September 01, 2019

Climate change, population demographics, and wildfire planning in the West

Philip Higuera, Hillary M. Hoffmann, Stephen R. Miller, and Shelley Ross Saxer

This article contains summaries of presentations from a May 2019 conference exploring the nexus of climate, population, and wildfire planning in the western United States at the University of Montana’s Alexander J. Blewett III School of Law.

Wildfire activity has increased substantially in the United States over the past several decades, with record-breaking fire seasons becoming increasingly common. The 2017 fire season was one of the most extensive and expensive, and, in 2018, California alone experienced its largest (Ranch Fire—186,000 hectares) and deadliest (Camp Fire—85 lives lost) wildfires in state history. While past land-management practices, including decades of fire suppression, have altered the amount of dead vegetation in many ecosystems, fire scientists have also established clear links between increased fire activity and increasingly warm, dry summer conditions, which stem in part from anthropogenic climate change. These increasingly warm, dry conditions make dead vegetation particularly susceptible to ignition and rapid fire spread, and ongoing climate change is expected to exacerbate these conditions in upcoming decades. Despite this understanding, predicting the timing and behavior of individual wildfires, planning to avoid loss of property and human life, and mitigating resultant damages from wildfires (both social and ecological) remain complex endeavors. An additional complicating factor is the changing population demographics of the modern West, with increasing development in the wildland-urban interface placing more homes and structures in fire-susceptible environments, which lead to more human-caused fires during and outside of the historical fire season. Montana alone has seen a doubling of the number of homes in wildfire-prone areas in the last 26 years.

As we shall discuss, these data and trends impact two areas of the law in particular: land-use planning and litigation surrounding management of fires.

Planning for wildfire in the wildland-urban interface

Wildfires in the wildland-urban interface are receiving significant attention now because they are expensive, dangerous to suppress, and development patterns have caused the size of the wildland-urban interface area to increase rapidly. In most Western states, over 40 percent of the population lives in the wildland-urban interface.

Addressing wildland-urban interface wildfires presents a number of legal challenges. Suppression costs reside with the federal government. As a result, neither the insurance industry nor local governments, which permit new developments, have significant liability for new housing that is placed in high-risk wildfire locations likely to need suppression.

Efforts to address this disconnect have sought to build a unified regulatory approach, but results are mixed. Chief among these efforts is a policy document, known as the Cohesive Strategy, published in 2014 and authorized by the Federal Land Assistance, Management, and Enhancement Act of 2009 (FLAME Act). The Cohesive Strategy adopts a framework for intergovernmental cooperation but has not had significant impact on development patterns. The most common on-the-ground tool is the Community Wildfire Protection Plan. Community Wildfire Protection Plans, authorized by the Healthy Forests Restoration Act of 2003, are voluntary, National Environmental Policy Act–exempt planning documents that primarily identify wildfire risk and offer a community the chance to create a voluntary framework through which federal, state, and local governments can address that risk.

Still, permitting of development in the wildland-urban interface remains primarily the province of local governments. Much work has gone into codes, such as the International Wildland-Urban Interface Code, and voluntary frameworks, such as Firewise, that can guide local decision making. A consensus has emerged that good wildfire planning requires community, neighborhood, individual site, and building-specific regulations. Enforcement of regulations, however, is difficult—few fire departments want to be “tree cops”—and even complying with best practices does not ensure a wildfire will not burn a structure. Wildfire regulations are nascent, though, and likely to become more nuanced, and perhaps more powerful, as wildfire risk grows.

Wildfire and state damagings claims

Wildfire litigation continues to grow as we seek to determine who will pay for the damages caused by these increasingly frequent disasters. Litigants are turning to state constitutions and statutes for inverse condemnation and “damagings” claims (claims based on state constitutional clauses that prohibit the "damaging" of property for public use without just compensation, also known as state inverse condemnation claims) to address government or private actions that benefit the public, but also damage individual landowners. When government action (and possibly inaction) causes property damage, tort claims will likely be unsuccessful, as sovereign immunity shields the government from liability. The federal government relies on the Federal Tort Claims Act for immunity and similar state legislation shields state and local governments. However, those states that have damagings clauses attached to their takings clauses may provide for greater government and private entity (such as a utility company) liability. Such inverse condemnation claims have allegedly driven privately owned utilities into bankruptcy, increased insurance costs, and discouraged investment in these utilities.

If we, as a society, value using political and legal means to fairly distribute the benefits and burdens of our community life, we must consider which mechanisms will be appropriate to account for the “takings” and “givings” that occur with government regulation, action, and inaction, and climate change. The costs of providing public and private services that benefit the public will be great and we need to develop a better understanding of how to pay for these costs. Tort liability; insurance; utility rates; personal responsibility; taxation at the federal, state, and local level; and just compensation for eminent domain or inverse condemnation are some of the remedies we have used in the past to spread the costs of providing public benefits. Unfortunately, these remedies may not be sufficient to manage and pay for future disasters, including today’s wildfires.

Philip Higuera, Hillary M. Hoffmann, Stephen R. Miller, and Shelley Ross Saxer

Philip Higuera is an associate professor of Fire Ecology in the Department of Ecosystem and Conservation Sciences at the University of Montana. Hillary M. Hoffmann is a professor of law at Vermont Law School. Stephen R. Miller is the associate dean for Faculty Development and professor of law, at the University of Idaho College of Law. Shelley Ross Saxer is the Laure Sudreau endowed chair and professor of law, at Pepperdine University Law School.