NJ Legislators Asked To Repeal Liability Immunity For Out Of Control Prescribed Burn Wildfire Damage

Posted on May 9, 2022 by Bill Wolfe

Legislature Must Conduct Oversight Of Murphy DEP Claim Of Lack Of Legislative Authority To Address Wildfire Risks in Land Use Programs

I must begin this post by providing context and an example.

Legal liability for causing harm is a significant structural component of public policies to protect the public interest, particularly human health and the environment. Liability for causing harm can reinforce and even strengthen protective regulatory policies (ELI Institute):

Liability for environmental harm is designed to compensate affected parties, with a particular focus on restoring or replacing injured resources and/or providing compensation for lost value. By increasing the costs for those who harm the environment, liability provisions can serve an important deterrent role, promoting compliance with laws and regulations. Liability provisions can also serve as gap-fillers, covering activities not specifically identified as illegal but nevertheless resulting in harm to the environment, livelihoods, and public health.

Simply put: when the law allows corporations and people to avoid accountability for unsafe and negligent practices that cause harm, then they act with impunity and we are all worse off.

As an example: We recently experienced corruption, concrete negative effects, and the huge implications of the liability scheme when NY Gov. Cuomo – followed by NJ Gov. Murphy and the NJ Legislature – provided liability immunity for negligence in responding to COVID, see:

Repeat: “NY’s liability shield is linked to higher nursing home death rates”.

Public outrage forced Gov. Cuomo to repeal that law, see:

With that context, now, let’s get to the topic of today’s post.

Last week, I wrote that a “prescribed burn” by the US Forest Service started the biggest wildfire in the US in New Mexico. That wildfire damaged billions of dollars in property and put lives at risk. Development was allowed to be built in areas of extreme wildfire risks, see:

That post also explained how the NJ legislature – just like COVID in nursing homes – recently very quietly provided broad liability immunity for damage from prescribed burns, including damage from wildfires:

The Prescribed Burn Act, specifically see C.13:9-44.16 Prescribed burn deemed to be in public interest; immunity from liability, also exempts wildfires caused by prescribed burns that get out of control and damage people and property (e.g. your barn or house burns down or your animals are killed).

And I exposed the claim by the Murphy DEP that DEP lacks common sense legal authority to regulate land use to prevent and reduce the risks of wildfire from proposed new development and existing development, even in mapped areas of “extreme wildfire risk”, see:

I was stunned that the Department wrote to deny legislative authority to consider wildfire risks in DEP’s land use regulatory programs. DEP wrote:

While the Department has considerable authority to regulate certain activities in particular environmentally sensitive areas, the Department does not possess the sort of master land use planning or regulatory authority alluded to by Petitioner.

I previously wrote to Senator Smith to conduct oversight of that DEP claim and – if accurate – to close that legal gap.

So, let’s not wait for a New Mexico out of control prescribed burn disaster to act.

Let’s learn from New York State’s COVID liability experience and repeal bad law.

Let’s close the legal land use gaps DEP claims exist.

Let’s not allow more people and property in harms way and repeat the historical mistakes of allowing development in hazardous coastal and flood locations.

Let’s make common sense reforms:

  • REPEAL THE WILDFIRE DAMAGE LIABILITY EXEMPTION FOR PRESCRIBED BURNS.
  • PROVIDE LEGAL AUTHORITY TO DEP TO RESTRICT LAND USE IN EXTREME WILDFIRE AREAS.

Ironically, in a February 10 Senate hearing, both Murphy DEP Commissioner and Senate Environment Committee Chairman Bob Smith highlighted the wildfire risks of western fires, like the New Mexico blaze. Amazingly, DEP Commissioner LaTourette even touted DEP’s prescribed burn program (without even a mention of the liability waiver or lack of land use authority issues).

So, I wrote the following letter to Senate Environment Committee Chairman Bob Smith and urge you to contact your legislator and Gov. Murphy:

Dear Senator Smith:

As you and DEP Commissioner LaTourette raised concerns about western wildfires during the February 10, 2022 Senate Environment Committee, I thought you would be concerned that the largest active wildfire in the country currently burning in New Mexico was started by a US Forest Service prescribed burn that got out of control.

According to a New Mexico State Senator and Congressional representatives, the US Forest Service “fire model” determined that the prescribed burn was “safe”, despite local fire restrictions due to extremely fire inducing conditions, e.g. drought, wind, relative humidity, soil moisture, vegetation, landscape, et al.

As you know, in 2018, the legislature enacted The Prescribed Burn Act, specifically see C.13:9-44.16, which established liability exemptions for prescribed burns that get out of control and cause damage.

As you also know, the DEP recently announced support for expanding DEP controlled burns in NJ.

In light of the New Mexico situation and the claim that the US Forest Service fire model appears to be seriously flawed, I urge your reconsideration and repeal of the liability exemption established by The Prescribed Burn Act.

I also request that you conduct oversight of DEP’s “fire model” to determine if it is current and reflects the best available science.

Links to the New Mexico news accounts are provided below, FYI,

Respectfully,

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