Introduction
We live in an era of megafires—a man-made pyrocene. Wildfires are getting bigger and more intense thanks to climate change and expanding human activity in forests. These more severe fires are unsurprisingly also more destructive: a greater number of homes are at risk, and fast-moving fires leave less time to evacuate. Wildfires are a part of nature. But high severity fires can devastate ecosystems by polluting water, causing massive landslides, and leading to species extinction. The emotional and physical impacts of forest fires on communities are immense. Fires can raze whole towns within hours, leave lungs permanently damaged from smoke, and instill deep feelings of fear and insecurity. The socially marginalized often bear the brunt of this damage. People of color, low-income neighborhoods, and indigenous communities all suffer the impacts of fire at higher rates than their white and wealthy peers.
Extreme fires are both a harbinger and accomplice of climate change. Wildfire’s expansion in intensity and scale is proof of the arrival of a new climate. But forest fires also contribute to climate change. Forests are important carbon sinks because plants sequester greenhouse gases through photosynthesis. When forests burn, they release that trapped carbon into the atmosphere. And the more intense the fire, the more carbon dioxide the fire releases.
Prescribed burns—fires intentionally set by forest managers, also called controlled burns—may be our best weapon against destructive wildfires. Controlled burns result in less frequent and less intense wildfires. They decrease the amount of biomass left in a forest to burn in a wildfire and clear woods of dangerous detritus that can lead to crown fires. In fire-prone forests like those in the American West and Southeast, prescribed burns also restore ecosystems and help forests store carbon.
Controlled fires are no silver bullet. Serious dangers are associated with any forest fire. Smoke is smoke; it harms lungs whether it comes from a planned or unplanned fire. Moreover, it is impossible to fully control fire. There is always some risk that a controlled burn could become uncontrolled. The consequences of an out-of-control prescribed fire are no less than any other wildfire, as demonstrated by the Cerro Grande Fire of 2000. Initially set as a controlled burn on the Bandelier National Monument in New Mexico, high winds picked up the flames, resulting in a 43,000-acre fire that tore through the town of Los Alamos. The damage to the town and its infamous National Laboratory cost one billion dollars. Over four hundred families lost their homes. Despite the dangers, ecologists, foresters, and politicians have called for an increase in prescribed burns. They argue that without burns, wildfires would be even more unpredictable and uncontrollable.
Today, foresters widely accept prescribed burning. In the United States, forest managers treat over ten million acres a year with prescribed fire. Two regions of U.S. forests account for the vast majority of controlled burns: the West and Southeast. Most large and destructive wildfires occur in the West, and even most land managers see forest fires as a Western issue. Over the past decade, managers have significantly increased prescribed burning in the West. Yet, a mere twenty-two percent of America’s prescribed fires are set west of the Mississippi. The Southeast accounts for a whopping seventy percent.
This paper addresses the paradox of the West’s missing controlled fire. If prescribed burns are so effective and so desperately needed, why are there so few Western prescribed burns? I argue that it is the result of a combination of two forces: first, the impact of colonial migration on forest ownership and local understanding of fire; and second, the National Environmental Policy Act (NEPA). Due to the uneven pattern of land expropriation, Western forests are largely owned and controlled by the federal government. Federal forest managers must analyze all actions for potential environmental impacts under NEPA. Like the Clean Air Act (CAA) and Endangered Species Act (ESA), NEPA is one of the great American environmental statutes of the 1960s and 1970s. Unlike either CAA or ESA, NEPA is procedural rather than substantive. Instead of establishing levels of protection, it creates procedural hoops that agencies must jump through to review the potential environmental impacts of federal actions. NEPA’s one-way procedural nature makes it difficult and expensive to take any action that might have serious consequences, like controlled burns, no matter how dangerous not taking that action could be. Paired with inadequate funding and local communities’ prescribed fire skepticism, NEPA ties the hands of most Western forest managers and stops them from enacting much-needed burns.
This paper is not unique in critiquing NEPA. The statute has been a lightning rod of controversy since its inception. Free-market proponents like the Property and Environment Research Center and the Heritage Foundation have criticized NEPA as slow and inefficient. The Trump administration spent its final months in office attempting to gut the statute, in part by preventing agencies from considering climate change in their analyses. Many—although certainly not all—of these critiques come from proponents of industry who see NEPA as overly protective of the environment. This paper takes the converse view: NEPA harms ecosystems by keeping much-needed fire out of forests and grasslands.
Part I of this article lays out the history of fire on North America, from early fire management by indigenous people to the arrival of large-scale fire suppression in the twentieth century. It traces the movement of white settlers across the continent to show how different forms of colonization between East and West resulted in largely privately owned forests in the Southeast and publicly owned woods in the West. It also tracks how the attempted removal of native tribes by the U.S. government paralleled changing forms of fire management practices. Part I culminates in a comparison of forest ownership and fire management in the Southeast and West today.
Part II provides a brief overview of NEPA’s history, the current NEPA system for analyzing agency decision-making, and its success in preventing environmental degradation.
Part III dives into how NEPA’s framework prevents controlled burns. It focuses on the inverted funding structures within agencies that result from NEPA review costs and how NEPA’s mandated stakeholder involvement disempowers local communities and leads to breakdowns in communication with the public. It reviews how NEPA drives agency perceptions of science and incentives around risk. Finally, it explores how these problems reveal NEPA’s flawed understanding of the relationship between humans and nature.
Part IV explores a menu of options to increase Western prescribed burns, ranging from increasing funds to reworking NEPA’s participation mechanisms to restoring tribal control of public lands.
I. A History of American Fire
In The Pyrocene, environmental historian Stephen J. Pyne describes three distinct forms of fire on earth: first-fire, second-fire, and third-fire. To Pyne, “First-fire is the fire of nature,” the early era on earth when fire first emerged, kindled by lightning and fed by the fuel of early land plants. This phase began roughly 420 million years ago and continued until humans learned to control fire. Second-fire is the fire that swept across the globe with the expansion of our species roughly two million years ago. It included unintentional wildfires caused by untended kitchen hearths and the intentional setting of landscapes on fire—burning forests to clear underbrush to improve hunting conditions or slash-and-burn agriculture to remove weeds and pests. In the past two centuries, second-fire has given way to a new form of human flame. “Third-fire burns lithic landscapes no longer bounded by such ecological limits as fuel, season, sun, or the rhythms of wetting and drying.” Through coal, oil, gas, and technology, humans have begun to remove traditional fire from our homes and landscapes: we replaced the hearth with the stove and forest fires with clearcuts. These three forms of fire correlate to distinct phases of American fire: pre-human fire; indigenous and early colonial fire; and post-industrial fire suppression.
A. Fire in pre-colonial America
Like roughly forty-six percent of global ecoregions, America’s Southeast and Western forests evolved with fire. Forests in both regions are largely “fire-dependent,” meaning fire is “fundamental to sustaining native plants and animals.” Fire has been a perennial presence in American coniferous woods, from the Florida sand pine scrub to the Cascade Mountains’ leeward forests.
These fire-dependent ecosystems predate humans: forests first burned in fires started by lightning or by outlier events like volcanic eruptions and coal seam fires. But the first-fire of lightning was eventually replaced by the second-fire of indigenous fire. When humans migrated to the Western Hemisphere roughly 14,000 years ago, they brought fire with them. The paleological record proves the impact of these first Americans. From coast to coast, fire quickly outpaced the frequency of prehistoric burning regimes. Native Americans had a sophisticated understanding of fire as a management tool; they “used fire for diverse purposes, ranging from cultivation of plants for food, medicine, and basketry to the extensive modification of landscapes for game management or travel.” Indigenous tribes on both sides of the continent used fire specifically to manage forests. They set fires to revitalize agricultural conditions, drive game, improve travel, and generally “manipulate and eventually create local environments of their own design.” Fire became part of both the physical landscape and tribal tradition and culture.
B. Pre-industrial colonization and regional division
The arrival of white settlers in the Americas in the fifteenth and sixteenth centuries began slowly disrupting existing fire regimes. This disturbance varied regionally. In the southern British colonies, use of prescribed fire remained widespread. Native people continued to practice controlled burns for land management after the initial period of white settlement. When President Andrew Jackson and the American government forcibly and violently removed Southeastern tribes from their lands in the 1830s and 1840s, members of the tribes took their fire practices with them, bringing controlled burning to new settlements in Oklahoma. But the Trail of Tears did not end intentional fire in the South; the white settlers who benefitted from the land grab readily continued the tradition.
“[I]n the South, woods burning was a widespread practice from the outset” of white colonization. Unlike New England’s settlers, who mostly came from cities or areas of Europe with fire-sensitive forests, Southern colonists were mainly from rangeland and rural areas, where fire had remained a regular part of agriculture throughout the early modern period. These fire-accustomed settlers combined their own fire traditions with those of Native Americans. They set fires to reduce pests like ticks and rattlesnakes and to limit wildfires. After the Civil War, Black sharecroppers and tenant farmers continued to burn fields. Even wealthy northerners who flocked to the postbellum South to build hunting retreats learned that prescribed burns were often necessary to promote the prized bobwhite quail.
White settlers who colonized the American West had a different approach to fire. Unlike in the Southeast, Western fire remained a tool used almost exclusively by indigenous tribes. A survey of fires in the interior West before 1900 estimates that eighty-nine percent of fires with clear attribution had been set by Native Americans. The topography of the West may have contributed to colonists’ aversion to fire. The mountainous, arid, and elevated terrain often proved more conducive to grazing livestock than growing crops. Western settlers, seeking to establish a cattle economy, mistakenly assumed fires destroyed the rangeland and grass needed to feed horses and cows. These settlers may also have been impacted by racism towards and fear of the tribes that remained a powerful force throughout the region. These settlers viewed fire as dangerous, a tool of Natives. They turned to the federal government to attempt to extirpate both.
C. Expropriation of Western lands
The development of federally managed public lands likely aided the removal of fire from Western landscapes. From the early days of European colonization and throughout the early American Republic, land was a commodity to be privatized: any territory claimed by a government not already inhabited by other white settlers was presumptively up for sale. Land in the public domain was not perceived as eternally so; while some small percentage might remain in the commons, the rest would eventually be divided up among individual landowners. In the mid-nineteenth century, the Preemption and Homestead Acts encouraged westward white settlement by promising government-owned property to any adult willing to “settle[] and cultivat[e]” the land. Statutes like the Timber Culture Act and the Timber and Stone Act of 1878 amended the Homestead Act to center forests as a new driver of westward expansion but maintained the same fundamental structure for private acquisition, in ways that often resulted in land grabs by corporations and wealthy individuals. By the turn of the century, a very different approach to land management had supplanted homesteading and fundamental understandings of how land should be used and divided.
Towards the end of the nineteenth century, Congress passed several laws fundamentally changing the government’s relationship with the land it owned. In 1872, Congress established Yellowstone National Park. In 1891, Congress passed the General Revision Act, repealing the Timber Culture laws and giving the President the power to “set apart and reserve” any forest on public land as a “public reservation.” It was soon followed by the Transfer Act of 1905, which handed over public forest reserves to the nascent Forest Service, and the Weeks Act that authorized and funded federal agencies to purchase private lands to protect watersheds and expand national forests. These laws mark the beginning of public lands as Americans broadly think of them today—unsettled areas preserved for the use and enjoyment of all, no longer lots waiting to be parceled off into private property.
This new policy of preserving public land created a regional imbalance. At the turn of the twentieth century, the West was sparsely populated by white settlers. Montana, Washington, Idaho, Wyoming, and Utah had only recently been admitted to the union, with New Mexico, Arizona and Alaska still territories. But in the densely settled East, very little land was left in the public domain to be preserved. The numbers are hardly close: roughly three percent of Alabama is federal land, while more than eighty-five percent of Nevada is federal. As the country industrialized, Western lands managed by the federal government lost their fire, while private Southeastern forest owners kept the flame alive.
D. Industrialization and fire suppression
In the late nineteenth century, foresters began a crusade against controlled burns. In the West, where the federal government was just beginning to think about large-scale land management, its earliest actions suppressed fire in all its forms. In the Southeast, industrialization brought dramatic changes to fire regimes that empowered public-land managers to temporarily stamp out the long tradition of prescribed burns. In both regions, the devastating wildfires that resulted seemingly dealt a coup de grâce for intentional fire on American landscapes.
Throughout both Native American burning and early European settlement, the general quality of Southern fires remained the same: people in both eras set relatively low-intensity scrub fires. Things began to change in the late 1800s when industrialization brought new industries to the South. Timber, railroad, and mining corporations replaced livestock grazing as the primary use of land. New logging practices were particularly pivotal. Commercial timber operations resulted in large piles of woody debris called slash. Loggers would frequently burn the slash, creating large treeless meadows through intense, stand-replacing fires. Even if not deliberately burned, abandoned slash piles would dry out and catch fire from a passing spark, resulting in vast and destructive wildfires.
Western forests experienced an even more devastating series of conflagrations in the early twentieth century. Perhaps most famous was the Great Fire of 1910, when hurricane-force winds intensified hundreds of smaller fires into a deadly inferno. Over eighty-five people died, seventy-eight of them firefighters. The fire razed entire towns, and smoke even reached New England.
The Northern Rockies fires of 1910 left a burned swath across the memory of a generation of foresters, not unlike the effects of the Great War on the intellectual class of Western civilization. In the summer of 1910, 5 million acres burned on the national forests, 3 million in Idaho and Montana alone.
Into this new, seemingly more combustible world stepped the newly minted United States Forest Service (USFS). Gifford Pinchot, the first head of the service, was an early advocate against fire. Under his leadership, “[f]ire suppression became the doctrine and leading policy of federal agencies.” The Forest Service funded psychological and sociological research into the motivations of intentional fire-setters, painting an unflattering portrait: “the researchers concluded that underlying reasons and motives for woods burning included social isolation, boredom, ritualistic tradition . . . frustration of a culturally and economically disadvantaged group, alienation, and creation of jobs in fire suppression.”
USFS outlined its opposition to fire in a series of regulations in the early twentieth century that emphasized “early detection and suppression.” The first USFS manual, published in 1905, stated in no uncertain terms that “Officers of the Forest Service, especially forest rangers, have no duty more important than protecting the reserves from forest fires.” This “use book,” as agency staff called it, contained regulations like “REG. 62. A fire must never be left . . . before it is completely extinguished,” and “REG. 63. Lumbermen . . . are cautioned against making dangerous slashing.” It emphasized that punishment for unlicensed prescribed fires could lead “in aggravated cases, to criminal prosecution.”
USFS repeatedly doubled down on suppression. In 1926, the agency established a policy requiring staff to control all wildfires before they reached ten acres in size. USFS began a mass effort to educate the public about the dangers of forest fires, culminating in the creation of Smokey Bear. In 1935, after another spate of colossal wildfires, the agency adopted the 10 a.m. policy: “[A]ll fires were to be controlled by 10 a.m. of the day following discovery.” The 10 a.m. policy remained in effect until the 1970s, with devastating consequences. As one pair of USFS researchers described it, “[F]uel loads have exceeded their historical range in many forests, important ecological changes have occurred, wildfires have become more difficult and expensive to control, and homeowners have been led to expect aggressive wildfire suppression, irrespective of costs.”
E. The return of controlled fire
Fire could not be kept from Southeastern or Western landscapes forever. In the late twentieth century, foresters finally began to understand and encourage prescribed burning. But the renaissance of American fire progressed more quickly in the Southeast than in the West, driven by disparate cultural attitudes towards fire and levels of private ownership.
Fire suppression in Southern forests was a passing trend. Southern public land managers banned prescribed burns. But private landowners continued setting controlled burns for timber, agriculture, and grazing throughout the twentieth century. By the 1930s, advocates, including the ornithologist Herbert Stoddard, were preaching the gospel of fire. Scientific publications and presentations by Stoddard and foresters like Herman H. Chapman emphasized the benefits of fire. By the 1940s, even public forests in the South began to return to prescribed burns. The return of fire was not immediate: large federally managed areas like the Okefenokee Swamp held off controlled burning until the 1970s. Today, controlled fire is a routine part of Southern forests, public and private alike.
Western fire has taken far longer to reignite. Federal management of Western forests is the likeliest cause of the delay. This governmental control is a regional anomaly that reflects the East/West divide in public land management. While the U.S. federal government controls thirty percent of American forests nationally, roughly seventy percent of Western woods are public. Only nineteen percent of Southeastern forests are public.
This ownership split created regionally different fire timelines. Publicly owned forests took longer to reclaim fire than private woods. Federal agencies did not begin to accept the importance of prescribed burns until the late twentieth century. One early attempt was the 1963 Leopold Report by an Advisory Board to the Department of the Interior. The report extolled the virtues of prescribed burns, calling them “the most ‘natural’ and much the cheapest and easiest” form of vegetation management, and portrayed fire as a central part of prehistoric American landscapes. The report also objected to the “overprotection” of forests “from natural ground fires.” In the years that followed, the National Park Service attempted to reverse course. In 1964, Kings Canyon National Park conducted trial burns. In 1967, the National Park Service (NPS) officially revised its suppression policy:
Fires in vegetation resulting from natural causes are recognized as natural phenomena and may be allowed to run their course when such burning can be contained within predetermined fire management units and when such burning will contribute to the accomplishment of approved vegetation and/or wildlife management objectives.
On paper at least, by the turn of the twenty-first century, fire was accepted as a potential forest management tool, one with the express support of Congress. Yet Western forests continue to have few prescribed fires. Even when agency staff is eager to use controlled burns, NEPA blocks their path.
II. An Overview of the National Environmental Policy Act
Understanding the larger framework of NEPA helps explain its impact on prescribed burns. NEPA land management actions are lightning rods for long, drawn-out fights involving natural resource extraction industries, environmental groups, states, local communities, and tribes. Litigation can bog down agency action for years, and the analysis conducted for the NEPA process may ultimately have little impact on the agency’s decision. Yet NEPA remains a powerful force for environmental protection. This section briefly reviews the history and doctrine of federal land management under NEPA and its successes in protecting communities and ecosystems from environmental degradation.
A. NEPA’s origins and history
In the late 1960s, Congress launched an investigation into the impacts of urbanization and industrialization on Americ’s physical environment. The final report concluded that mismanagement by federal agencies was causing more environmental degradation than it prevented. In response, Congress passed NEPA in 1969.
NEPA is a short yet sweeping statute. The enacting bill, only five pages long, is often called “environmental law’s Magna Carta” and is even compared to the Constitution. Congress intended NEPA to “promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man.” It creates opportunities for citizen and non-federal government involvement in federal decision-making through “NEPA analysis.”
NEPA requires agencies to analyze the environmental impacts of their decisions, directing federal agencies to prepare “a detailed statement” for every “major Federal action.” Courts have understood NEPA analysis to have two goals: (1) to force agencies to include a review of environmental impacts in planning for a proposed action; and (2) to inform the public of the review itself and the potential impacts. NEPA also created the Council on Environmental Quality (CEQ). CEQ advises the President on environmental policy broadly and is responsible for implementing NEPA and promulgating additional NEPA regulations.
B. Current NEPA framework for federal land management
CEQ regulations structure NEPA review into three potential levels of analysis. The most detailed and procedurally complex form of NEPA analysis is an Environmental Impact Statement (EIS). An EIS is triggered if the proposed action is likely to have a “significant” environmental impact. In these cases, the acting agency must publish several rounds of documents describing its proposed project and analyzing it according to a range of indices. The agency must provide windows for the public to comment on or challenge the action at each phase.
The least detailed form of NEPA analysis is a Categorical Exclusion (CE). CEQ and Congress have determined certain types of actions “do not individually or cumulatively have a significant effect on the human environment.” For these actions, the acting agency may have CEQ approval to “categorically exclude” the project from extensive analysis. CEs are also not subject to administrative review. For these actions, the agency may skip nearly all NEPA procedural hurdles with only limited public comment before implementation. Somewhere between the two extremes of CEs and EISs are Environmental Assessments (EAs), which require a pattern of analysis and comment similar to an EIS but with less stringent standards.
Every agency action on federal land must go through at least some level of NEPA analysis. Analysis specifics may vary across agencies, but all NEPA review shares some central components, like the requirement that the responsible agency must publish a Notice of Intent (NOI) in the Federal Register that summarizes the proposed action and impacts, calls for comments, and outlines the schedule for decision-making. In that initial NOI publication, the agency typically identifies several “alternatives,” or potential actions it may take. The agency must compare these potential actions to a “no action” alternative. CEQ rules also require that all NEPA analyses “involve the public, State, Tribal, and local governments, relevant agencies, and any applicants, to the extent practicable in preparing environmental assessments.”
C. NEPA’s successes in stopping harmful action
In 2020, the Trump administration introduced regulations that would have vastly reduced NEPA’s scope and efficacy, and conservation organizations leapt to defend the statute. A coalition of environmental groups, led by Earthjustice, filed suit against CEQ, challenging the rollbacks as arbitrary and capricious, in violation of the Administrative Procedure Act and NEPA itself. Their defense emphasized NEPA’s “vital role in preventing harm to people and the environment” and as “a crucial tool for public engagement and better governmental decision-making in the fight against environmental racism.”
These groups are right: NEPA processes objectively reduce environmental degradation. EISs for oil and gas projects result in “final decisions that are substantially less impactful on the environment when compared to initially proposed projects.” NEPA has reduced the impact of Florida highways on the Everglades, stopped the dredging of California tidal lagoons, prevented waste incinerator construction in Puerto Rico, and much more.
Even the Trump administration’s cherry-picked data presented to support its NEPA revisions substantiated analysis “that the NEPA process is responsible for substantial changes to project proposals.” The administration selected sixty-eight projects that had been analyzed through EAs. It concluded that similar projects could be excluded from NEPA analysis because they would not “have either individually or cumulatively significant environmental effects.” An analysis of these projects by a collective of environmental organizations pointed out that the data underlying these very projects told a more complicated story:
From proposal to decision, these 68 projects decreased in total size by an astonishing 127,699.5 acres (21%). They decreased in harvest acreage by 60,986 acres (17%). Note that these are net changes to these projects, and therefore likely undercount the total improvements to projects (such as adding or relocating harvest acres or other activities). Still, even with this conservative accounting, the Forest Service decided to drop at least 1 out of every 5 acres it proposed for treatment during the EA process.
All these examples point to NEPA’s success in preventing action. NEPA’s impact is often beneficial when a project is likely to increase environmental degradation. But different groups have different ideas about what projects and actions are likely to be environmentally degrading. Perceptions of risk are relative. And while some use NEPA as a scalpel to remove particularly hazardous aspects of federal projects, others treat it as a cudgel to kill the entire project.
As the previous section describes, understandings of fire vary regionally. The long tradition of fire in the Southeast means that communities see fire as a neutral force. In contrast, Westerners’ experience of near-exclusive suppression means fire remains a concern: state forestry agencies surveyed in the West were nearly twice as likely as those in the Southeast to list “public perception” as a primary barrier preventing prescribed fire. And NEPA acts as a default, tapping into those fears, preventing fire’s return to the West.
III. NEPA’s Chokeholds
NEPA’s procedural focus results in three unintended effects: (A) it leads to complicated and counterproductive funding mechanisms; (B) it discourages meaningful local involvement; and (C) it rewards low-risk inaction over high-reward action. These three consequences act as obstacles to agencies increasing prescribed burns and reflect NEPA’s flawed conception of humans as elements separate from, and only damaging of, nature, as discussed in Part D.
A. NEPA’s expense plus chronic underfunding hampers non-revenue-generating projects
Running a given project through NEPA analysis is expensive and time-consuming. There is limited data on how costly and lengthy NEPA analysis is, but what little we know is telling. One study found that it costs the Forest Service on average $113,683 for a simple CE and as much as $1,376,206 for an EIS. U.S. Department of Transportation records show that, between 1999 and 2011, NEPA projects took, on average, over five and a half years from publication of the NOI to final agency decision, not even counting subsequent delays due to objections or litigation. The extreme time and funds needed to complete a given project cause agencies to bundle individual actions together into compound projects for analysis. A search through National Forest Schedules of Proposed Actions (SOPAs) for NEPA reviews of exclusively prescribed burn projects comes up short. Instead, prescribed burn projects are tied into more general actions, like vegetation management and fuels reduction, wetlands restoration projects, or, most commonly, large-scale timber harvests.
The reliance on profitable projects to fund NEPA analysis for prescribed burns appears to lead to a second funding catch-22. Because fire becomes tangled up in the other aspects of a project, so does the funding. The agency, cash-strapped in general, may become dependent on timber projects that turn a profit to cover the cost of NEPA analysis and the burns themselves. Agency budgeting reflects this practice. Despite an eighty-million-acre backlog of National Forest land in need of active fuels management, USFS, in recent years, has dedicated $0 of its annual budget allocations specifically for prescribed burns. Because no money in its budget is earmarked for fuels management through fire, the agency may need to wait years for the profitable action to fund the controlled burns. Litigation and other NEPA-related hurdles often exacerbate this delay. In the interim years, wildfire may rush in.
Not all agencies work like this. The only agency successfully implementing relatively significant controlled burns has an altogether different funding structure. The Bureau of Indian Affairs (BIA) dedicates roughly a quarter of its fire budget to prescribed burns. As a result, BIA has been able to treat 7.5% of the lands it manages with controlled fire annually. This percentage is a staggering achievement, particularly in comparison with its peer agencies. USFS, NPS, the Bureau of Land Management (BLM), the Fish and Wildlife Service (FWS), and other federal agencies (e.g., Defense, Energy, and Reclamation) all failed to burn even one percent of their forests.
The gap between BIA and its peers may be attributable to NEPA: most BIA burns do not require NEPA analysis. Despite the high level of BIA burning, only four NOIs published by the agency contain the phrase “prescribed burning” or its synonyms. Single actions not associated with a more extensive project may avoid NEPA review if they fit into Categorical Exclusions (CEs). Several CEs apply specifically to BIA-controlled burns, including any fire conducted by a tribe as part of a self-governance compact and any “prescribed burning plans of less than 2,000 acres.”
In theory, other agencies might take advantage of CEs as well. USFS has three regulatory CEs that allow small-scale controlled burns that restore forests or improve wildlife habitat. USFS could also take advantage of the CEs created by the 2003 Healthy Forest Restoration Act (HFRA). HFRA designates areas of “declining forest health” where USFS can exclude prescribed burn projects of up to 3,000 acres from NEPA review. That so few treatments end up as stand-alone CEs speaks to agency prioritization, overall funding levels, community attitudes, and perhaps disregard for advocacy by tribal practitioners. But it also may reflect the massive problem of scale. After half a century of fire suppression, public lands face a logjam of overstocked forests. USFS manages over 193 million acres spread across 154 national forests. The backlog of areas in need of prescribed burning is of an equivalent scale, likely somewhere in the high tens of millions of acres. One study estimated that three national forests alone had a backlog of around 2.9 million acres. Two-thousand-acre chunks are insufficient to make even a dent. BIA manages less than a quarter of what USFS does—56 million acres, many of which are unforested. Through the CE for fires conducted as part of a self-governance compact, BIA can avoid NEPA even for projects larger than 2,000 acres. This option allows BIA to operate fire at much larger scales, without significant NEPA-driven costs.
B. Litigation and lack of meaningful stakeholder involvement dampens fire
NEPA discourages meaningful local involvement, leading to outsider litigation and limiting shifts in community attitudes towards fire. NEPA’s structure dissuades meaningful citizen participation, instead fostering an uncooperative and oppositional dynamic between agencies and other stakeholders. Comments submitted to agencies in NEPA enter a black box and ultimately have little impact on agency decision-making. By the time an NOI is published (usually the first official step in the NEPA process) and the agency has selected a preferred alternative, persuading the agency to change its mind becomes nearly impossible. The only reliable method for forcing change after the NOI is published is to sue the agency.
Many of the elements that make early, ongoing involvement so critical—like the lack of agency changes following NOI publication and doctrines that bar litigation like preclusion and issue exhaustion—are far outside the standard layperson’s comfort zone. This is a system removed from ecological needs. Navigating NEPA requires hiring lawyers, not biologists, silviculturists, or fire experts. Abstruse agency decision-making also rewards sophisticated and repeat players. But trees grow slowly. Foresters regularly plan for forest cycles lasting fifty years or longer and rotate treatment areas around large landscapes. A given patch of forest may not be at the center of NEPA analysis for two or three decades. Locals who care about a particular stretch of woods may care deeply but have no skills to navigate the NEPA maze. The obtuse NEPA process results in an imbalance, where outside communities dominate most NEPA involvement and litigation.
There are two major downsides to this arrangement as it impacts prescribed burns. First, NEPA gives commenters a potent tool but forces them to share it. Because NEPA has practically no substantive requirements, just procedural ones, the agency has enormous leeway to act as it pleases, so long as it checks the required boxes. Agency staff must listen to and respond to comments but are not obligated to accommodate them. The threat of litigation can create an incentive to accommodate. It is a stick for stakeholders to wield in negotiations over proposed actions.
Imagine a particular National Forest has proposed a timber harvest with no prescribed burning or conservation activities. A local NGO submits NEPA comments detailing their strong objection to the project—unless the agency includes a controlled burn. The agency can read between the lines. It understands that, barring including fire as a project component, the organization will sue, pushing the timeline of actual work even farther out. It is in the agency’s interest to make at least some change to the NGO’s area of concern, if only to avoid delay and the cost of litigation. This is a two-way negotiation.
Now, imagine there are three NGOs, each with a different pet concern. The calculation has changed. In the first scenario, the agency could avoid a lawsuit by changing one element. In the second, nothing short of changing everything is guaranteed to eliminate the risk of litigation. Changing everything could mean the project becomes unprofitable. And these three concerns may even be conflicting, so that no amount of accommodation makes all three groups happy. So, the National Forest changes nothing and hopes it can prevail under Chevron deference when the project is inevitably litigated.
When this situation becomes a repeated pattern, everyone knows their comments and attempts to negotiate with the agency are futile. So instead, NGOs submit just enough comments to keep the door to litigation open and wait to file their suit. The goal becomes making it to court, hoping the judge will pick the NGO’s side, and maybe set precedence for future cases on the way. Instead of NEPA acting as a tool to allow public participation in agency processes, it becomes a tool for those with resources to slow down agency action, and it ultimately hands power to the courts.
This system of little local involvement and slow, painful litigation limits agency interest in prescribed burns. Since NEPA takes so long, requires so much of an agency, and costs so much, agencies are likely to focus on projects that give them the most bang for their NEPA buck. Unsurprisingly, over the past two decades, timber shops—the offices within each National Forest that manage lumber contracting and operations—have taken over as the driving force behind USFS management. Projects that have net costs, such as prescribed burning, get short shrift.
The second downside of the imbalance in NEPA commenters is that it prolongs erroneous cultural attitudes towards fire, creating a dangerous positive-feedback loop. Federal agencies spent half a century releasing propaganda fighting against all fire. Every cohort of Americans, from the Greatest Generation to Gen Z, has grown up with an anti-fire mascot, from Uncle Sam in the 1930s to the familiar image of Smokey Bear. Communities have come to fear fire, even when they see its virtues. One meta-study by a USFS researcher reviewed attitudes towards prescribed fire by communities near national and state forests. Although most respondents saw prescribed burning as an “appropriate management tool,” groups of participants remained leery of smoke and the potential for the fire to escape. Others distrusted the government’s ability to execute burns or were unfamiliar with the practice. This unawareness likely hampers acceptance: the study’s authors found “a strong link between knowledge and support for . . . prescribed fire.” But perhaps most fundamentally, the study emphasized that perceptions were flexible but required work. It emphasized that “understanding is a two-way street”:
[T]he fact that there is a clear link between familiarity with a practice and acceptance does not mean that increasing acceptance of prescribed fire is simply a case of providing information . . . . [T]he most trustworthy and most helpful methods of information dissemination were guided field trips and interaction with agency personnel. Such interactive methods are most effective at changing attitudes and behavior as they allow people to question and clarify new information . . . . Manager[]s in turn can learn through this process about key public concerns and issues and tailor their management efforts to account for them.
The type of involvement that changes opinions about fire is precisely what NEPA should, in theory, be providing, but, in reality, is stifling. Agencies do often organize public field trips to discuss projects. Having attended several myself, few participants on these trips are curious citizens interested in a project near their community, tagging along to learn more. Participants are far more likely to be well-informed staff members from state or county governments, partner federal agencies, environmental NGOs, or industry—in other words, the NEPA regulars. The agency staff thus tailors their presentation to the experienced players, who already know the basics of prescribed burns. That leaves those few community members who do show up mostly at a loss and without the type of two-way engagement necessary to change minds. The NEPA process then chugs along, leaving community perceptions of fire unchanged. Perhaps this lack of accessible engagement explains the lack of variation in fire perceptions between people who live within a National Forest wildland-urban interface and residents of metropolitan Chicago.
C. NEPA creates out-of-date agency perceptions and perverse incentives
The combination of NEPA’s funding hurdles, emphasis on risks, and discouragement of local participation distorts agency staff’s feelings towards fire. On the one hand, the high cost of NEPA and bundling of controlled burns onto larger timber packages creates a perception that burns are expensive and may require timber sales to pay for them. NEPA’s inherent focus on risks also emphasizes the downsides of fire, in particular smoke. The upsides it features tend to be focused on fuel reduction and wildfire prevention. Combined, this enables timber shops to cannibalize funding from fire. Agency staff may argue that mechanical thinning (cutting trees at fixed intervals) provides the same protection from wildfire without any of the risks of prescribed burns, but the two treatments are not interchangeable. While both are helpful tools to fight wildfire, fire often has broader benefits to ecosystems that thinning cannot replicate.
On the other hand, NEPA imbues fire with a sense of fear and risk that deters agency staff from pursuing prescribed burns. This emphasis on potential disasters over reliable results is exacerbated by the rare cases when a fire does escape. For years following the 2000 Cerro Grande Fire, for instance, federal agency officials remained “leery” about the risks of controlled fire. The Cerro Grand began as a prescribed burn managed by NPS on the Bandelier National Monument in New Mexico. Overnight, wind gusts intensified the flames while fire crews were short-handed, and the fire broke free, eventually burning over 43,000 acres. While no one died, the resulting wildfire burned over 200 homes and threatened facilities storing radioactive materials at the Los Alamos National Laboratory. The damage to the town and its infamous National Laboratory cost one billion dollars.
In part because of the potential danger to Los Alamos’s nuclear facilities, the fire quickly became political. Articles and opinion pieces questioning prescribed burning appeared in national press outlets, including CBS, the New York Times, and the Chicago Tribune. A particularly scathing opinion piece in the Wall Street Journal declared that “the history of prescribed fires shows it is a largely failed policy.” Unsurprisingly, the fire instigated a flurry of litigation. NPS, the National Interagency Fire Center, and Congress all launched investigations into the fire. Interior Secretary Bruce Babbitt ordered a month-long suspension of all controlled burning activity.
Future prescribed burns live under the cloud of this history. A fuels manager noted that he must discuss the potential for escape in every NEPA analysis. For agency staff conducting forest management who live in small rural communities, the risks of escape feel perilously personal. Although the fuels manager is confident in his and his team’s skills, he obtained personal liability insurance—just in case a prescribed fire escapes. “You need to be gutsy to make a difference with prescribed burns . . . . [I]t takes personal risk-taking to make it happen.”
The uproar the Cerro Grande fire caused was extreme but not isolated. NEPA forces the acting agency to confront concerns around smoke with every project. Smoke is dangerous, whether it stems from prescribed burns or a raging wildfire. “Wood smoke contains many of the same toxic and carcinogenic substances as cigarette smoke” and leads to “increased risk of acute respiratory and cardiovascular outcomes, including exacerbations of asthma and chronic obstructive pulmonary disease, acute lower respiratory tract infections, myocardial infarction, stroke, and arrhythmias.” NEPA public comments regularly raise smoke as a potential reason to avoid or limit prescribed burns. The question of smoke became particularly difficult following the outbreak of Covid-19. Because the virus attacked lungs, commentators worried that prescribed burns could exacerbate an already deadly situation. USFS and several other state and federal agencies opted to cancel all burns for the 2020 season.
In reality, smoke concerns from prescribed burns are likely overblown. The amount of smoke produced by a prescribed burn is generally less dangerous and more controllable than wildfire smoke. But the attention that smoke gets reflects a more significant problem with agency attitudes toward fire, one reflected in NEPA’s structure. Agencies often act as if the actions they consider taking exist in a vacuum. Analyses may ignore the realities of climate change or the impact of actions taken over international borders. Although courts have held agencies accountable for the former, which was particularly egregious and obvious under the Trump administration, the pattern reflects a more systemic issue.
In conducting a NEPA review, an acting agency analyzes a set of discrete hypothetical scenarios. The agency will compare the impacts of one or more “action alternatives”—each scenario within the range of potential scenarios the agency is considering constitutes one “alternative”— against a “no action alternative”—what the conditions would be if the agency did nothing.
But when it comes to fire management on today’s federal lands, there is no such thing as a “no action” alternative. Fires are inevitable in Western and Southeastern landscapes. And although agencies are moving away from the 10 a.m. policy to a more fire-friendly future, fire suppression is still the norm. So, paradoxically, prescribed burn alternatives more closely mirror the landscape as it would exist without agency action—mottled by fire—and no-action alternatives reflect high-intensity action. This inverted description of action and inaction produces an imbalance of perceived risk. As one commenter noted,
Fire-dependent forests will burn eventually, meaning the responsible choice is between periodic, lower concentrations of smoke in planned dispersal patterns or unplanned, heavy emissions where smoke drift and accumulation is uncontrolled. Current policy treats “unmanaged” wildfire occurrence and the resultant effects as “an act of God” when human management decisions and inaction have actually contributed to conditions that support large, severe fires.
Because NEPA creates an aversion to risk, prescribed burns remain controversial, at least to agency politicos if not to foresters. The irony of this fear of prescribed burns is perhaps ironically encapsulated by the aftermath of the Cerro Grande fire: just a decade after it wreaked havoc on Los Alamos, it saved the town from further destruction by yet another fire. Even bad fire can be good.
D. NEPA’s disconnect from nature: A theoretical framework
Each of these three hurdles—funding, litigation, and counterproductive incentives—points to a more profound defect within NEPA: the statute assumes that human activity is innately bad for nature. In many cases, as discussed above in section III.C, this baseline assumption matches the reality of proposed projects, and NEPA’s tendency to reduce projects protects natural environments and communities. When NEPA analysis reviews a hazardous mining operation, a highway proposed to run through a neighborhood, or a proposed clearcut, this assumption tends to align with reality. Little that stems from these types of development is good for the earth. But just because many agency actions are harmful to the environment does not mean all potential human activity is environmentally harmful. Humans are capable of taking positive action too. We can restore wetlands, compost urban waste, or reintroduce native species.
These kinds of restorative actions are often better than doing nothing. Yet many Americans evaluate any human activity the same way NEPA does, assuming net harm. Surveys confirm that although people see themselves as part of nature, they simultaneously perceive nature as spaces where humans are absent. Environmentalists often hold this same perception, a trend Robin Wall Kimmerer describes in Braiding Sweetgrass:
One otherwise unremarkable morning I gave the students in my General Ecology class a survey. Among other things, they were asked to rate their understanding of the negative interactions between humans and the environment. Nearly every one of the two hundred students said confidently that humans and nature are a bad mix. These were third-year students who had selected a career in environmental protection, so the response was, in a way, not very surprising. They were well schooled in the mechanics of climate change, toxins in the land and water, and the crisis of habitat loss. Later in the survey, they were asked to rate their knowledge of positive interactions between people and land. The median response was “none.”
The very language of the historic (and predominantly white) American environmental movement reflects this perception. Terms like “preservation” convey that the environmentalist’s work is defending nature from humanity and that the end goal is to have two separate and closed systems, with humans kept away from nature.
We can see this type of understanding in the structure and flaws of NEPA. To an agency, a prescribed burn and a timber harvest are essentially the same activity: they both remove trees from woods, so both are analyzed in practically the same way and at the same cost. This high cost leads to the bundling and defunding of prescribed burns discussed above. The few mechanisms to change agency action through NEPA—primarily but not exclusively litigation—reflect a pessimistic view of human activity. NEPA’s impact decreases agency activity on a fairly large scale.
BIA’s success in implementing prescribed burns points to a fundamentally different understanding of nature and human activity, one grounded in indigenous practice. Many Native traditions emphasize the connectedness of humans and nature as one system. “In Indigenous cultures, resilience is considered as a holistic concept—everything is related.” Contemporary activism by tribes reflects this understanding that human activity can be beneficial and that traditions of prescribed fire connect directly to indigenous land practices. “[F]ire-dependent American Indian communities such as the Karuk and Yurok peoples stalwartly advocate for expanding prescribed burning as a part of their efforts to revitalize their culture and sovereignty . . . . However, land dispossession and centralized state regulations undermine Indigenous and local fire governance.” And BIA stewardship is no anomaly. Successful, controlled-burn regimes are led by indigenous communities internationally: “In exceptional Australian and South American contexts where fire governance is comparatively decentralized and Tribal sovereignty and land title are no longer as encumbered by colonial regulations, Indigenous cultural burning is achieving desired social and ecological outcomes without a heavy reliance on external funding and metrics.”
Recognizing that NEPA’s tacit assumption—that all human activity is dangerous to nature—is out of line with best fire practices identifies a fundamental problem. The following section dives into several strategies to combat the impact of this assumption.
IV. How to Return Fire to Western Landscapes
NEPA stands in the way of fire on federal lands. Its procedural emphasis on inaction causes budget constraints, excludes local engagement in favor of outsider litigation, and creates paradoxical incentives and understandings of risk. Policymakers and the Biden administration can increase prescribed burns in the West by addressing the individual issues within the existing NEPA framework, fundamentally changing how NEPA works, or reconsidering who should manage federal lands.
A. Increase earmarked funding
One relatively straightforward solution would be to designate significant funds for executing and analyzing prescribed burns. Increased funds could help untangle controlled burns from more complicated (and likely to be litigated) NEPA analyses, allowing agencies to take advantage of existing CEs or smaller, smoother EAs. By increasing money for burns specifically, agencies also might have additional capacity to conduct community education about fire management, increasing local involvement with and understanding of controlled burns.
B. Make NEPA and agency processes more inclusive of those impacted by wildfire
To reduce the high levels of litigation involving NEPA-prescribed burns, legislators could amend NEPA’s participation structure to increase the role of commenters in driving agency action. Revised participation structures might create local stakeholder groups with diverse membership, require that agencies involve the stakeholders in all NEPA projects, or increase the level of deference due to an agency action if a community stakeholder group signs off on a given project. Increased community power would build off of existing stakeholder coalitions like the Northeast Washington Forestry Coalition on the Colville National Forest. On the Colville National Forest, a robust collaborative process that limits litigation allows USFS to sell a timber project before completing NEPA, in an “A to Z” project. This reversing of the normal process ensures the agency has funds to include prescribed burns and other conservation activities in the NEPA process. Increasing stakeholder involvement would replicate BIA processes and, it is hoped, result in similarly successful fire management.
This solution is not without its downsides. In particular, it might allow groups with the most money, interest, and local influence—essentially industry—to capture the supposedly representative stakeholder process. But, in many places, industry capture happens regardless. If industry is already driving agency decision-making (especially at USFS, where timber shops rule the roost), it is worth exploring ways to expand the use of much-needed prescribed fire.
C. Expand Categorical Exclusions for suppression activities
A third way to increase prescribed burns would simply be to expand the scope of CEs. The availability of CEs certainly aids the BIA in expediting burns, and additional prescribed burn-specific CEs could free other agencies to follow their lead. But CEs are controversial. Many environmental advocates are rightly concerned about the potential for CEs to be exploited (particularly when the exception is not limited to non-fire thinning) or for unanalyzed fire to cause unintended damage. But policymakers could limit the applicability of CEs to cover only prescribed burns without additional treatments. And the increasing use of CEs might help begin the process of righting agency understandings of fire and inaction. If agencies were free to conduct small-scale “good” fire, it might open their eyes (and those of community members) to the long-term benefits of habitual fire.
D. Legislation that prioritizes science and community over procedural rights
A more fundamental solution would be to overhaul NEPA and its related statutes to center substantive rights for natural improvement grounded in science. Legislation could establish fire on landscapes as the baseline for no-action alternatives or require agencies to manage some set percentage of land for fire conditions. It could constitute a more essential revision to NEPA and require more significant consideration of context and dynamic conditions. Any of these solutions would complement the legacy of the substantive federal environmental law statutes, reflecting our new age of wildfire and climate change.
Some within within Congress exists to overhaul NEPA, but current efforts tend to focus on speeding up analysis or reducing procedural hurdles. These potential reforms reflect industry concerns about the length of the process and may reduce rigorous NEPA review of truly environmentally degrading activities. Given the deeply divided nature of Congress and Republican support for NEPA reform (even if on murky bases fundamentally opposed to the critiques discussed in this paper), it is unlikely that the Democratic caucus—most likely to be pro-fire and ecosystem-based management—could get behind a similarly framed (if fundamentally different) change to NEPA.
E. Return lands to tribal control
One final way to increase prescribed burns would be to return federal lands to tribal jurisdiction. Recognition of indigenous sovereignty, including over public lands, is a goal of the Land Back movement, an international campaign to restore stolen indigenous land to Native people. Land Back is deeply connected to other movements recognizing the injustices of American colonialism.
Discussions about reparations have become a larger part of the public consciousness in recent years. Yet, to date, there has never been a good faith attempt at restorative justice under American democracy. Even the few attempts at reparations for disenfranchised communities have come at the cost of another community’s resources. For example, the 40 acres and a mule promised to formerly enslaved people were, in fact, 40 acres of stolen Indian land.
Although the federal government has yet to enact any kind of systemic land-back regime, transfers are happening on a smaller scale. In 2020, after decades of advocacy by the Confederated Salish and Kootenai Tribes, Congress passed legislation returning the 18,000-acre National Bison Range in Montana to the tribes. Similarly, relatively small-scale transfers are happening internationally. In 2017, Australia handed management of 87,000 hectares to a consortium that centered the Tribal Council of the Nari Nari, a local indigenous group.
Fee-simple transfers of America’s federal lands require congressional action. But federal agencies already have the power to transfer lands to tribal management. Under the Indian Self Determination Act, agencies may form sovereign-to-sovereign agreements with tribes to operate federal programs, including land management. Co-management case studies reveal these contracts’ successes, including for agencies’ bottom lines. For example, the Grant Portage Band of Minnesota Chippewa was able to reduce maintenance costs for the Grand Portage National Monument, compared with NPS services. Yet today, co-management is underutilized; despite hundreds of tribes and millions of acres of public land, federal land management agencies currently have fewer than two dozen such contracts.
Respecting and restoring tribal sovereignty is its own end, not merely a means to more sustainable fire management. It is an end that the federal government and non-natives are increasingly supporting. Co-management agreements of the type authorized by the Indian Self-Determination Act probably does not meet the demands of the Land Back movement; self-determination is not the same thing as full sovereignty. But tribal co-management presents an opportunity to restore tribal management and indigenous fire to federal lands.
Conclusion
Climate change is an existential threat, both globally and locally. Wildfires are a prime example of the type of harm threatening communities in a hotter, dryer world, and prescribed burning is one of the few tools we have to combat this destruction directly, to protect communities and ecosystems. Yet, in the American West, the legal framework of NEPA stands in the way of effective fire management.
As Part IV discussed, this problem has any number of solutions, from overhauling NEPA to agency rulemaking to legislative reapportioning. Only one of these solutions could be enacted by the Biden administration tomorrow: large-scale tribal co-management. Professor Kevin Washburn described the relative simplicity of this approach: “[The l]egal infrastructure already exists in federal law to support greater tribal management or co-management of federal public lands. While some modest federal appropriations could help, no major new legislation is essential to achieve substantially more progress.”
Restoring indigenous sovereignty would almost certainly lead to fundamental shifts in fire management. BIA and American Indian tribes have demonstrated that they can restore prescribed burns to landscapes. If the federal agencies tasked with land management are struggling to manage fire appropriately, why not support those who can and who have, in fact, been sustainably stewarding this land for millennia?
