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The Infrastructure Act Brings New Funding, New Policies to Federal Forest and Wildfire Management

James B Pollack and Lawson E Fite


  • Looks at the Infrastructure Investment and Jobs Act as it includes funding commitments to reduce wildfire risks.
  • Discusses the two major litigation impacts from the emergency action authority.
  • Addresses the IIJA’s new statutory categorial exclusion (CE) under NEPA for fuelbreaks.
The Infrastructure Act Brings New Funding, New Policies to Federal Forest and Wildfire Management
E4C via Getty Images

President Joseph Biden signed the Infrastructure Investment and Jobs Act (IIJA) into law on November 15, 2021. The IIJA includes massive funding commitments to suppress fires that have ravaged millions of acres of forests over the past decade, imperiled dozens of companies and their employees in the forest products industry, and threatened the safety of hundreds of communities, especially in the West. It also includes policy changes that could affect millions of people whose business, recreation, and enjoyment depend on healthy forests. 

In summer 2020, the West experienced one of the worst fire seasons on record. Images of San Francisco bathed in an orange sky filled the news. Colorado experienced its two largest fires in state history: the Cameron Peak Fire and the East Troublesome Fire. Oregon experienced a series of 100-year fire events that burned over a million acres, destroyed more than 4,000 homes, and set records for poor air quality. For example, prior to 2020 Portland had never experienced Air Quality Index readings of “very unhealthy” (200+) or “hazardous” (300+), but in 2020 recorded three very unhealthy and five hazardous days. The National Interagency Fire Center (NIFC) reported that U.S. wildfires burned 10,122,336 acres in 2020—a mere 2,814 acres away from beating the previous record.

While 2021 was a reprieve in some areas, wildfires burned 6.5 million acres this year, compared to 8.6 million acres over the same time period in 2020. California experienced its second largest fire in state history. These fires have brought great destruction and have also caused enormous carbon emissions from a resource that has the potential to be our greatest carbon sink.

These record-breaking wildfires are the complex result of climate change, drought, decades of fire-suppression policy, and failures to engage in active management across the landscape. The IIJA includes a combination of policy and funding changes that collectively may enhance the pace and scale of forest restoration across the entire federal forest system.

Policy Changes Narrow the Role of NEPA

The IIJA includes several policy changes relating to the application of the National Environmental Policy Act (NEPA) to forest management. The Forest Service prepares more environmental impact statements under NEPA than any other federal agency.

NEPA requires the federal government to study the effects of any “major federal action” affecting the environment. 42 U.S.C. § 4332(C); 40 CFR § 1508.18. The statute imposes a purely (in theory) procedural requirement to take a hard look at the environmental consequences of federal activities. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350–52 (1989). Although procedural in nature, NEPA can be used to delay project implementation, and through those delays, stop projects altogether. That includes timber projects intended to mitigate the potential harms caused by wildfires, several of which have burned while waiting for judicial blessing.

The IIJA established a new statutory categorical exclusion (CE) under NEPA for fuelbreaks. A statutory CE is a type of NEPA compliance where a full environmental impact statement is not required because Congress has determined projects within the scope of the CE grants a category of projects with automatic NEPA compliance if they meet the statutory CE’s requirements. Projects that meet the statutory CE’s specific elements will not be subject to additional regulatory processes. See, e.g., Center for Biological Diversity v. Ilano, 928 F.3d 774 (9th Cir. 2019) (applying statutory CE for insect and disease sanitation harvest enacted in 2014 Farm Bill); Wild Watershed v. Hurlocker, 961 F.3d 1119 (10th Cir. 2020) (holding that regulatory “extraordinary circumstances” evaluation is not required under statutory CE).

A fuelbreak is a modified strip of vegetation or other combustible material that creates a barrier to slow or stop the progress of a wildfire. The IIJA fuelbreak CE applies to fuelbreak projects up to 1000 feet wide and encompassing up to 3000 acres. It also applies to lands administered by either the Forest Service or the Bureau of Land Management.

The Forest Service previously used other CEs to undertake fuelbreak projects. Groups have challenged the use of those CEs in federal court, and two such cases are now on appeal in the Ninth Circuit. See Los Padres Forestwatch v. U.S. Forest Serv., No. CV-19-5925-PJW, 2020 WL 4931892 (C.D. Cal. Aug. 20, 2020), Ninth Cir. No. 20-55859; Mountain Cmtys. for Fire Safety v. Elliott, No. 2:19-CV-6539-CAS-AFMx, 2020 WL 2733807 (C.D. Cal. May 26, 2020), Ninth Cir. No. 20-55660. As agencies continue to confront increased wildfire risks, the new IIJA CE will provide a secure and timely path forward for fuelbreak projects that are needed to facilitate effective wildland firefighting.

The IIJA also establishes new “emergency action” authority to “mitigate the harm to life, property, or important natural or cultural resources on National Forest System land or adjacent land.” It is worth noting that this emergency authority applies at a different procedural stage from current regulatory authority to issue an “emergency situation determination” that enables the Forest Service to bypass the administrative objection process once NEPA is complete. See 36 C.F.R. § 218.21. Rather, the Secretary of Agriculture can use the IIJA emergency authority to address a wide range of needs, including salvage of dead or dying trees, harvest of frost or wind-damaged trees, the commercial and noncommercial sanitation harvest of trees to control insects or disease (including trees already infested with insects or disease), the removal of hazardous trees in close proximity to roads and trails, the removal of hazardous fuels, replanting or reforesting of fire-impacted areas, restoration of water resources or infrastructure, and reconstruction of utility lines and underground cables, over up to 10,000 acres.

The emergency action authority has two major litigation implications. First, it limits the NEPA analysis required for any qualifying project. The environmental assessment or environmental impact statement need only consider the alternatives of action or no action rather than a range of alternative actions. That change eliminates a potent argument that challengers frequently use in NEPA cases. See, e.g., Klamath Siskiyou Wildlands Ctr. v. Bureau of Land Mgmt., No. 1:17-CV-00997-CL, 2019 WL 1553673 (D. Or. Feb. 20, 2019) (remanding 582-acre timber sale for additional alternatives analysis). Second, a court may only enjoin an emergency action project if the plaintiff shows it is “likely to succeed on the merits.” This in effect abrogates the “serious questions” or “sliding scale” standard that the Ninth Circuit applies when analyzing whether to issue an injunction. See Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011). That change would make injunctions significantly less likely for emergency action projects, particularly in western states within the Ninth Circuit. In concert, these two policy changes may streamline projects that previously could have been delayed by litigation.

New Funding Across the Landscape

The IIJA includes significant new funding to address causes and effects of wildfires. It allocates $3.4 billion in funding for wildfire risk reduction. That includes $500 million in grants for community wildfire defense, $500 million for conducting mechanical thinning, $500 million to install and research fuelbreaks, and another $500 million to conduct prescribed burns. The remaining funds are to be used to treat forestland or rangeland identified with high wildfire risk potential in the wildland-urban interface or in public drinking water source areas, the purchase of incident reporting technology, local government communication systems, to increase firefighter pay, or otherwise conduct wildfire research.

The IIJA allocates an additional $2.3 billion for ecosystem restoration projects. Those funds include a program to identify treatment areas that require removal of vegetation paired with a program to identify and provide financing, including loan guarantees to nearby sawmill and wood processing infrastructure to serve those treatment areas. The sawmill program will provide low-interest loans or loan guarantees to establish, reopen, retrofit, expand, or improve sawmill or other wood-processing facilities. That funding could prove significant in Montana, Utah, Arizona, New Mexico, and central Washington, where lack of infrastructure inhibits forest management yet capital investments are difficult to justify.

Finally, the IIJA authorizes $250 million for the Forest Service’s Legacy Road and Trail Program. That program funds activities to restore fish passage in streams at road and trail crossings, decommission unauthorized user-created roads, and decommission temporary roads. Those activities improve water quality and will facilitate needed forest restoration activities.


The IIJA includes a significant investment in forest management that may lead to better outcomes for carbon sequestration, wildfire prevention, and rural economic development.

Even with all the above changes, Congress may not be finished addressing forest management. The House of Representatives passed the Build Back Better Act (BBB Act), H.R. 5376, on November 19, 2021, which includes additional billions of dollars for forest management. Together, the IIJA and BBB Act promise to reshape the forestry policy and funding landscape for decades to come.