by Dean Corrado, Fordham Environmental Law Review, Class of 22′

Over the last several years, California has suffered some of its worst wildfires in history. These fires are costly in terms of human life and financial cost. For example, the October 2017 wildfires destroyed more than $13 billion in property damage and killed 44 civilians. Scientists and politicians have different ideas on how to stop or slow down the wildfires. Each proposal accepts the fact that the current state is unsustainable.

Perhaps we must “fight fire with fire.” Historically, Native Americans have used controlled burning in California and throughout the country. Today, it is used sparingly. The current regulatory structure in California discourages controlled burning because it imposes a massive liability exposure. Currently, there is no cap on the amount of liability one can incur if their controlled burning becomes uncontrolled.

Controlled Burning in Law

California law refers to controlled burning as “prescribed burning.” Over the years, the California legislature has created a vast regulatory framework that regulates the use of prescribed burning. As a part of this framework, those who want to initiate prescribed burning on their land must do it under the supervision of a “certified prescribed burn manager.” The state certifies this person. Furthermore, under California law, there is no cap on liability individuals or insurance companies must payout if the fire spreads to unintended places.

Proposed Solution

To encourage more prescribed burning, California could alter regulations or liability costs. If done correctly, lowering liability and deregulating would incentivize an individual to engage in prescribed burning. California should adopt a cap on liability for those engaged in controlled burning. However, to guard against negligent burning, California should heighten the standards of what it takes to be a “certified prescribed burn manager.” This balance of interests would encourage more burning, but also making that burning safer.

Prescribed burners are required to get insurance. If California capped the amount that the insurance policy had to pay out, it would enable market forces to illicit more prescribed burning. The cap would increase the number of companies in the market and lower overall costs.

Increased prescribed burning is not necessarily a good thing. If not regulated properly, prescribed burning could leave you with the same problem that exists now- millions of acres burned with no way to control it. To address this, California could implement legislation that requires burn managers to complete continuing education every year. This change would make them more effective at their job and reduce the overall risk that someone’s prescribed burning does not result in unintended consequences.

Commonsense policy reform requires deference to market forces. California could create a safer future by looking at its past.