by Michael Howell
A lawsuit was filed in Federal District Court in Missoula on May 7 accusing the U.S. Forest Service of violating the Endangered Species Act by spraying aerial fire retardant containing a toxic brew of heavy metals on wildfires. The allegations are based upon the findings in a University of Southern California study, “Metals in Wildfire Suppressants,” (Schammel, M. H., et al., Environ. Sci. Technol. Lett. 2024, 11, 1247-1253) which found that the fire retardant being used by the Forest Service contained vanadium, chromium, manganese, copper, arsenic, cadmium, antimony, barium, thallium, and lead “at concentrations four to 2,880 times greater than drinking water regulatory limits.” The study estimated that between 2009 and 2021, about 840,000 pounds of toxic metals were added into the environment due to fire retardant drops in the United States. Several brands of fire retardant were examined and found to have varying amounts of metals in them, but Phos-Chek, the retardant used by the U.S. Forest Service, was one of the worst.
Plaintiff in the case, the Forest Service Employees for Environmental Ethics (FSEEE), is a 501(c)(3) founded in 1989 with its principal place of business in Eugene, Oregon. The case was filed in Federal District Court in Missoula because the Forest Service Northern Region Office is in this district and the aerial retardants being used by wildland firefighting agencies are tested and approved by the United States Department of Agriculture’s Missoula Technology and Development Center. FSEEE describes itself as composed of thousands of concerned citizens, present, former, and retired Forest Service employees, and other resource managers, whose mission is to forge a socially responsible value system for the Forest Service based on a land ethic that ensures ecologically and economically sustainable resource management.
FSEEE notes in its lawsuit that the Endangered Species Act requires the Forest Service to ensure that any action it takes, including the use of aerial fire retardant, will not jeopardize the survival and recovery of endangered and threatened species or adversely modify a species-designated physical habitat. As part of that process the Forest Service must obtain from the National Marine Fisheries Service (NMFS) and U.S. Fish and Wildlife Service (FWS) their expert, scientific “biological opinion” regarding the effects retardant use will have on threatened and endangered species and critical habitat.
The lawsuit alleges, “based on information and belief, The Forest Service has known about the presence of some, or all, of these metals in aerial fire retardant since well before the publication of the USC study.” However, the suit claims, the Forest Service’s biological assessments sent to the NMFS and FWP, “did not disclose the concentration, or even the presence, of these toxic metals in aerial retardant.”
“Unsurprisingly, as the Forest Service did not tell NMFS or FWP about the presence of toxic metals in retardant, the biological opinions do not mention, much less assess, the direct, indirect, or cumulative effects that retardant’s toxic metals will have on Threatened and Endangered species. The biological opinions focus exclusively on retardant’s fertilizer ingredients (e.g., phosphate and ammonia), which coat vegetation to slow combustion,” it states in the lawsuit.
As a result, the plaintiff alleges that both NMFS and FWP are in violation of the Administrative Procedure Act for issuing arbitrary, capricious, and unlawful biological opinions.
FSEEE is asking the court to, “declare that the Forest Service’s continuous and on-going dumping of toxic metal-laced retardant violates the Endangered Species Act… and compel the Forest Service to comply with applicable environmental statutes, prevent irreparable harm, and satisfy the public interest… [and]set aside and remand the biological opinions of the NMFS and FWP.”
According to FSEEE Executive Director Andy Stahl, “A retardant line on the ground is basically a Superfund site. It has Superfund levels of toxic metals.” He also points to the lack of evidence that fire retardant is effective enough at stopping fires to warrant its environmental harms.
According to Stahl, the Forest Service likes to claim in its Environmental Impact Statements that they are 98% successful in keeping fires from growing to over 300 acres in size. But that success rate, he says, is not due to the use of aerial fire retardant.
In fact, he says, half the fires on National Forest land extinguish themselves without any initial attack, mostly in the eastern U.S. due to the higher humidity. Only 5% of fires on the national forest actually get treated with aerial retardant and half the time that aerial retardant is ordered it does not arrive.
According to Stahl, the Forest Service has the information it needs to do a study to find out how effective that use is in stopping wildfires from growing to over 300 acres.
“They could simply take the number of times that retardant is ordered but not available and determine how many grew beyond 300 acres and compare it to the number of times that it was used and the fires grew more than 300 acres. It’s called a controlled study. But they refuse to do that,” said Stahl.
He said not only is there no evidence that the use of retardant works better than water drops, it is much more costly. He said that most countries in the world that fight wildfires from the air use only water scoopers. He points to Montana Senator Tim Sheehy’s business as an example of an aerial firefighting business that is successful using only water scoopers to attack the fires and notes that a study by the Rand Corporation concluded that there is no evidence that aerial retardant drops make any difference in the statistics. As a result they recommend if aerial treatment is needed that water scoopers is the way to go because water is usually available near the fires while retardant drops require returning to base, often hundreds of miles away.
“There’s no scientific evidence that it makes any difference in wildfire outcomes,” said Stahl. “This is like dumping cash out of airplanes, except that it’s toxic and you can’t buy anything with it because it doesn’t work.”
FSEEE sued the Forest Service over its use of retardant in 2022 under the Clean Water Act. In that cas, U.S. District Court Judge Dana Christiansen found that the use of aerial retardant does pollute streams in violation of federal law, but despite this finding he also agreed with the Forest Service’s claim that dropping retardant from aircraft into areas near waterways was sometimes necessary to protect lives and property and ruled that they could continue using it because banning retardant could cause greater environmental damage from wildland fires.
In this case, under the Endangered Species Act and given the new information about the toxic metal content as well as the lack of any convincing evidence that aerial retardant drops actually make a difference, Stahl is hopeful for a different outcome.
Another retired U.S. Forest Service scientist, Dr. Jack Cohen, who has done extensive research in the laboratory and in the field, including a study of the Roaring Lion Fire in the Bitterroot, also wonders, “Why are we putting our time and energy into wildfire fighting efforts with such limited margins of success. There is no management trend that shows that we are going to be able to control all wildfires.”
Cohen now advocates shifting our focus from preventing wildfires, to preventing home ignition as the best way to protect lives and property. More information can be found in his article, “Community Destruction During Extreme Wildfires is a Home Ignition Problem,” published in Wildfire Today in 2010.
The Forest Service did not respond to a request for comments in time for publication.