October 30, 2020

Views from the Chair: Western wildfires

Howard Kenison

As I write this column in Denver in late September, our usually clear bluebird skies are blunted by a smoky haze from the deadly and record-setting wildfires in the western United States, including the Cameron Peak fire near Fort Collins. For many days in August and September, Denver was overwhelmed with smoke and ash from fires in Colorado, California, Oregon, and Washington. Smoky haze, however, pales in comparison to the loss of life, injury, and dislocation experienced by those directly within the wildfire zones and the firefighters risking their lives to battle the millions of acres of blazes. By the time this column appears in Trends, it is my sincere hope that these wildfires and the devastation they are causing have been contained or extinguished by cooler and wetter weather.

The smoke and ash from the wildfires created an opaque haze that caused 14,000-foot peaks along the Colorado Front Range to disappear. Beyond visibility issues, the smoke affected breathing, burnt the eyes, and limited the ability to exercise for those in sensitive health categories. Ash was found on any car left outside. Sunset one day created the spectacle of turning the sun into a singular bright red orb in the western sky—encircled by smoke and ash.

It was far worse in California. Norm Dupont, chair of the Section’s Governance Committee, who lives in Los Angeles, “woke up to see a bright orange-reddish ball of the sun clothed with dark clouds and breathing polluted air.” For Marisa Blackshire, a Council member and resident of Oakland, the “scene was certainly reminiscent of Mars.” She wondered about the “thought leadership that is necessary to ensure such a day does not become the ‘new normal.’”

Our Section has been the forefront of the legal “thought leadership” addressing these calamitous environmental issues. The Winter 2019 issue of our flagship publication, Natural Resources & Environment (NR&E), covered “Forests.” This issue included two prescient articles about California wildfires: “The New Normal: Living with Wildland Fire” by William P. Edwards and “The Forest Service at Upper Echo Lake: A Cautionary Tale in California’s Era of Wildfire” by Paul S. Weiland and Matthew D. Murphy. Also, a comprehensive analysis of proactive fire and landscape management tools was presented in “Money to Burn: Investing in Proactive Fire Management” by Stephanie M. Regenold and Matthew L. Rojas. Our coverage doesn’t end there. The Winter 2021 issue of NR&E will include the article “Fire Liability Imbalances—An Issue Worth Revisiting?” by Lawson Fite and David Bechtold.

Another excellent article, “Climate change, population demographics, and wildfire planning in the West,” summarizes presentations from a May 2019 conference and can be found in the September/October 2019 issue of Trends. The article, authored by Phillip Higuera, Hillary M. Hoffman, Stephen R. Miller, and Shelley Ross Saxer, addresses the challenges of the wildland-urban interface.

The relation between humans and wildfire is touched on in an interesting Back Page column by Jon Scoll in the Fall 2018 issue of NR&E that includes the thought-provoking quote: “We need to consider that humans and climate have more complicated and interacting influences on historical fire patterns. . . . We expect that future studies of human/climate/fire interactions will further document the complexity of these relationships. Understanding that complexity may prove important as we try to navigate the complex wildfire problems we face today.” Statement by Christopher Roos, lead author of “Indigenous impacts on North American Great Plains fire regimes of the past millennium,” quoted in University of Arizona, Native Americans Shaped Prairie by Hunting Bison with Fire, Futurity (July 26, 2018).

The Section and its substantive committees will continue to consider panel presentations and discussions regarding wildfires and climate change. Following the successful Climate Change program at Pace University in February 2020, a second Climate Change program will be held in June 2021 at the University of Denver Sturm College of Law. This one-day program, chaired by Lisa Decker, will focus on climate-related impacts in the west, including wildfires.

The Climate Change, Sustainable Development, and Ecosystems Committee, chaired by Christopher K. Carr, is planning a program on nature-based climate solutions (forests, ecosystems, sustainable agriculture) as the basis for the Paris Agreement and other climate commitments. Planning for this program is just beginning but will likely include a discussion of the impacts to forest carbon credit regulations, policies, and transactions caused by wildfires.

Stay tuned for more publications and programming by thought leaders in our Section.

Howard Kenison

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Howard Kenison is a shareholder with the firm Jones & Keller, P.C. in Denver. He is the chair of the Section of Environment, Energy, and Resources.