Judge Orders Firefighting Activities to Comply with NEPA, ESA Dave

On October 24th, Montana Federal District Court Judge Don Molloy ruled that the U.S. Forest Service violated the Endangered Species Act (ESA) and the National Environmental Policy Act (NEPA), when it failed to go through appropriate public process to consider the dangers of the millions of gallons of fire retardant the agency uses annually. For details see FOREST SERVICE EMPLOYEES FOR ENVIRONMENTAL ETHICS v. UNITED STATES FOREST SERVICE [pdf]

For many years the Forest Service has argued that fire fighting is an emergency, that there is no time to do formal environmental compliance for NEPA, and formal consultation for ESA. Judge Molloy's decision countermands this reasoning, saying in part,

…emergency consultation [under the ESA] is intended to be the exception, not the rule. The emergency exception is meant for unexpected exigencies. The use of fire retardant by the USFS is not unexpected but guaranteed; the only question is when and where it will be used. There is no reason why the USFS cannot conduct formal consultations with the FWS and no reason to find that the ESA requires anything less. The remedy here is an order to the USFS to engage in formal consultation with the FWS [US Fish and Wildlife Service] regarding the use of fire retardant in national forests.

Molloy's reasoning on the NEPA compliance issue is similar, saying in part,

… The present case is unlike timber sales, forest plan revisions or most other agency actions that prompt suits seeking to compel NEPA compliance. In most situations time is not of the essence and the law generally requires a site specific plan before NEPA compliance is required. … Here it is impossible to do an EIS between the time that the person in charge of a particular fire-fighting operation orders the use of chemical fire retardant and the actual use of the retardant. If Defendant is correct, the application of fire retardant to national forests, which likely has significant effects on the environment, is completely insulated from NEPA because the decision to apply retardant does not occur until the aircraft is dispatched to a particular forest on a particular piece of land. Such a reading does not comport with the goals of NEPA and would allow federal agencies to evade NEPA by allowing final decision to be made "on the ground" by local officials.

Since the lawsuit was narrowly framed, we are left to ponder what other firefighting activities may be considered similar with regard to legal compliance. What about cutting fire line? What about base camp setup, operation, and cleanup/restoration? And so on. What about decisions as to when and where, and under what circumstances generally, to allow fires to burn instead of suppressing them? Judge Molloy's decision may once-again open up discussion as to when, where and how programmatic NEPA compliance makes sense.