Court Finds Forest Service Does Not Need To Conduct Environmental Review Before Constructing Firebreak For Existing Wildfire

A court rejected the claim by a plaintiff that the Forest Service has to first prepare an environmental analysis of the impacts of a firebreak to stop an existing wildfire before it can construct the firebreak.  In an effort to stop a large wildfire on the Okanogan-Wenatchee National Forest, the Forest Service created a “community protection line” (CPL) which consisted of a 300 foot wide area of thinned vegetation approximately 20 miles long which would serve as a fire break.  The CPL was used because the fire had previously jumped two containment lines and was quickly growing.

After the CPL was constructed, the plaintiff filed a lawsuit alleging that the Forest Service should have completed an environmental analysis under the National Environmental Policy Act (NEPA) before constructing the fire break.  The plaintiff argued that NEPA does not have an explicit waiver for emergency actions.  While the statute does allow the agency to use alternative arrangements when necessary, plaintiff argued that the agency did not follow the procedure for this option even if it applied.

As the court noted, NEPA requires environmental analyses “to the fullest extent possible,” which shows they are not mandated in every situation.  The court therefore concluded that, as a matter of common sense, NEPA “allows an agency to make alternative arrangements in emergency situations without complying with the ordinary, burdensome reporting requirements.”   While the plaintiff insisted that wildfires were not emergencies, the court found that assertion to be “contrary to common sense.”  The court also concluded that the agency properly followed its procedure for circumventing NEPA in emergency situations.