Federal Forest Wildfires, Climate, and Liability

Thursday, November 9, 2023
Linda Breggin

Senior Attorney; Director of the Center for State, Tribal, and Local Environmental Programs

This past summer, devastating fires ravaged Hawai’i and smoke from Canada’s record-breaking wildfire season blanketed communities across the American East. The fires offered a vivid reminder of the destructive capabilities of wildfires such as those that burned on American shores during the record- breaking 2020 wildfire season that choked western cities.

In a thoughtful Ecology Law Quarterly article, entitled Climate Liability for Wildfire Emissions from Federal Forests, University of California, Los Angeles School of Law Professor William Boyd calls out the “repeated policy failures” that have led to a “wildfire crisis” in the United States that “shows no sign of abating.”

He spotlights that in many cases these fires—which not only produce sky-clogging smoke but also release huge amounts of previously captured carbon dioxide—occur on federal public lands. Professor Boyd proposes a creative and provocative new climate liability and funding mechanism that he contends will facilitate much-needed long-term investments in forest protection, restoration, and resilience. Rather than focusing on forests as carbon sinks that can offset emissions and help achieve climate mitigation goals, he highlights the need to increase forest resiliency before fires start; otherwise, these valuable carbon sinks might turn into carbon sources. Professor Boyd acknowledges that forest restoration would not eradicate wildfires but could limit wildfires’ severity. He emphasizes, however, that “the Forest Service will not be able to meet the pressing challenge of making western forests more resilient in the face of accelerating climate disruption without a sustained commitment of significant resources for long-term restoration efforts.”

To address this problem, Professor Boyd offers a multi-part solution. First, treat federal forests as federal facilities—as other federal property is treated under other environmental statutes—for climate liability purposes. Second, impose strict liability for all carbon emissions arising from wildfires on federal lands. To avoid distorting incentives surrounding important prescribed burning activities, Professor Boyd recommends limiting liability to unplanned wildfires. Further, all other liability related to wildfires should remain undisturbed by the introduction of emissions liability. And finally, to assess the damages associated with the emissions, Professor Boyd suggests using the federal government’s social cost of carbon estimate. Any funds raised through the imposition of climate liability would be paid directly from the U.S Treasury into a specific fund created for a particular purpose. In this case, that purpose would be funding “on-the-ground restoration and resilience activities” on federal lands.

According to Professor Boyd: “For too long, forests have been discounted in climate policy, given the obvious and understandable attention to the energy sector. But as the forest fires in Canada this summer and the current fires in Indonesia and Brazil make clear, forests and land use may well turn out to be the hardest part of the climate crisis. It is time to find ways to use climate policy to make the necessary investments in forest restoration and resilience, rather than treating forests as a source of cheap offsets for the energy and industrial sectors.”

Aware of the political and practical considerations that could sink his policy proposal, Professor Boyd offers several responses to address these concerns. First, strict liability regimes are easy to administer, even more so here because damages are calculated using the government’s own social cost of carbon. Creation of a dedicated fund with a sort of automatic allocation mechanism also insulates the funds and underlying activities from annual squabbles over agency appropriations and budgets. Perhaps the largest political hurdle the policy faces is the fact that some would equate the strict liability regime proposed with a carbon tax applied to wildfire emissions. In addressing this critique, Professor Boyd observes that a liability framing is more appropriate because it “recognizes that there are actual harms associated with wildfire emissions that should be compensated.”

He further explains: “By framing this in the context of liability and obligations rather than fees and taxes, we remind people that the federal government, and other landowners, have a responsibility to manage their forests in a manner that does not impose massive harms to public health and the environment.”

Professor Boyd’s article was recognized by the Environmental Law and Policy Annual Review (ELPAR) as one of the Top 20 environmental law and policy articles published during the 2021-2022 academic year based on the creative, persuasive, impactful and feasible proposals it outlines. ELPAR is a collaboration between the Environmental Law Institute (ELI) and Vanderbilt University Law School that aims to bridge the gap between academic scholarship and environmental policymaking and practice. ELPAR is published as a special August issue of the Environmental Law Reporter. Articles are selected by Vanderbilt Law School student editors, with the assistance of an expert advisory committee, ELI senior staff, and course instructors Michael P. Vandenbergh and Linda K. Breggin. In a prior post, ELI Research Associate Tori Rickman explains the ELPAR process in greater depth.