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Environmental & Energy

Sep. 7, 2023

Save the trees or harm the forest?

“The Save Our Sequoias Act suggests creating a Coalition of federal, state, and local entities to protect sequoia groves from threats like disturbances and wildfires. Opponents fear the bill could weaken environmental laws, setting a concerning precedent for the nation.”

Christopher Rheinheimer

Special Counsel, WilmerHale LLP

Tessa Opalach

Associate, WilmerHale LLP

Giant sequoias grow indigenously on the western slopes of California’s Sierra Nevada. These trees are historically known to be resilient to wildfire, but as weather events have become more extreme, the localized populations of giant sequoias have dwindled. Some experts estimate that California has lost twenty percent of the giant sequoia population to recent wildfires. And as fires become more intense with climate change, they pose mounting threats to natural resources, livelihoods, and communities.

Against this backdrop, lawmakers from both sides of the aisle have demonstrated support for legislation aimed at protecting these ancient trees. The newest proposed legislation is the Save Our Sequoias Act (H.R. 2989). The act contains a number of broadly popular and widely supported provisions.

For example, the proposed Save Our Sequoias Act calls for a shared stewardship agreement and establishment of a Coalition to conduct protection projects and implement a strategy for reforestation and rehabilitation. The Coalition would be comprised of several federal, state, and local entities including the National Park Service, Bureau of Land Management, the Tule River Indian Tribe, the University of California, Berkeley, and the County of Tulare, among others. That body would be tasked with assessing whether groves have experienced a stand-replacing disturbance or are at risk of experiencing high-severity wildfires, and those that are unlikely to naturally regenerate and require reforestation. The assessment would also analyze the resiliency of each grove to threats including high-severity wildfire, insects, and drought. Based on these findings, responsible officials would conduct protection projects, including hazardous fuels management, mechanical thinning, mastication, prescribed burning, removing hazard trees, removing dying trees, and using chemical treatments to control vegetation competition. Finally, the proposed bill includes various financial components, including the appropriation of more than $200 million over the next six years.

However, the broad popularity is tested by the emergency response provision in Section 6. This section allows officials to implement giant sequoia protection projects on all public and covered National Forest System lands without initiating analysis under section 102 of the National Environmental Policy Act (NEPA), consultation under section 7 of the Endangered Species Act (ESA), or consultation under section 106 of the National Historic Preservation Act. Here, those protection projects would include forest thinning, prescribed burns, deadwood removal, and other similar types of projects.

Under existing law, NEPA, the ESA, and other environmental regulations operate in tandem with the National Forest Management Act (NFMA) to ensure that, prior to undertaking forest health projects that could negatively impact the environment or endangered species, reasonable alternatives are evaluated before taking action. Pursuant to the NFMA, the Forest Service prepares land and resource management plans, which must be developed in accordance with NEPA and other environmental statutes. The Save Our Sequoias Act would allow the Forest Service to engage in emergency responses aimed at protecting giant sequoias without first obtaining NEPA and ESA evaluations. Groups including the Sierra Club and others argue that streamlining permitting to avoid compliance with NEPA and the ESA will cause avoidable harm to the forests and other ecosystems and wildlife.

Last year when the bill was introduced, a group of more than 80 entities wrote to Congress urging opposition to the proposed legislation. That group, comprised of the League of Conservation Voters, Earthjustice, Defenders of Wildlife, Sierra Club, Natural Resources Defense Council and others, argues the bill “would weaken existing environmental law to expedite potentially harmful logging projects that undermine the ecological integrity of sequoia groves and will do nothing to protect these trees.” The letter claims that the bill would “lead to rushed and poorly planned logging projects with major impacts on soil, streams, and wildlife that could result in increased wildfire risk and harm recreational opportunities and other uses.”

But Speaker of the House Kevin McCarthy and other proponents describe the bill as providing “commonsense solutions to fix our broken forest management system.” They argue the emergency response provisions are necessary to combat past fire suppression and mismanagement that has resulted in hazardous fuels accumulating in giant sequoia groves and igniting as tinder for hotter fires.

Proponents of the bill further contend that similar legislation has decreased fire risk and devastation from wildfires. For example, Congressman Tom McClintock points to a provision of the Water Infrastructure Improvements for the Nation Act passed in 2016. Under that law, forest thinning projects up to 10,000 acres in the Tahoe Basin are categorically excluded from the NEPA process. Congressman McClintock claims that the removal of excess timber has increased substantially and delivered results. Due to these claimed successes, Congressman McClintock also supports the Proven Forest Management Act, which passed the House Natural Resources Committee in June 2023. That bill expands the categorical exclusion for forest management projects currently applicable to the Tahoe Basin throughout the National Forest System.

However, this example appears to be exactly the type of slippery slope the opposition to the proposed legislation fear most. For example, Earthjustice wrote that “[d]espite its local focus, the bill would set a precedent for further weakening of environmental laws that could have far-reaching repercussions nationwide. It’s nothing more than a trojan horse to diminish important environmental reviews and cut science and communities out of the decision-making process.”

At the end of the day, both the proponents and opponents of the bill generally agree that giant sequoias need additional protection from the increasing threat of devastating forest fires. The question is whether, as the environmental groups opposing the legislation believe, this particular solution would save the trees only by enabling further harm to the forest.


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