We’re Falling into a Ring of Fire: Taking Stock of Wildfire Liability Regimes from Varying Perspectives in the United States
March 31, 2021 by Drew Robertson
By Alec Williams, Managing Editor
After a record-breaking wildfire season in 2020, lawsuits are likely to flood the dockets of federal and state courts across the United States. Wildfire liability determinations at either level can be complex, typically implicating many parties and exorbitant damage awards. However, in light of the projected impact of climate change on wildfire frequency and severity, such lawsuits may become increasingly commonplace.
I. Introduction: Links Between Climate Change and Wildfire
Anthropogenic climate change is projected to result in myriad adverse impacts on global health and welfare: the rise of sea levels in coastal communities; a pervasive threat of food shortages; rampant decreases in air quality. Moreover, the most vulnerable, marginalized groups are categorically more likely to contend with the immediate ills of climate change.
Extreme weather events are amongst the most vivid manifestations of climate change. Contemporary science indicates that the rise in annual global temperature—driven by climate change and periodic decimation and mismanagement of endemic ecosystems—is strongly correlated to the elevated effects, severity, and frequency of natural disasters.
In 2020, perhaps the most visible natural disasters were the wildfires that plagued much of the Western United States. High wind conditions and on-going droughts linked to climate change—coupled with poor resource management and human negligence—resulted in record-breaking burns. Damages resulting from such wildfires are expansive, and people in and around affected communities are susceptible to immediate and long-term impacts of the burn.
The interplay of these factors is complicated, but contending with their effects has become an important legal issue in light of projected increases in such disasters. Ultimately, wildfires have a demonstrable impact on the lives of thousands of people and our planet’s future. Understanding the frameworks these communities have for redress is of utmost importance in ensuring the scope of such disasters is curtailed and effectively mitigated.
II. Background: Important Elements of the Wildfire Problem
For biomes across the United States, wildfires are an important means of recycling nutrients and maintaining ecosystem health. However, climate change has severely disrupted this process. For instance, growing amalgamations of dry underbrush on private and public lands elevates the likelihood of widespread and unpredictable burns. Additionally, increases in drought have made it difficult for native flora and fauna to regenerate after wildfires. Finally, a substantial majority of burns are caused by human behavior as opposed to lightning or other natural means. 
Importantly, wildfires pose short and long-term consequences for humans. The immediate impacts include threats to health and welfare, real property and chattel damage, loss of food security, or contamination of drinking-water sources. Additionally, smoke exposure and resultant pollution can have ongoing effects on quality of life, livelihood, and local economic activity. Moreover, wildfires can also act as catalysts for subsequent natural disasters like mudslides.
In light of the relationship affected communities have with the onset, impact, and control of wildfires, an overview of the relevant legal mechanisms at their disposal is prudent in ensuring social stability given the predicted impacts of climate change on natural disasters.
III. Federal Framework: Private Actors Against the Government
Injured private parties have limited mechanisms for relief against the federal government for wildfire damages; most remedial structures are provided by state and local common law. The scope of the federal framework is generally cabined to claims under the Federal Tort Claims Act and the Fifth Amendment. At the outset, the government cannot typically be held liable for unintentionally caused wildfires if it acts in accordance with its own policies and guidance documents. Only in select—albeit expanding—circumstances can private citizens attain relief for wildfire damages against the federal government.
A. Federal Tort Claims Act
Private citizens may sue the federal government under the Federal Tort Claims Act (the “Act”) for wildfire damages. Broadly, the Act creates a cause of action by which injured private citizens can sue the federal government for torts committed by its employees in the scope of their employment. While the Act constrains the scope of liability, it does not provide the federal government with unfettered protection; employee conduct that falls within the “discretionary function” exception shields the federal government from liability. However, Congress provides no substantive definition of what constitutes “discretionary function” in the statute nor the legislative history.
Therefore, interpreting the plain meaning of the text in conjunction with principles of administrative law, the federal government is vested with substantial immunity when private citizens allege tortious conduct against an employee under the Act. As long as the employee’s action results from a permissible exercise of policy judgment, the federal government is shielded from tort liability under the Act. The “discretionary function” exception effectively protects the government from liability when it has permissibly exercised policy judgment vis-a-vis “legislative and administrative decisions grounded in social, economic, and political policy.”
Claims brought under the Act may arise in response to wildfires that result when prescribed burns on public lands go awry. Occasionally, burns will behave unpredictably and inflict damage on adjacent private-owned lands. Injured parties may sue the government for tort liability under the Act. For evaluation of the government’s often-asserted defense of “discretionary function,” federal courts apply the two-tiered analysis described in Berkovitz v. United States. Applying Berkovitz to instances of prescribed burns, courts first consider whether the burn was conducted pursuant to a government statute, regulation, or unwritten policy. If so, the court then considers whether the federal employee orchestrating the burn had any discretionary choices in accomplishing the burn. If the federal government affirmatively satisfies both criteria, it is insulated from tort liability.
There are a few important caveats. First, to shield itself from liability, the federal government must raise the “discretionary function” exception; if it fails to do so, private citizens may proceed against the government under the Act. While past courts have held that the government may be insulated from liability for out-of-control prescribed burns, if a plaintiff can show the government’s plan for the controlled burn was poorly constructed or executed, they may be able to defeat the “discretionary function” exception. It bears repeating that there typically exists an implicit element of intentionality in these cases, indicating naturally-occurring wildfires likely do not carry the same opportunity for redress under the Act.
However, novel jurisprudence under the Act may soon emerge in the Eastern District of Tennessee in response to a human-caused, non-prescribed burn that caused rampant loss of life and private property damage near Great Smoky Mountain National Park. The challenge primarily hinges on the National Park Service employees’ negligence in failing to follow planning documents and alert adjacent communities of the burn’s potentially destructive nature. Despite subsequent assertions of the “discretionary function” exception under the Act, the district court held that the exception was not applicable and allowed the lawsuit against the government to proceed. Hence, injured private parties may have opportunities for redress from accidental fires started on public lands when the government fails to properly alert surrounding communities.
B. The Fifth Amendment and Eminent Domain
The Constitution prevents the federal government from acquiring private property without providing the owner with just compensation. With respect to real property, Takings Clause and eminent domain jurisprudence delineate the concept of a regulatory taking, whereby the government imposes regulations that do not physically deprive an owner of their property, but functionally seize the property without just compensation. Within this regulatory taking framework, private landowners have sought redress—albeit to no substantial avail—against the federal government for wildfire damages originating on public lands. However, that very well could change.
A federal court recently held that flooding could constitute a regulatory taking where the government “created reservoirs and dams that it knew, or should have known, would overflow onto neighboring property and did nothing to stop that from happening.” Though the government is not typically liable for a failure to act, it seems the In re Upstream court created that possibility in a scenario linked to climate change. The plaintiffs in that case—landowners who argued the government had insufficient management plans for addressing a foreseeable harm (i.e. a severe storm causing a reservoir to overflow, flooding private-owned lands)—successfully pleaded the government committed a regulatory taking by easement for its mishandling of the situation.
Flooding proximately caused by increasingly frequent severe weather events like hurricanes arguably share a nexus with increased likelihood of megafires: climate change. While distinct natural disasters, the scenarios appear potentially analogous. Even though federal courts have been apprehensive about extending Takings Clause violations to damages caused by wildfires originating on public land, In re Upstream could render the government liable for non-compensated regulatory takings in light of climate change-based, anticipatable risks resource mismanagement poses to private landowners.
IV. Federal and State Actions: The Government Against Private Actors
The government has a vested interest in preserving public lands and environmental quality. Therefore, the government, at both state and federal levels, maintains a civil and criminal framework for holding private actors liable for wildfires. Many federal lawsuits the Department of Justice initiates concern varying degrees of negligence torts against utility companies and other industrial organizations. For instance, in United States v. Sierra Pacific Industries, the government settled for nearly 50 million dollars in damages resulting from a wildfire caused by a utility company’s negligence.
In light of the augmented risks climate change creates for wildfire severity and frequency, the government has aggressively pursued more stringent litigation efforts against private actors. Part of this approach may include increased valuations of ecosystem services and environmental sustainability in damage calculations. The government may also now seek compensation for loss of future access to pristine, forested public lands. While this novel approach markedly disincentivizes negligent behavior, it must be cogently balanced with the accidents that occur from calculated, intentional burning efforts on private lands. Many ecosystems rely on wildfire to regenerate; overburdening private parties with damage awards more than five times the market value of their property can disfavor procedures maintaining ecosystem health and sustainability.
Many state and local governments have developed similar frameworks for holding private actors—typically utility companies—accountable for wildfires damages. Aging infrastructure, accompanied by the heightened probability of wildfires, have made utility companies targets for enormous lawsuits implicating a slew of claims. For instance, given California’s unique history with wildfires, it maintains a strict liability provision for property damages in the state constitution. Additionally, though western states have dramatically increased their liability regimes for wildfire damages, California’s decision to allow inverse condemnation suits against utility companies for wildfires dramatically incentivizes safer procedures, and may serve as an effective model for mitigating ongoing wildfire risks.
V. Wildfire Fighter Liability
The government occasionally seeks criminal liability for mistakes wildfire fighters make in the course of combatting a burn. Following the deaths of four firefighters in the Thirty-Mile Fire, Congress enacted Public Law 107-203 in 2001. Commanders and decisionmakers pled guilty to mistakes in the line of duty that proximately resulted in the deaths. However, such lawsuits have been periodically phased out for concerns about the impact it may have on wildfire fighters’ ability to exercise prudent judgment in stressful situations. Importantly, the only wildfire fighters subject to this regulation are those employed by the government. These regulations do not apply to private firefighters groups hired by insurance companies to protect high-value properties. Liability regimes for such groups—at least in California where they have recently surged in popularity—are still developing.
As this year’s wildfire season draws to a close, states like Colorado and California have faced some the most severe burns to date. The scientific community predicts that similar wildfires and other severe weather events are likely to become increasingly regular and an ever-present reality in the United States. Appropriately implemented and executed liability regimes for wildfires can have an important role in incentivizing exercise of the utmost care and caution in mitigating the risk factors elevated by climate change. With the anticipated proliferation of extreme weather events, the law will undoubtedly need to evolve to ensure protection and prioritization of human health and welfare in the United States.
 Kristie L. Ebi et al., Climate Change and Human Health Impacts in the United States: An Update on the Results of the U.S. National Assessment, Env’t Health Persps., 1320–22 (Sept. 2006), https://ehp.niehs.nih.gov/doi/pdf/10.1289/ehp.8880.
 Rebecca Lindsey, Climate Change: Global Sea Level, Climate.gov (Aug. 14, 2020), https://www.climate.gov/news-features/understanding-climate/climate-change-global-sea-level.
 Intergovernmental Panel on Climate Change, Climate Change and Land: an IPCC Special Report on Climate Change, Desertification, Land Degradation, Sustainable Land Management, Food Security, and Greenhouse Gas Fluxes in Terrestrial Ecosystems, 439-40 (2019).
 Chaopeng Hong et al., Impacts of Climate Change on Future Air Quality and Human Health in China, 116 Proceedings of the national Academy of Sciences 17193, 17197 (2019), https://www.pnas.org/content/pnas/116/35/17193.full.pdf.
 Seth B. Shonkoff et al., The Climate Gap: Environmental Health and Equity Implications of Climate Change and Mitigation Policies in California—a Review of the Literature, 109 Climatic Change 485, 499 (2011), https://link.springer.com/article/10.1007/s10584-011-0310-7.
 Terry Dinan, Projected Increases in Hurricane Damage in the United States: The Role of Climate Change and Coastal Development, 138 Ecological Economics 186, 186 (2017), https://www.sciencedirect.com/science/article/abs/pii/S0921800916309752.
 Chelsea Harvey, Scientists Can Now Blame Individual Natural Disasters on Climate Change, Scientific American (Jan. 2, 2018), https://www.scientificamerican.com/article/scientists-can-now-blame-individual-natural-disasters-on-climate-change/.
 A. Park Williams et al., Observed Impacts of Anthropogenic Climate Change on Wildﬁre in California, 7 Earth’s Future 892, 904-06 (2019), https://agupubs.onlinelibrary.wiley.com/doi/epdf/10.1029/2019EF001210.
 Diana Leonard and Andrew Freedman, Western Wildfires: An ‘Unprecedented,’ Climate Change-Fueled Event, Experts Say, Wash. Post (Sep. 11, 2020, 1:22 PM), https://www.washingtonpost.com/weather/2020/09/11/western-wildfires-climate-change/; see also Anne C. Mulkern, Fast-Moving California Wildfires Boosted by Climate Change, Scientific American (Aug. 24, 2020), https://www.scientificamerican.com/article/fast-moving-california-wildfires-boosted-by-climate-change/.
 J.D. Morris, Is Climate Change Worsening California Fires, or Is It Poor Forest Management? Both, Experts Say, S.F. Chronicle (Sept. 14, 2020, 4:58 PM), https://www.sfchronicle.com/california-wildfires/article/Are-climate-change-or-poor-forest-management-15564031.php.
 Karen M. Bradshaw, A Modern Overview of Wildfire Law, 21 Fordham Env’t L. Rev. 445, 466-74 (2010) (discussing the breadth and variety of immediate and longer-term harms that result from wildfire damages).
 See generally Fay H. Johnston et al., Unprecedented Health Costs of Smoke-related PM2.5 from the 2019–20 Australian Megafires, Nature Sustainability (Sept. 21, 2020), https://www.nature.com/articles/s41893-020-00610-5.
 Claire Wolters, Here’s How Wildfires Get Started—and How to Stop Them, Nat’l Geographic (Dec. 5, 2019), https://www.nationalgeographic.com/environment/natural-disasters/wildfires/; see also Juli G. Pausas and Jon E. Keeley, Wildfires as an Ecosystem Service, 17 Frontiers in Ecology and the Environment 289, 290-93 (2019), https://esajournals.onlinelibrary.wiley.com/doi/full/10.1002/fee.2044.
 Lakshmi Supriya, Ecosystems Could Once Bounce Back from Wildfires. Now, They’re Being Wiped Out for Good, Science (Dec. 19, 2017, 12:50 PM), https://www.sciencemag.org/news/2017/12/ecosystems-could-once-bounce-back-wildfires-now-they-re-being-wiped-out-good.
 Wolters, supra note 13.
 Supriya, supra note 14.
 Jennifer K. Balch et al., Human-started Wildfires Expand the Fire Niche Across the United States, 114 Proceedings of the national Academy of Sciences 2946, 2948-50 (2017), https://www.pnas.org/content/pnas/114/11/2946.full.pdf.
 McKenna Princing, Wildfires Are the New PNW Summer Norm—and They’re Impacting Our Health, Univ. Wash. Med.: Right as Rain (Aug. 15, 2019), https://rightasrain.uwmedicine.org/well/health/wildfire-smoke-health-impact.
 Pollutants from Wildfires Affect Crop and Vegetation Growth Hundreds of Kilometers from Impact Zone, Science Daily (Dec. 21, 2018), https://www.sciencedaily.com/releases/2018/12/181221123706.htm; see also Paula Thomas, Australia’s Fire Crisis and Its Impact on Food, Slow Food (Jan. 10, 2020), https://www.slowfood.com/australias-fire-crisis/.
 Ed Struzik, How Wildfires Are Polluting Rivers and Threatening Water Supplies, Yale Env’t 360 (Oct. 2, 2018), https://e360.yale.edu/features/how-wildfires-are-polluting-rivers-and-threatening-water-supplies; see also Jeffrey H. Writer et al., Water Treatment Implications After the High Park Wildfire, Colorado, J. AWWA, Apr. 2014, at E189, https://awwa.onlinelibrary.wiley.com/doi/abs/10.5942/jawwa.2014.106.0055.
 Colleen Walsh, Australian Wildfires Will Claim Victims Even After They’re Out, The Harv. Gazette (Jan. 27, 2020), https://news.harvard.edu/gazette/story/2020/01/the-long-term-effects-of-wildfires/.
 Emily J. Davis et al., The Community Economic Impacts of Large Wildfires: A Case Study from Trinity County, California, 27 Society and Natural Resources 983, 8-10 (2014), https://pdxscholar.library.pdx.edu/cgi/viewcontent.cgi?article=1054&context=esm_fac.
 Ula Chrobak, California Wildfires May Give Way to Massive Mudslides, Popular Sci. (Sept. 17, 2020), https://www.popsci.com/story/environment/post-fire-mudslides-california/.
 Justin Pidot, Natural Baselines for Wildfire Takings Claims, 75 Md. L. Rev. 698, 700, 717 n.104 (2016) (describing the predominant modes of federal redress for wildfire damage).
 See Charles H. Oldham, Wildfire Liability and the Federal Government: A Double-Edged Sword, 48 Ariz. St. L.J. 205, 208 (2016); see, e.g., Miller v. United States, 163 F.3d 591, 592, 594-96 (9th Cir. 1998).
 See, e.g., Anderson v. United States, 55 F.3d 1379, 1381-84 (9th Cir. 1995) (describing a successful FTCA claim involving wildfire damages initiated by private parties against the government).
 Oldham, supra note 25 at 206-07 (providing an overview of mechanisms through which private citizens can sue the federal government for wildfire damages).
 Federal Tort Claims Act, 28 U.S.C. § 2680(a) (“[B]ased upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.”).
 Donald N. Zillman, Protecting Discretion: Judicial Interpretation of the Discretionary Function Exception to the Federal Tort Claims Act, 47 Me. L. Rev. 365, 366-67 (1995).
 See Federal Tort Claims Act, 28 U.S.C. § 2680(a); see also Oldham, supra note 27, at 208.
 U.S. v. Varig Airlines, 467 U.S. 797, 798 (1984).
 See, e.g., Anderson v. United States, 55 F.3d 1379, 1380 (9th Cir. 1995).
 Berkovitz v. United States, 486 U.S. 531, 536-37 (1988).
 Oldham, supra note 27, at 208.
 See Oldham, supra note 25, at 206-08; see, e.g., Anderson, 55 F.3d at 1380 (9th Cir. 1995).
 See, e.g., Thune v. United States, 872 F. Supp. 921, 924 (D. Wyo. 1995).
 See, e.g., Fla. Dep’t of Agric. & Consumer Servs. v. United States, No. 4:09-cv-386/RS-MD, 2010 WL 3469353, at *3-*4 (N.D. Fla. Aug. 30, 2010).
 Matt Lakin, Mountaintop Spark, Rising Wind Lit the Fuse for Gatlinburg Firestorm, Knox News (Nov. 22, 2017, 5:00 AM), https://www.knoxnews.com/story/news/2017/11/22/gatlinburg-wildfire-one-year-later-chimney-tops-trail/856267001/ (inciting cause of the wildfire was traced to matches).
 Melanie V. Russell, Insurance Companies Suing U.S. Government for 2016 Gatlinburg Wildfires Claims, WATE (Nov. 22, 2019, 4:27 PM), https://www.wate.com/news/insurance-companies-suing-u-s-government-for-2016-gatlinburg-wildfires-claims/.
 See, e.g., Reed v. United States, 426 F. Supp. 3d 498, 508-11 (E.D. Tenn. 2019).
 See also Vance v. United States, No. 3:19-CV-283, 2019 WL 7041500, at *3-*9 (E.D. Tenn. Dec. 20, 2019) (discussing unsuccessful attempts of the government moving to dismiss pursuant to application of the FTCA to the Chimney Tops 2 Fire). See generally Reed v. United States, 426 F. Supp. 3d 498, 504-10 (E.D. Tenn. 2019).
 U.S. Const. amend. V (description of the Takings Clause).
 See generally Lingle v. Chevron U.S.A. Inc., 544 U.S. 528 (2005) (describing the scope and purview of regulatory taking jurisprudence).
 Pidot, supra note 24, at 700.
 Joseph W. Singer, Regulatory Takings Claim Against United States for Reservoir Design that Foreseeably Flooded Upstream Properties After Tropical Storm Harvey, Harv. Univ. (Dec. 18, 2019), https://scholar.harvard.edu/jsinger/blog/regulatory-takings-claim-against-united-states-reservoir-design-foreseeably-flooded (discussing the holding of In re Upstream Addicks & Barker Flood-Control Reservoirs, 146 Fed. Cl. 219 (2019)).
 In re Upstream Addicks & Barker Flood-Control Reservoirs, 146 Fed. Cl. 219, 240-46 (2019) (discussing the history of the government’s project and how the anticipatable flooding was certainly foreseeable).
 Singer, supra note 46.
 See, e.g., TrinCo Inv. Co. v. United States, 722 F.3d 1375, 1377 (Fed. Cir. 2013).
 See Oldham, supra note 25, at 214-15; see also, Jonathan Yoder, U.S. Dep’t of Agric., Proceedings of the Second International Symposium on Fire Economics, Planning, and Policy: A Global View, 642 (2008), https://www.fs.fed.us/psw/publications/documents/psw_gtr208en/psw_gtr208en_639-650_yoder.pdf.
 Elias Kohn, Wildfire Litigation: Effects on Forest Management and Wildfire Emergency Response, 48 Env’t L. 585, 601-03, 603 n.123 (2018).
 See generally Oldham, supra note 25 at 215; see, e.g., United States v. Sierra Pac. Indus., 100 F. Supp. 3d 948, 953 (E.D. Cal. 2015) (setting a precedent for increased, aggressive damage determinations as a means to dissuade potentially dangerous conduct).
 Kohn, supra note 51, at 599-603.
 See generally Kate A. Brauman et al., The Nature and Value of Ecosystem Services: An Overview Highlighting Hydrologic Services, Ann. Rev. & Env’t Res., July 2007, at 67. http://www.biodiversity.ru/programs/ecoservices/library/functions/water/doc/Brauman_2007.pdf (overview of ecosystem services for the purposes of delineating how they may be valued).
 See, e.g., Comparative Valuation of Ecosystem Services: Lents Projects Case Study, David Evans & Assocs. 7-8 (June 2004), https://www.portlandoregon.gov/bes/article/386288 (the City of Portland commissioned a report that produced economic valuation of “ecosystem services”).
 See also United States v. CB & I Constructors, Inc., 685 F.3d 827, 837 (9th Cir. 2012) (demonstrating that intangible economic costs are now a consideration). See generally United States v. Union Pac. R.R. Co., 565 F. Supp. 2d 1136 (E.D. Cal. 2008).
 Kohn, supra note 51 at 600-01.
 Id. at 591.
 Joanna Szabo, California Wildfire Lawsuit: Who is Responsible?, Top Class Actions Helping Right Consumer Wrongs (Aug. 25, 2020), https://topclassactions.com/lawsuit-settlements/disaster-help/wildfire/california-wildfire-lawsuit-pge.
 See, e.g., Complaint at ?, Andrews v. PG&E Corp., No. 19-cv-00291 (Cal. Super. Ct. Butte Cnty. Jan. 25, 2019) (alleging negligence, trespass, nuisance, inverse condemnation, and violations of the California State Public Utility Code).
 See, e.g., Kendra Pierre-Louis and John Schwartz, Why Does California Have So Many Wildfires?, N.Y. Times (Oct. 27, 2020), https://www.nytimes.com/article/why-does-california-have-wildfires.html.
 Jeremy Gradwohl, Electric Utility-Caused Wildfire Damages: Strict Liability Under Article I, Section 19 of the California Constitution, 92 Temp. L. Rev. 595, 602-03 (2020) (discussing Cal. Const. art. I, §19).
 Id. at 619.
 Kohn, supra note 51, at 605.
 See generally 7 U.S.C. § 2270b–c (allows the Department of Agriculture to investigate deaths of firefighters in the line of duty).
 Kohn, supra note 51, at 605 (Settling out of court. This practice appeared to be popular immediately following Congress’s passage of the legislation and throughout the mid-2000s; thereafter, the law became more or less dormant).
 Id. at 605-06.
 Hayley Smith, Private Fire Crews in Wine Country Raise Concerns Over Equity and Safety, L.A. Times (Oct. 9, 2020, 12:00 PM), https://www.latimes.com/california/story/2020-10-09/questions-about-private-fire-crews-in-wine-country-inspire-concerns-over-equity-safety.
 A.B. 2380, 2017–2018 Leg. Sess. (Cal. 2018).
 Artemis Moshtaghian and Christina Maxouris, The Cameron Peak Fire in Colorado is the Largest in the State’s History, CNN (Oct. 15, 2020, 4:43 PM), https://www.cnn.com/2020/10/15/us/colorado-cameron-peak-fire/index.html.
 Melissa Alonso and Ray Sanchez, California’s Record-breaking Wildfires Consume Nearly 1 Million Acres in a Month, CNN (Oct. 17, 2020, 2:04 PM), https://www.cnn.com/2020/10/17/us/california-wildfires-saturday/index.html.