Miller & Telesetsky on Prescribed Fire Liability and Administration in Western States

Stephen R. Miller & Anastasia Telesetsky have posted to SSRN Prescribed Fire Liability and Administration in Western States:  An Empirical Analysis and Call for Reform.  The abstract provides:

Wildfires have grown exponentially over the last few years due to fuel loads, range- and timber-management policies, and climate change. The cost of fire suppression is also growing in both rural and urban areas. For instance, the 2023 Pioneer Fire in rural Idaho cost over $100 million to fight, while the 2025 urban conflagrations in Los Angeles, California destroyed over 30,000 structures despite an astonishing array of suppression resources deployed. Something new, and something big, in terms of law and policy interventions is needed to stem the intensity of wildfires. Increasingly, governments, private citizens, and even corporate interests like insurance industries, are looking to prescribed fire as a potential landscape-scale solution. Prescribed fires provide the kinds of fire that fire-adapted landscapes need to flourish while wildfires can burn too intensely, scar the landscape, and provide an entry for invasive species. Prescribed fire lessens the intensity and prevalence of wildfires, as well, which makes them more manageable. It also has the potential to reduce risk for homeowners and, as a result, place less strain on for-profit insurers and governmental insurers of last resort. The problem, however, is that a complex set of laws and antiquated liability standards make the broad deployment of prescribed fire challenging. This Article succinctly summarizes the major benefits of prescribed fire as well as the major legal problems that prohibit its broader deployment. The Article  presents results from a first-of-its-kind empirical survey of 11 western states’ laws, administrative regulations, and case law governing prescribed fire. The Article provides detailed summaries of how each state complies with requirements of the Clean Air Act and environmental review. The Article also articulates how each state uses some combination of  common law liability standards for negligence,  nuisance and trespass claims to address liability in the prescribed fire context. The Article also evaluates how states’ administrative processes try to encourage, or discourage, prescribed fire through a mix of certified burner programs, indemnity funds, and burn facilitation. The Article concludes by offering options for legal reforms that could lead to the safe deployment of prescribed fire as a bulwark to prevent future  out of control wildfires and the suppression costs that otherwise follow.