The following Policy Brief is by ConservAmerica Fellow Dan Mahoney:
As wildfire seasons grow longer and more destructive, the need for effective forest management has never been more urgent. Unfortunately, the very systems meant to safeguard these lands often impede the work necessary to steward them. If we want healthier forests and safer communities, we need to rethink the way forest policy is designed—encouraging collaboration over litigation and empowering people on the ground to act swiftly and responsibly to mitigate wildfire risk. The Senate’s recently introduced Fix Our Forests Act (FOFA) is not a perfect bill (nothing is), but it takes an important step toward changing our outdated management approach, and should be embraced as a rare bipartisan win for conservation.
Fixing the Rules That Slow Down Restoration
One of the biggest roadblocks to proactive forest management is the regulatory burden placed on restoration efforts. The principal offender has become the National Environmental Policy Act (NEPA), a well-intended Nixon-era statute designed to ensure due diligence for any project that could harm the environment. While some level of review is important, NEPA is often used by litigants as a roadblock to stop all management projects, regardless of their merit, making it impossible to take action. A recent study found that, for projects requiring a full Environmental Impact Statement (EIS), reviews took an average of 5.3 years for mechanical thinning and 7.2 years for prescribed burns. In the absence of these projects, some “protected” forests – and the economies and ecosystems reliant on them – have burnt to a crisp while awaiting judicial review, either from NEPA litigation or delayed EIS findings. This does the endangered species that live there few favors, and the world’s climate goals no better.
In the absence of congressional action on permitting reform, the Supreme Court recently narrowed NEPA’s scope in a unanimous decision, ruling that courts must defer to agency determinations under NEPA and are not obligated to conduct analysis of unrelated projects with indirect effects on the environment. As Justice Kavanaugh explained in the Court’s written decision, “NEPA has transformed from a modest procedural requirement into a blunt and haphazard tool employed by project opponents … to try to stop or at least slow down new infrastructure.”
This holding should also help expand the thoughtful use of categorical exclusions (fast-tracked reviews for low impact projects) for wildfire resilience projects like mechanical thinning and prescribed burns. Though there may be an increase in efforts to take advantage of this to promote clear-cutting under the logic that a forest that is no longer there can’t burn, this would not be a good-faith interpretation of the term “forest management,” which FOFA anticipates and attempts to establish guardrails for.
FOFA will increase the acreage limits for these exclusions, allowing for more widespread adoption and some much-needed regulatory relief. With greater clarity around how and where these exceptions can be applied, states, tribes, the Forest Service, and willing conservation partners can collaborate more confidently on necessary projects.
A Smarter Approach to Species Protection
In addition to NEPA, another barrier to forest management has been the Endangered Species Act’s interpretation under the Ninth Circuit’s 2015 Cottonwood decision. Due to the ruling in this case, the Forest Service can be required to re-consult management plans that don’t materially affect protected species like Canadian lynx. Increasing lynx populations and improving their habitat is a worthy goal, but they are not benefiting from this new status quo. As more of that forest habitat burns while the agency of jurisdiction is paralyzed by litigation and sisyphean analysis burdens, the species suffers alongside the forests.
A wiser approach would be to apply the Tenth Circuit’s interpretation, which limits consultations to projects with direct impacts on species. This wouldn’t reduce protections but would allow planning and restoration to proceed more smoothly, with full review still required for specific, ground-level actions. Interpreting the ESA a bit more narrowly would also expose forest projects to less litigation, which has historically been an enormous obstacle to management activities. Defending agency decisions costs a lot of time and money, and detracts from the agency’s ability to focus resources on actual conservation work. When the Forest Service goes years without being able to implement thoughtful management plans, communities are exposed to greater risks of dangerous wildfires, and critical habitat is needlessly jeopardized. More active management can make us safer and promote long term forest health, but that management must include the use of controlled burns, and stronger protections for doing so should be added to FOFA.
Embrace Fire as a Management Tool
Prescribed burns are a proven method of reducing wildfire risk, and one that was used by indigenous people in North America for thousands of years to manage forests and grasslands. However, following the creation of the Forest Service in 1905, the US government instead began trying to prevent and extinguish every natural fire on its lands, and this misguided policy has caused a century-long buildup of fuels in our forests. Even now, states and agencies are disincentivized from using controlled burns, because the smoke that results is counted against state emissions limits. This backward reasoning prevents preemptive care and allows for much larger fires to emit far greater amounts of CO2. In 2023 alone, for example, wildfires in Canada released more carbon than any industrialized nation except China, India, and the US.
By excluding prescribed burn emissions from state totals—or better yet, crediting them for avoiding worse outcomes—we can encourage the use of fire as a tool to protect both forests and public health. This shift should also be accompanied by increased public education about the value of prescribed burns, so that the practice can be destigmatized.
Strengthen Partnerships That Work
The Forest Service can’t tackle this challenge alone. Long-term stewardship contracts and public-private partnerships are essential, but existing rules limit these collaborations. Extending contract durations and giving the Forest Service more flexibility would help partners make the long-term investments needed for real change. Programs like Good Neighbor Authority (GNA) do just that and are already proving effective, but they should be expanded to let funding flow across jurisdictions and treat tribes and counties as equal partners—not second-class participants.
America’s forests are in crisis, but the solutions are within reach. By streamlining regulations, encouraging partnerships, and cutting red tape to allow for common-sense management, we can move from a system of conflict to one of cooperation. It’s time to empower the people and tools already working to restore our forests—and ensure our future generations inherit landscapes that are as beautiful as they are resilient.
This will require the good-faith passage of bills like the Senate’s bipartisan Fix Our Forests Act, reasonable interpretations, or better yet, legislative reform, of NEPA that don’t mandate near-decadal (or 11 day) reviews, and a willingness to empower extragovernmental partnerships.
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1. The Senate’s version differs in a few ways from the version passed by the House earlier this year.