California’s Forest Fire Tragedy

 

Over the past several weeks, California has been gripped by two of the most deadly forest fires in its history: the Camp Fire north of Sacramento and the Woolsey Fire in Ventura and Los Angeles counties. At last count, the toll of this disaster includes 76 dead and hundreds missing, the destruction of nearly 10,000 homes, and unhealthy air quality—now called the “dirtiest in the world”—throughout the San Francisco Bay Area, leading to the postponement of many local events, including moving the “Big Game” between Cal and Stanford from November 17 to December 1.

An enormous debate has developed over the cause of both fires. Outgoing California Governor Jerry Brown has loudly proclaimed that climate change deniers are “definitely contributing” to the onslaught of new fires. But the best evidence says otherwise. Global temperature increase has been nil over the last 20 or so years, notwithstanding the increased levels of carbon dioxide in the atmosphere. Similarly, the repeated claims that we have had more unstable global climate patterns within that period is likewise false. According to Professor David B. South of Auburn University, “data suggest that extremely large megafires were four-times more common before 1940” than today, even though CO2 levels were lower.

Local variables have transformed California far more dramatically than climate change. Thanks to a large influx of new residents to California in recent years, new homes have been built close to the forests, as happened in the now torched town of Paradise, where the many new homes burnt to the ground were quite literally in harm’s way. On the forest floor, as explained in the Wall Street Journal, an accumulation of dead wood, coupled with too much new growth, stymied the efficient growth of healthy trees that are better able to resist fires.

Every bit as important is the major change in the philosophy of land use management. Much of the forest land in California is now owned by the state and federal government. These lands have proved far more vulnerable to forest fires than properties owned by private groups. Private lands are managed with the goals of conservation and production. The management of public lands has been buffeted by legislative schemes driven by strong ideological commitments. Writing last year, Republican Congressman Tom McClintock noted that his air inspections revealed a distressing pattern: “The [privately] managed forests are green, healthy and thriving. The neglected federal forests are densely overcrowded and often scarred by fire because we can’t even salvage the fire-killed timber while it still has value.”

But why? The answer hearkens back to the onset of the environmental movement in the late 1960s and early 1970s. Everyone at the time was rightly in agreement that something had to be done about the rising threats of air and water pollution. But the means chosen to exercise this vital missions resulted in the passage of federal and state statutes that quickly went badly awry. Two key federal statutes illustrate the dimensions of the basic problem—the National Environmental Policy Act (NEPA) of 1970 and the Endangered Species Act (ESA) of 1973. These statutes have overlapping purposes. NEPA has commonly been called a “procedural” statute whose main purpose is to “encourage productive and enjoyable harmony between man and his environment” by taking steps to “prevent or eliminate damage to the environment,” and “to use all practicable means” to achieve these efforts. NEPA required “all agencies of the Federal government” to prepare detailed Environmental Impact Statements to allow the discharge of that mission.

NEPA was originally conceived as a device to encourage collaboration among government officials and various public and private groups to achieve its ends. But in 1971, Judge J. Skelly Wright of the District of Columbia Circuit Court of Appeals added a new dimension to the equation in Calvert Cliffs’ Coordinating Committee v. United States Atomic Energy Commission, which held that, in light of NEPA’s strong environmental mission, any private party could bring an action in federal court to review any administrative approval of a proposed project. He then celebrated this development in no uncertain terms: “These cases are only the beginning of what promises to become a flood of new litigation—litigation seeking judicial assistance in protecting our natural environment.”

That judicial maneuver transformed the statute. Most parties did not want to sue to block projects. It was only the activist environmental groups with the strongest commitment that came forward. And when they did, there was no longer a collaborative process that involved parties on all parts of the political spectrum. Now the sole party before the court was the group most determined to see the project or activity stopped. On this score, delay was always on its side. The additional time could financially wipe out the private parties, whose projects were thrown into limbo. To make matters worse, the Supreme Court in the 1983 case, Motor Vehicle Manufacturers Association v. State Farm, insisted that in each case, the reviewing court must take a “hard look” at the proposed project to see that it conformed in every respect with the substantive law. In most cases, the consequence of any slip up—a few of which are highly likely in any comprehensive assessment—meant that the process had to be restarted with a supplemental environmental analysis. Sadly, the whole process was misguided insofar as it insisted that all negative aspects of a project had to be evaluated before any work on the project could be done. In so doing, environmental law departed from the far more sensible common law rules that awarded an injunction against certain activities only in the case of actual or imminent harm. This sound approach allowed for project defects to be repaired during the course of work, after all parties had acquired far greater knowledge of the source of environmental concerns and their possible remedies.

The aggressive reach of NEPA is compounded by the high-level ambitions of ESA, which requires all federal departments and agencies to “seek to conserve endangered and threatened species and . . . utilize their authorities in furtherance of the purposes of this Act,” often by the designation of “critical habitat.” Critical habitat designation creates a weak system of private property rights, and its validity as a matter of federal administrative law is now before the Supreme Court in Weyerhaeuser v. United States Fish and Wildlife Service.

The successful management of any complex environmental system requires complicated tradeoffs between various objectives like the preservation of diverse species, fire prevention, the construction of dams and waterways, and the harvesting of valuable timber. But any tempered approach of balancing costs and benefits of environmental regulations was effectively scuttled by the Supreme Court in Tennessee Valley Authority v. Hill (1978), which took the position that the recent discovery of a new endangered species, the snail darter, took priority over the completion of the Tellico dam, which was in the final stages of construction. The notion of tradeoffs was pushed emphatically to the back burner.

The combination of ESA and NEPA shifted the environmental movement in the wrong direction. One result was, as Congressman McClintock noted, an 80 percent reduction in the number of trees that were harvested and sold on public lands in California reducing the number of operating saw mills there from 149 in 1981 to 27 in 2017. The added layers of bureaucratic oversight introduced state and federal permit requirements before any new activity on land, such as logging, could begin. The upshot of this change was that management questions, especially on public lands, moved from managers on the ground who had local knowledge of the situation, to bureaucrats in distant places who lacked it. Those bureaucrats also tended to think in the same absolutist terms that informed the interpretation of both NEPA and ESA in the courts—that is, preserving the environment was the foremost goal no matter how strong the competing interests. So began the restraint on the cutting of trees and the clearing of deadwood and underbrush. At no point was the process guided by the insight that prophylactic measures today might prevent greater environmental destruction tomorrow. So, by preventing, for example, strategic burns that might protect vulnerable sites, environmental policies created a situation in which minor events, such as a spark from a power line or a stray cigarette butt, could cause disasters in the form of large-scale loss of life and destruction of property coupled with thick blankets of pollution that spread for miles.

It is an odd way of calculating priorities. California and the federal government take immense steps to stop, for example, tailpipe emissions, which at their worst did not cause a fraction of the pollution that the forest fires are now creating throughout the state. The overdue decision to rethink the logging policies in state and national forests is a welcome first step. But it is only a first step. Statutes like NEPA and ESA are filled with procedural and substantive mistakes that have to be rethought from the ground up, with a suitable dose of modesty. Go after pollution; introduce sound management policies; pay for the condemnation of critical habitat; don’t fret about global warming. Focused, well-balanced policies are the effective antidote to the grandiose, but misguided, environmental polices of 50 years ago.

© 2018 by the Board of Trustees of Leland Stanford Junior University

There are 12 comments.

  1. Ontheleftcoast Inactive

    Richard Epstein: Go after pollution; introduce sound management policies; pay for the condemnation of critical habitat; don’t fret about global warming.

    The latter is not going to happen with the current or newly elected California leadership in place. It would constitute a major betrayal of the power base in the state.

    For the last half century, if you were educated in the California public schools you were indoctrinated into an environmental theology which sees every proposal @richardepstein made as demonic. Electric cars are virtuous, fuel mass reduction, strategic fire breaks, and eminent domain condemnation of critical habitat are vicious. The indoctrinated public will keep those ideas from becoming reality; devotees elect politicians who compete to make more and more extreme pledges in support of that theology.

    They are allied with the public sector unions. California’s unfunded state, county and city pension obligations preclude are already causing cuts in critical public safety services as agency budgets go to pay retirees. No how, no way is anything going to be done until California’s burnt offerings to the environmental gods number many, many more. 

    Not to mention that the state’s planners have systematically planned to reduce rural and suburban populations and consolidate the population in the cities; the fires serve that purpose. Omelet. Eggs.

    • #1
    • November 19, 2018, at 4:06 PM PDT
    • 6 likes
  2. James Gawron Thatcher

    Richard Epstein: Those bureaucrats also tended to think in the same absolutist terms that informed the interpretation of both NEPA and ESA in the courts—that is, preserving the environment was the foremost goal no matter how strong the competing interests. So began the restraint on the cutting of trees and the clearing of deadwood and underbrush. At no point was the process guided by the insight that prophylactic measures today might prevent greater environmental destruction tomorrow. So, by preventing, for example, strategic burns that might protect vulnerable sites, environmental policies created a situation in which minor events, such as a spark from a power line or a stray cigarette butt, could cause disasters in the form of large-scale loss of life and destruction of property coupled with thick blankets of pollution that spread for miles.

    Richard,

    Now you are getting it. There is nothing so stupid and blind as an environmental ideologue. They not only protect us from fantasy problems that don’t exist but their protections often have unintended consequences of disastrous proportions. When the death toll comes in for this disaster (not to mention the dollar cost of the destruction) you would think that you’d see a change of tune. However, ideologues never change their tune. That is why we must have political action. The lapdog spineless media will never buck the environmentalists. Only the people can save the country through the ballot box.

    Regards,

    Jim

    • #2
    • November 19, 2018, at 5:03 PM PDT
    • 3 likes
  3. DonG Coolidge

    James Gawron (View Comment):
    Only the people can save the country through the ballot box.

    That is a depressing thought. I have no faith in educated people to stop being stupid.

    • #3
    • November 19, 2018, at 10:58 PM PDT
    • 1 like
  4. Kozak Member

    Richard Epstein: But the best evidence says otherwise. Global temperature increase has been nil over the last 20 or so years, notwithstanding the increased levels of carbon dioxide in the atmosphere. Similarly, the repeated claims that we have had more unstable global climate patterns within that period is likewise false.

    Now now. Can’t let facts get in the way of the Pravda.

    • #4
    • November 20, 2018, at 5:29 AM PDT
    • Like
  5. Quietpi Member

    And, tragically, California’s gov. elect doesn’t believe a word of it. Even the Modesto Bee, one of the most left-… leaning? no, not strong enough… leftist – there we go – newspapers, had an editorial a couple days ago that hinted that maybe logging was a better solution after all. Nice shot, ModBee – you helped all these enviroidiots get elected.

    • #5
    • November 20, 2018, at 7:34 AM PDT
    • 3 likes
  6. Unsk Member

    Richard, an extremely well researched, reasoned and informative post.

    Of course, Left Coast is right in that it will likely be a day when hell freezes over when the brainwashed and indoctrinated millions of my state actually thoughtfully review our ridiculous environmental policies and make appropriate changes. That said, informing the people of exactly how we got into this mess is a good first step in the long haul to getting things changed. 

     

    • #6
    • November 20, 2018, at 7:58 AM PDT
    • 3 likes
  7. Ontheleftcoast Inactive

    Unsk (View Comment):
    That said, informing the people of exactly how we got into this mess is a good first step in the long haul to getting things changed.

    Absolutely. That change is long overdue. It would be much more just if those responsible for these murderous policies were to die deaths as agonizing as the poor people trapped by the Paradise Fire. Or in prison, or at least disgrace, but none of that will happen. 

    Maybe more deadly fires won’t have to happen too many more times during that long haul, but the odds are against it.

    • #7
    • November 20, 2018, at 8:31 AM PDT
    • Like
  8. Ontheleftcoast Inactive

    Lame duck California Governor Jerry Brown quietly reversed course on logging back in August.

    Here’s how Governor elect Gavin Newsom and John Cox, the Republican he beat 60.9% – 39.1 % campaigned:

    To Newsom, “the science is clear: Increased fire threat because of climate change is becoming a fact of life in our state.”

    In addition to improving how the state clears dead trees and vegetation, he is proposing a combination of technological solutions. Newsom’s tech wish list includes installing an early-warning infrared camera network that would spot wildfires and alert public safety officials. And he wants to use artificial-intelligence technology to predict and contain wildfires.

    Newsom conceded that many of these ideas are “short- and medium-term solutions. California must continue to lead the nation and the world in fighting the real cause of this increase — climate change.”

    Cox said “some of the most prominent climate change culprits in California are the Sacramento politicians that have not managed our forests and done the things needed to prevent the severity of recent forest fires. These fires are huge net carbon polluters, and that’s one impact we can make immediately to help mitigate our human contribution to climate change.”

    Part of Cox’s solution: more logging.

    “Logging is a good thing,” he told the online news organization CalMatters. “The idea that we’re hindering logging — when it’s a wonderful business, by the way — and can contribute to economic growth and jobs and reducing the wage gap and inequality gap, I think that would be a wonderful thing.”

    • #8
    • November 20, 2018, at 9:58 AM PDT
    • Like
  9. Anamcara Inactive

    I say kudos to President Trump for immediately ignoring the politically correct and voicing the necessity for effective forest management. He was vilified for it, but that doesn’t stop him.

    • #9
    • November 20, 2018, at 10:06 AM PDT
    • 3 likes
  10. Quietpi Member

    Ontheleftcoast (View Comment):
    In addition to improving how the state clears dead trees and vegetation, he is proposing a combination of technological solutions. Newsom’s tech wish list includes installing an early-warning infrared camera network that would spot wildfires and alert public safety officials. And he wants to use artificial-intelligence technology to predict and contain wildfires.

    And in one paragraph Newsom proves that he doesn’t know the difference between a doug fir and a ceanothus. And these are the people, along with their similarly educated judges, who are managing (not) our forests. And they’re not interested in hearing from people who actually know what they’re talking about.

    • #10
    • November 20, 2018, at 11:51 AM PDT
    • 2 likes
  11. Locke On Member

    I spent 30 years in the SF Bay Area, and during most of that period volunteered in the state and local parks, laying out, building and maintaining trails, mostly in the South Bay. That gave me a good look at park budgeting, staffing, maintenance and environmental policies over three decades. By the end of that time, I and fellow volunteers knew more about what was on the ground in the parks, and their history, than the paid staff.

    The OP is correct as far as it goes, re the Fed’s gifts to obstructionism. I misses one factor unique to California, the CEQA (Cal Environmental Quality Act) bureaucracy. Doing anything that would invoke CEQA radically increased the time to start a project, the amount of staff time devoted to getting it going and supervising it, and ultimately the cost. The parks did not get a break from this, if anything they were watched more closely by both the state bureaucracy and the enviros. One result is that we spent a good deal of field time, plus archive research digging through historical maps and aerials, trying to find ‘prior use’ in a area where improvement was desired, since that would obviate the CEQA review – century old logging roads can come in handy! The parks also missed significant grant and other funding opportunities, since getting dragged into the CEQA process would often extend the timeline beyond when funding would be available.

    How does that relate to fire hazard? If the above is the ante for building a trail, imagine what would be required to do something like tree or scrub thinning. The result was it pretty much never happened, the only dead timber clearance I ever saw by the parks was when a trail was actually blocked. The only significant clearance I saw in 30 years was under PG&E high tension lines, and that after they had established a record of burning down forests due to malfunctions.

    The bottom line is that most of the timber or chaparral covered parks in the Bay Area are loaded with fuel. The trees killed by Sudden Oak Death in the last decade are still standing or fallen and ready to burn. If it wasn’t for the fact that much of the forests are redwood, which is fairly fireproof naturally, there’d likely have been big issues by now. So lots of the pricey fringes of Silicon Valley – Woodside, Portola Valley, Los Altos Hills, and the like – are nestled right amongst public lands that are just loaded with fuel, waiting for the right combination of drought and weather and a spark. Someday you will be reading about ‘Silicon Valley on fire’.

    • #11
    • November 20, 2018, at 3:34 PM PDT
    • 4 likes
  12. Pete EE Member

    Getting back to the Camp Fire, specifically. The proximal cause was a sparking transformer.

    Is this related to some VDH-style story of illegal immigrants playing home-brew electrician on the power lines?

    Is this related to California running a huge state on a large and expanding alternative energy mix when the infrastructure is built for a smaller state using conventional electrical generation? Hmm. Maybe this all had something to do with global warming after all.

     

    • #12
    • November 30, 2018, at 12:36 PM PDT
    • Like