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.