wherein fires were "extinguish [ed] ... as soon as possible after ignition." (6) This in turn led to decades worth of fuel buildup in western forests which, when combined with the worsening effects of anthropogenic climate change and excessive logging often disguised as "hazardous fuels reduction," formed the root cause of the recent increase in destructive wildfires. (7)

   In more recent years, increased destruction or threat to human communities as a result of wildfire has caused scientists and policymakers to re-examine the conventional wisdom around fire: if fire is categorically bad and suppression is therefore the answer, then why, year after year, does the United States experience worse and more expensive fire seasons? (8) Must this be our fate, or can fire management evolve to address not only today's fire, but to better prepare both human and ecological communities for tomorrow's fire as well?

   Contemporary scientific developments have instigated a shift from all out suppression-based fire management to more hazardous fuel reduction-based strategies, but federal forest and fire policy in the western United States continues to "emphasize[] short-term outcomes versus long-term goals." (9) As climate change worsens, this is an increasingly dangerous path to tread due to the feedback loop between climate change and fire, intensified by impacts from human development: as forests are lost to both climate change and anthropogenic deforestation, they are lost as valuable carbon sinks, worsening climate change, and contributing to an increase in fire occurrence and intensity that further drives forest loss, and so on. (10)

   To respond adequately to the challenges presented by this feedback loop and the consequences already witnessed, a wholesale reexamination of fire management in the face of a changing climate is warranted. Unfortunately, such an endeavor has long been stalled by and mired in political controversy around what exactly that might look like. (11) Environmental stakeholders often encourage pursuit of the restoration of more natural fire regimes through prescribed burns or allowing fires to burn themselves out naturally. (12) Timber interests and the United States Forest Service (USFS), meanwhile, have long favored methods such as salvage logging and mechanical thinning, pairing their version of fire management with economic benefit. (13) This conflict is enhanced by the inherent uncertainty of climate change and fire management. (14) While there is consensus that climate change is a reality, and that it drives increased occurrence and intensity of fires, (15) there remains robust disagreement over how forest managers can best respond. (16) The Ninth Circuit recently considered such a controversy in Bark v. United States Forest Service, (17) where Bark and other environmental advocacy groups challenged USFS's environmental analysis of the Crystal Clear Restoration Project (Crystal Clear), a forest management project and timber sale planned for part of Mt. Hood National Forest. (18) The case is discussed in greater detail below. (19)

   This Chapter argues that the urgency of climate change demands that a reexamination of fire management not be delayed while the scientific and forest policy communities resolve this debate. Fire management strategies must account now for what we do know: forests need climate-smart policy now, and what is appropriate in one stand of trees may not be appropriate in another stand within the same forest. In a changing world, that means that forest management must be climate-aware, fire-aware, and aware of the interactions between climate and fire. Fire management must allow forests to adapt to a new normal and be resilient through ecologically turbulent times. Rather than evade the uncertainty around the efficacy of various fire management strategies, land management agencies must confront that uncertainty, better disclose and respond to controversy, and better engage all interested parties. Agencies should be guided in this task by three key themes: adaptation, mitigation, and resilience. Federal guidance, regulations, and policy must be implemented to support the agencies in these endeavors.

   With the recent change in political administration, the federal government has an opportunity to embark upon the overhaul necessary to put our forests and forest management on a path toward the resilience necessary to withstand and respond to our changing world. The National Environmental Policy Act (NEPA), (20) as the nation's broadest reaching environmental statute and one which has long been used to address the potential impacts of federal actions on climate change, (21) has a special role to play here. This Chapter therefore proposes and assesses potential policies for the Biden administration to better incorporate climate change into forest management utilizing the NEPA framework, with an emphasis on the special role that fire and fire management can and must play. Part II provides a brief overview of the history of fire management in the western United States, its impacts on forests, and the impacts and implications of climate change for federally managed forests. (22) Part III discusses the Ninth Circuit's recent decision in Bark and its implications for the role of NEPA in fire management for the National Forest System (NFS). (23) Part IV suggests policy proposals the Biden administration might pursue to better address the interrelationships between climate change, wildfires, and forest management under NEPA. (24) Part V discusses in brief other potential policies outside the NEPA framework. (25) The Chapter concludes that fire on the landscape is not going anywhere, nor should it; fire is a vital ecological process and an important tool for retaining western United States forests as a major carbon sink. (26) Federal forest and fire policy must therefore emphasize climate-aware management and prioritize proactive protection of human communities and ecological restoration and resilience over profit or all out suppression.

2. A BRIEF OVERVIEW OF THE HISTORY OF FIRE MANAGEMENT IN THE WESTERN U.S. AND ITS IMPACTS ON FORESTS AND FIRE REGIMES

   The history of fire in the western United States is highly dynamic, storied, and rife with controversy. Indigenous peoples have used fire to manage landscapes for millennia. (27) Even through the early decades of European settlement, fire was a normal and accepted part of the landscape. (28) But as more non-Natives spread across the land and the human population on the landscape grew, humans, their structures, and fire came into conflict more often. (29) It became increasingly clear, at least to society at the time, that the federal government would have to take on the role of fighting these fires, and the era of fire exclusion at the hands of USFS was born in 1905. (30) A few years later, following the historic fire season of 1910, which took the lives of eighty-six people, burned three million acres of land, and leveled entire towns, (31) Congress bolstered USFS's authority to shape fire policy with the passage of the Weeks Act of 1911 (Weeks Act). (32) The Weeks Act gave states financial incentives to cooperate with USFS on fire suppression activity and access to an emergency budget to be used for suppression. (33) Thus began an aggressive USFS practice of suppressing fires as soon as possible, formalized in 1935 as the "10:00 a.m. policy": all fires were to be extinguished by 10:00 a.m...