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

The Infrastructure Investment and Jobs Act (“IIJA”)[i] signed into law this week 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 impacted the safety of hundreds of communities, especially in the West. [ii] Millions of people whose business, recreation and enjoyment depend on healthy forests will find important new policy and funding issues in the bill. We address these in this first in a series of articles on how the IIJA impacts the various sectors of the U.S. economy.[iii]

Last summer, the West experienced one of the worst fire seasons on record. Images of San Francisco bathed in an orange sky filled the news.[iv] Colorado experienced its two largest fires in state history: the Cameron Peak Fire[v] and the East Troublesome Fire.[vi] Oregon experienced a series of 100-year fire events which burned over a million acres, destroyed over 4,000 homes, and set records for poor air quality.[vii] 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.[viii] 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.[ix]

While 2021 was a reprieve in some areas, wildfires have already burned 6.5 million acres this year, compared to 8.6 million acres over the same time period in 2020.[x] California experienced its second largest fire in state history.[xi] Not only have these fires brought great destruction, they also cause enormous carbon emissions from a resource that has the potential to be the greatest carbon sink.[xii]

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.[xiii]

NEPA requires the federal government to study the effects of any “major federal action” affecting the environment.[xiv] The statute imposes a purely (in theory) procedural requirement to take a hard look at the environmental consequences of federal activities.[xv] Although procedural in nature, NEPA can be used to delay, and through those delays, stop projects altogether.[xvi] 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 establishes a new statutory categorical exclusion (“CE”) from NEPA for fuel breaks.[xvii] A statutory CE altogether exempts projects meeting the statutory CE’s requirements from NEPA’s environmental analysis requirements.[xviii] This new fuel break CE applies to fuel break 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. As agencies continue to confront increased wildfire risks, this will provide a secure and timely path forward for fuel break projects that are needed to facilitate effective wildland firefighting.[xix]

The Act 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.”[xx] The Secretary of Agriculture can use this 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 use in NEPA cases.[xxi] 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.[xxii] 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 would 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.[xxiii] That includes $500 million in grants for community wildfire defense, $500 million for conducting mechanical thinning, $500 million to install and research fuel breaks, 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.[xxiv] 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.[xxv] That program funds activities to restore fish passage in streams at road and trail crossings, decommission unauthorized user-created roads, and decommission temporary roads.[xxvi] 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.

For more information, please contact Lawson Fite and James Pollack.

The authors wish to thank Brad Marten for his contributions to this article.

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To our Readers: This is the first in a series of articles about the impact of the Infrastructure Investment and Jobs Act (“IIJA”) on various sectors of the economy.
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[i] H.R. 3684, 117th Cong., 2d sess. The full text of the enrolled bill is available at https://www.congress.gov/bill/117th-congress/house-bill/3684/text.

[ii] The IIJA is at least as significant as 2003’s Healthy Forests Restoration Act, 16 U.S.C. § 6501 et seq.

[iii] The majority of forests in federal ownership (76%) are administered either by the Forest Service or the Bureau of Land Management. Anne A. Riddle, Timber Harvesting on Federal Lands, CRS Report R45688 (Updated July 28, 2021); https://crsreports.congress.gov/product/pdf/R/R45688.

[iv] Justine Calma, The Sky is on Fire in San Francisco, and We Flew a Drone Through It, The Verge (Sept. 9, 2020), https://www.theverge.com/2020/...;

[v] Cameron Peak Post-Fire BAER, Incident Information System (July 14, 2021), https://inciweb.nwcg.gov/incident/7210/.

[vi] East Troublesome Fire, Incident Information System (June 21, 2021), https://inciweb.nwcg.gov/incident/7242/.

[vii]See, e.g., Zach Urness, Oregon's 2020 wildfire season brought a new level of destruction. It could be just the beginning, Salem Statesman Journal, Oct. 20, 2020; https://www.statesmanjournal.com/story/news/2020/10/30/climate-change-oregon-wildfires-2020/6056170002/.

[viii] Ore. Dep’t of Envtl. Qual., Wildfire Smoke Trends and the Air Quality Index, July 2021; https://www.oregon.gov/deq/wildfires/Documents/WildfireSmokeTrendsReport.pdf.

[ix]Wildfires and Acres, National Interagency Fire Center, https://www.nifc.gov/fireInfo/fireInfo_stats_totalFires.html.

[x]National Fire News, National Interagency Fire Center, https://www.nifc.gov/fire-information/nfn.

[xi] Dixie Fire (CA), Incident Information System (October 26, 2021), https://inciweb.nwcg.gov/incident/7690/.

[xii]See Henry Fountain, California’s Wildfires Had an Invisible Impact: High Carbon Dioxide Emissions, N.Y. Times, Sept. 21, 2021; https://www.nytimes.com/2021/09/21/climate/wildfire-emissions-climate-change.html.

[xiii] Gov’t Accountability Office, Little Information Exists on NEPA Analyses, Rept. No. GAO-14-370 (Apr. 2014), at 11; https://www.gao.gov/assets/gao... (Forest Service prepares 24% of federal EISes, twice as much as any other agency).

[xiv] 42 U.S.C. § 4332(C); 40 CFR § 1508.18.

[xv]Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350–52 (1989).

[xvi] For discussion of how NEPA can delay clean energy projects, see our discussion here: https://www.martenlaw.com/news-and-insights/climate-change-proponents-meet-nepa-opponents-the-case-for-reforming-americas-bedrock-environmental-law.

[xvii] IIJA § 40806.

[xviii]See 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).

[xix] Previous fuel break projects have proceeded under different CEs, were unsuccessfully challenged in court, and are currently on appeal in the Ninth Circuit. SeeLos 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.

[xx] IIJA § 40807. Note that this emergency authority is substantially different from current regulatory authority to issue an “emergency situation determination” that truncates administrative appeals. See 36 C.F.R. § 218.21.

[xxi]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).

[xxii]See Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011).

[xxiii] IIJA § 40803.

[xxiv] IIJA § 40804.

[xxv] IIJA § 40801.

[xxvi] Legacy Roads and Trails Program Overview, USFS, https://www.fs.fed.us/restoration/Legacy_Roads_and_Trails/overview.shtml.