Questions for Legal Folks on the Fire Retardant Order

Here’s (5-26-2023) a link to the order.. the FS has to work with the EPA and apparently needs to check in with the judge regularly as to how it’s progressing.

Some people have asked questions, to which I do not know the answer. I know that there are highly knowledgeable people (including a/the plaintiff) so hopefully we can get all our questions answered.

1. This is a Forest Service case, so it doesn’t seem to apply to BLM or other federal lands (?). Is it the airplane or the landowner that controls? So States with airplanes/retardant don’t need permits? Or perhaps they will also be incorporated somehow in the new permitting process (if they want to be?). And shared resources over interlocking ownerships (common in many places) sounds like the Nightmare on Checkerboard Street.

2. The ruling only applies to some states (Oregon, California, Montana, Idaho, Wyoming, Colorado, Nevada, Arizona, New Mexico, and Alaska) also,apparently not Washington nor Utah, and none of the Eastern, Midwestern or Southern states. It seems like this would be very difficult for the FS to keep track of. Perhaps this is an example of lawsuits don’t always lead to coherent policy outcomes.

3. Since some of these releases are accidental, will the EPA just estimate how many accidents have been happening and permit that.. or require some kind of compensatory mitigation? Will the proposed Fed/State regulatory approach be subject to rulemaking and public comment? Or is that all unknown at this point?

4. Mr. Wuerthner’s declaration seems important. Is this the “usual suspect” Wuerthner? Does someone have a copy of his declaration? It might be interesting.

Here are a few paragraphs about the injunction:

FSEEE has not offered sufficient evidence on the hardships to the parties and has failed to demonstrate that the public interest would not be disserved by a permanent injunction. The USFS explains that the 213 recorded intrusions only occurred where it was necessary “to protect human life or public safety (23intrusions) or due to accident (190 intrusions).” (Doc. 12 at 9.) Although the injunction would presumably allow the USFS to continue to aerially deploy fire retardant, it is unclear how the agency would proceed or if the agency could completely avoid future CWA violations. Thus, the requested injunction could conceivably result in greater harm from wildfires—including to human life and property and to the environment—by preventing the USFS from effectively utilizing one of its fire fighting tools.

Although FSEEE claims that fire retardant is an ineffective tool in fighting wildfires, (Doc. 24 at 9), this fact is disputed, (see Docs. 8-1, 8-2). Additionally, although FSEEE has presented possible solutions that would allow continued use of retardant while reducing accidental discharges, such as a 600-foot buffer requirement, (Doc. 24 at 10), it has failed to demonstrate that such solutions would
actually be effective from either parties’ perspective. Moreover, FSEEE has not addressed how the injunction would be enforced, which would itself create a significant burden for both parties.

And of course both the FS and EPA have many other things on their plates- and tell us they are overwhelmed by work and are having trouble hiring people.. in the FS’s case actually fighting fires, spending IRA and BIL money, and battling the climate emergency while writing MOG rules and plan revisions.I’ve described the EPA lack of capacity and the bipartisan bill here. This would be an idea place for the separation of powers to kick in, IMHO.

6 thoughts on “Questions for Legal Folks on the Fire Retardant Order”

  1. I like “Nightmare on Checkerboard Street” – I certainly feel like I’ve seen that movie more than once!

    As for your questions, with respect to (2), as I read it there is no injunction. The FS can continue to deploy retardant in the affected states as it has been doing, so long as it can demonstrate to the court that it is making progress on obtaining the general NPDES permit for fire retardant discharges. So the immediate operational effect for firefighting should be minimal, unless I’m missing something. The permit, once obtained, will presumably be nationwide.

    The practicalities of developing such a permit are challenging but probably not insurmountable. EPA has issued a general NPDES permit for pesticide discharges that I imagine addresses issues such as drift and accidental discharge. It probably isn’t a perfect template, but at least EPA has confronted analogous issues before.

    Information on the pesticide general permit is here:

    • EPA may permit pollution at levels that allow water quality standards to be met, and no more. When it issued the aerial pesticide permit, EPA relied on its FIFRA licensing, which authorizes EPA to approve pesticide use that “will not generally cause unreasonable adverse effects on the environment.” Every registered pesticide has directions on its container label which, if followed, protect against “unreasonable adverse effects.” In essence, the NPDES permit for aerial pesticide use says applicators are permitted to spray pesticides, including drift into water, so long as they follow the label directions.

      There are no comparable label directions for aerial fire retardant. Fire retardant is not a registered chemical for any use. EPA will have to figure out the science of how much retardant should be permitted, which, to meet water quality standards, will depend on the size of the receiving waters. Small mountain streams are less capable of diluting retardant than are large bodies of water (“dilution is the solution to pollution”).

      What we do know about retardant is that when discharged into water, during regular use, it has caused major fish kills. That’s a water quality standard violation on its face.

    • Thanks, Rich! I understand the “no injunction” thing. I guess my question was that since the lawsuit causes the FS (only?) to apply for a permit, legally would other entities have to also apply for permits when they want to use retardant? Say BLM, states and so on?

      Or is there some kind of legal idea that “well, if the FS has to, we have to as well” or “someone else might sue us if we don’t, so we ought to follow the same rules?” I guess my question is this a place where States might be laboratories for different approaches, or not, based on the CWA being federal.

      • I’m well beyond my competence here, but I believe the retardant permit would be a general (as opposed to individual) NPDES permit that would apply to all retardant using entities, including the FS, BLM, and the states. Some info from EPA on individual vs general permits appears below. Others please feel free to weigh in!


        What are the primary differences between an NPDES individual permit and an NPDES general permit?

        A National Pollutant Discharge Elimination System (NPDES) individual permit is written to reflect site-specific conditions of a single discharger (or in rare instances to multiple co-permittees) based on information submitted by that discharger in a permit application and is unique to that discharger whereas an NPDES general permit is written to cover multiple dischargers with similar operations and types of discharges based on the permit writer’s professional knowledge of those types of activities and discharges. Individual permits are issued directly to an individual discharger whereas a general permit is issued to no one in particular with multiple dischargers obtaining coverage under that general permit after it is issued, consistent with the permit eligibility and authorization provisions. As such, dischargers covered under general permits know their applicable requirements before obtaining coverage under that permit. Furthermore, obtaining coverage under a general permit is typically quicker than an individual permit with coverage under a general permit often occurring immediately (depending on how the permit is written) or after a short waiting period. Coverage under an individual permit may take six months or longer.

  2. Thanks, this seems relatively common-sensical. My own experiences with EPA regulators (in NEPA reviews and with agbiotech) have been suboptimal, but one can always hope for the best!

  3. It’s a little odd to see standing granted for less than the entire affected area based on the standing declarations, but the reasoning seems specific to the Clean Water Act requirement to notify the specific states of the intent to sue. It would be interesting to hear the strategy behind the choice of states. (Maybe Wuerthner just needs to get out a little more.)

    The actual decision at issue is apparently a Forest Service 2011 decision to use retardant, so I think the outcome of this case is only binding on the Forest Service (and the court limited it to the specific states). It does have obvious implications for any other party that plans to drop retardant anywhere. Anticipating that, EPA is more likely to pursue a desirable “policy outcome” by developing a general permit that could be used by anyone, along the lines that Rich J has explained (thanks for that).

    The court cites a Supreme Court case for holding that the “grant of jurisdiction to ensure
    compliance with a statute hardly suggests an absolute duty to do so under any and
    all circumstances.” That would seem to permit violation of water quality standards in some cases (re. Andy’s comment).

    The court’s decision seems to turn on the conclusion that AFSEE “failed to demonstrate that the public interest would not be disserved by a permanent injunction.” (Or eliminating the double-negative, they did not show the public interest would be served. This balancing is something that courts have a lot of discretion in, and it’s not surprising that was the kicker here for what a lot of people would think is bad public policy. What surprised me was that the court did not get into the factual questions raised about the frequency of discharges or the effectiveness of retardant or alternative approaches. These seem like “material facts” that would bar summary judgment, but maybe because they only relate to the injunction remedy they don’t? (The limits of my knowledge of judicial procedure have been reached.)


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