Background

Enactment of the Clean Air Act (CAA), Endangered Species Act (ESA), and National Environmental Policy Act (NEPA), three of the primary federal environmental laws, all coincided with the height of fire suppression and exclusion in the United States. These laws fail to acknowledge or account for the importance of fire in many fire-adapted and fire-dependent ecosystems, particularly in the American west, or the imperative for fire restoration to improve resiliency and reduce wildfire risk as identified by western science and Indigenous knowledge. We review the statutory and regulatory provisions of these federal laws to identify how the existing policy framework misaligns with the unique role of fire in ecosystems and with Tribal sovereignty, identify specific barriers and disincentives to beneficial fire use, and propose specific policy reforms.

Results

The CAA, the ESA, and NEPA inhibit the use of beneficial fire as they are founded in a policy framework that treats fire restoration and maintenance as a federal action or human activity, rather than as a natural, baseline, or keystone process. The emergency exceptions in these policies reduce accountability and incentivize the wrong kind of fire, and compliance creates a perverse outcome by disincentivizing fire restoration. Further, these federal policies impede Tribal sovereignty.

Conclusions

Modifications to these laws would better enable fire restoration in fire-dependent and fire-adapted ecosystems, reduce wildfire risk, and ultimately meet the statutes’ core purposes. Federal agencies and Congress should reform regulatory frameworks to explicitly recognize fire as a baseline, natural, or keystone process, such that restoring fire in fire-dependent and fire-adapted ecosystems at levels not significantly exceeding pre-1800 fire return intervals is not treated as a federal or agency action. Further, non-Tribal governments should not attempt to regulate cultural burning, as it is a retained right of Indigenous peoples.