War against wildfires a new priority for House Armed Services Committee?

On November 23, 2018, the U.S. Global Change Research Program released the congressionally mandated Fourth National Climate Assessment. The scientific report, which is the product of 13 federal agencies, makes clear that the evidence of human-caused climate change is overwhelming, that the impacts are intensifying across the country, and that climate-related threats to Americans’ physical, social, and economic well-being are increasing. 

The extraordinarily destructive wildfires that have already charred the Western United States in 2018 bear out the report’s conclusion. As of this writing, the Camp Fire in Northern California, the deadliest wildfire in California’s known history, has killed at least 85 people, left 200 people missing, and destroyed more than 18,000 structures. By comparison, this fire has killed more Californians than has any earthquake since 1933.{mosads}

And the Camp Fire is just one of several major wildfires that have this year scorched the western United States. From January 1 through November 25 this year, 6,154 wildfires have destroyed 876,167 acres of California land. The devastation is not limited to California.  Across the country, about 8.5 million acres, an area larger than Maryland, have burned. 

Human activity — from starting fires, to living close to wilderness, to forest management practices,  to climate change that leads to rising average temperatures and drier forests — contributes to increased wildfire risk and to more fires that burn hotter and longer. 

The threat wildfires pose to the health and safety of the country is not a concern only of the US Forest Service and the Congress’s environmental committees. When the 116^th Congress convenes in January 2019, expect legislative activity aimed at mitigating the dangers of wildfires from an unexpected place: the House Armed Services Committee (“HASC”) under the probable chairmanship of Rep. Adam Smith (D-Wash.).  

Wildfires affect the armed services in a number of ways, ranging from curtailing the number of training days due to fire activity, to diverting military assets and personnel to assist in response efforts.  In the past year, defense legislation has already moved decisively toward addressing wildfires. Notably, the National Defense Authorization Act for Fiscal Year 2019 (“NDAA”) — the massive, nearly $800 billion defense policy bill enacted in August 2018 — already took several important steps both to study wildfires and transfer military assets to support fire suppression.

First, the NDAA expresses the sense of Congress that “wildfires endanger national security.”  It directs the Secretary of Defense to submit to Congress within three months of enactment “a report on the wildfire suppression capabilities within the active and reserve components of the Armed Forces, including the Modular Airborne Fire Fighting System Program, and interagency cooperation with the Forest Service and the Department of the Interior.”    

Second, to help battle California’s furious wildfires, the NDAA authorizes the transfer of seven HC-130H aircraft from the Coast Guard to the state of California to be converted to firefighting air tankers. Once modified, the air tankers will be capable of dropping at least 3,000 gallons of fire retardant on fires. 

The transfer was originally part of 2013 legislation, and the 2019 NDAA increases the authorization for the program from $130 million to $150 million. The 2013, legislation had directed that the seven aircraft be modified into air tankers and transferred to the U.S. Forest Service, but the NDAA law directs that they be transferred directly to California, instead. 

A bipartisan group of California’s congressional delegation wrote to Secretary of Defense James Mattis and Secretary of the Air Force Heather Wilson in August 2018 to urge the Department of Defense (“DOD”) “to comply with the law as expeditiously as possible,” and asked that the DOD provide Congress “with regular updates as the planes are being modified and transferred to the State of California.”  They added: “These firefighting aircraft are absolutely vital to California’s efforts to combat the increasingly deadly wildfires that threaten our constituents.”{mossecondads}

Looking to the coming year and the next defense authorization bill, expect the HASC to continue these efforts to address wildfires through a whole-of-government approach, regardless of the politics surrounding climate change. The DOD’s report on the military’s wildfire suppression capabilities has already been submitted to Congress, and its findings will likely drive further Congressionally authorized transfers of equipment from the military to States or to the U.S. Forest Service to battle wildfires. One can also expect the next NDAA to include policy directives and funding authorizations to protect military installations from the threats of fire. And Congress may direct further studies to guide future legislative action.

In short, if a year-round fire season is the new normal, defense legislation that seeks to combat it will be, too.

Rachel Jacobson, former Department of Defense Deputy General Counsel for Environment, Energy and Installations, is a special counsel at WilmerHale. Matthew F. Ferraro is a senior associate at WilmerHale. Their thorough analysis of the 2019 NDAA, “Economic Deconfliction 2019” is forthcoming in the journal Environmental Law Reporter.