California’s wildfire season started early again this year and its destruction already for the record books with the Dixie fire currently the second largest in the state’s history and growing while the Caldor fire has caused the evacuation of residents from the iconic South Lake Tahoe communities.  Here, Stanford Law School’s Professor Buzz Thompson, one of the country’s leading water law experts, discusses California’s wildfires, drought, water, and climate change with Stanford Legal on SiriusXM co-hosts Professors Joseph Bankman and Richard Thompson Ford. To listen to the full interview, go to Stanford Legal.

Bankman: Every year, those of us in the West are seeing smoke in our air from wildfires. And I think that’s true from the Pacific Ocean to east of the Rockies right now, isn’t it?

Thompson: Joe you’re absolutely right. We have in the western United States gone from the situation where droughts occurred once every 10 or 20 years, to a situation where we never seem to leave a drought for very long before we enter into it again. We used to talk about fire seasons, nowadays we talk about fire years because they last all year long.

Ford: And right now, the Dixie fire has burned more than 750,000 acres [as of August 29], taking hundreds of homes and businesses with it, and it’s only 35 percent contained. But the fires are connected to a larger phenomenon aren’t they? I mean, we’ve also had record high temperatures in places like Portland and Seattle, where no one owns an air conditioner. Are these things linked in some way?

Thompson: They’re definitely linked. The first thing I want to emphasize is that the Dixie fire is actually the second largest fire in the history of the state of California. The only fire that was bigger than that was the August Complex fire last year, which was over a million acres burned. And actually, last year in 2020, of the 10  largest wildfires in the history of the state of California, half of them—five—occurred in 2020 alone. And now you’re seeing with the Dixie fire that again it is the second largest fire. It’s, as you point out, already over 750,000 acres burned. It’s 35 percent contained at this point, which means it could easily take over the top spot from last year’s August Complex fire.

So, the first thing to recognize is that not only are things bad right now, but they are just far worse than what we have seen before. Second point is that the wildfires are part of just a much larger problem. And I would say that larger problem—you know, really, the ultimate problem— is climate change. And one of the things that we expect from climate change is that disastrous events—droughts, fires and the like—that may have occurred in the past, will occur more frequently in the future, and they will be even worse than they were. And that’s what we’re seeing with wild fires.

But climate change is also leading to another big problem, which is drought and lack of water. And that lack of water can also impact wildfires. In fact, it is a major cause of our wind fires.

Bankman: And Buzz, when we talk about drought, I mean, most of us think about how much rainfall we’ve had. And the last year we had, I think, only about half of what we usually get, if I’m right, depending on the location. The previous year was very light. We have had a cycle of light year, after light year, after light year, light rainfall that is. Is that climate change-related? How do we understand the cycles?

Thompson: Excellent question Joe. And let me first correct you. That last year was a dry year, so we’re in our second dry year. But if you actually go back to 2019, that was the wettest year in the state of California history. And if we had had an interview like this in 2019 I would have said that California is not in a state of drought, it’s a state of whiplash. And it really is. It’s a state where we can be in drought and then suddenly end up with floods, and then go back to droughts.

In the mid-19th century, there was a period of time when it rained in California and Oregon for about 45 days. And it rained so much that it flooded California. It created a lake in the middle of the central valley of California that was about 200 miles long and about 20 miles wide. It flooded the city of Sacramento. By that summer we were at the very beginning of what was known as the great civil war drought of 1862, which impacted the entire nation and was probably one of the worst droughts ever. So, it’s not just droughts we have, but it’s droughts with floods the following year. But this is absolutely what you would expect in the face of climate change. You’re expecting extremes, more extremes, and then more extreme extremes. The drought situation that we have right now, however, is one that we will continue to face, again broken up occasionally by floods. And those droughts are a major cause of, again, the wildfires that we’re seeing right now, as well as a large number of other problems.

Ford: So, not only has California historically been subject to lots of droughts and lots of flooding, but it’s getting worse because of climate change. In this very dramatic way, I’m wondering Buzz, what’s the relationship between all the fires that we’re seeing and new settlements in parts of the state where people didn’t used to live? Is that one of the factors as well contributing to the fires, or is it mainly climate change?

Thompson: I would separate the fire problem, Rich, into two parts. The first is that we are seeing larger fires today and longer wildfire seasons than we had in the past. That’s the result of probably two or three things. The first is that we have historically been suppressing our fires. The answer to fires in the 20th century, and you know this from the old Smokey the Bear advertisements that you used to see on TV or in comic books, was to suppress the fires and try to prevent the fires. But that led to a huge buildup in the fuels. You know, the old dead trees. Very thick forest areas. So that’s contributed to the fires being worse. In addition to that, we have climate change over the last several decades, and that climate change has also led to higher temperatures, more frequent and extreme droughts, and that’s led to tree die-off. So that also increases the fuels that can readily catch fire and spread the fire once that fire begins. So those are two major causes of larger fires, and then longer wildfire seasons.

In addition to that though, the wildfires that we have tend to be more destructive of human settlements, right? So, a fire by itself obviously can be problematic, but our real concern today is entire towns that burn up and displacing people, and all of the smoke that we have to breathe on a regular basis these days. And a lot of that comes from the fact that we haven’t really been doing our land use planning appropriate for the area that we live in. So, we tend to build our towns right in the forest. People love forests. I think it’s great to spend my vacations in forested areas. But a lot of people want to live in and actually build their houses there. Those houses, by the way, are also fuel. But, more importantly, it leads to those people who get displaced. And because, again, we love to live in the west, where we have grand vistas, that means that, unfortunately, we can end up having to breathe the air when these wildfires begin.

Ford: There just are so many causes it’s a little dispiriting.

Thompson: Well another way of looking at that is that we actually have a variety of ways of trying to deal with the problem. The one thing that’s hard to deal with immediately is the climate change. As the recent report by the Intergovernmental Panel on Climate Change noted, climate change is baked into our future, no matter what we do right now in terms of reducing carbon. And we should reduce carbon. It’s baked into our future. We’re going to have it, so we can’t do anything about that.

But we can eliminate a lot of that fuel that has built up by planning smaller prescribed burns in our forests. That’s what our Indigenous population did before we came along and started suppressing the fires. We can also engage in better land use. We can create the defensible spaces within our forest communities. We can have people move when their homes burn down rather than just building exactly where the first are going to occur again.

Bankman: When people live in these areas, they’ve got to bring electricity in. And it seems like a lot of these fires start because there’s a power line outage and we’ve got tens of thousands of miles of, I take it, exposed power lines around.

Thompson: Above ground energy infrastructure is a cause of a variety of fires. The fires are going to be worse than they otherwise would have been, but they are frequently created by those sparks or shortages that occur on the surface. And, in fact, the fire that we started out the show talking about—the Dixie fire—there’s some evidence that that might have been created by a circuit outage on July 13, which led to a blown fuse, and then a tree toppling, and then things catching fire. And one of the things that PG&E is working on—in fact, all of our major electricity utilities in the state of California are working on—is trying to move more and more things underground, and trying to improve the things that are above ground. We absolutely have to do that, but I also just want to emphasize, that costs money. And one of the reasons we frequently didn’t do it in the past was that groups like PG&E were afraid that if they ask for the money necessary to do all of that on a quick basis, they would have had a consumer revolt on their hands. So, we absolutely have to do that, but people have to be willing to spend the money in order to get that done.

Bankman: You know one thing that occurs to me, as you say this Buzz, is that it’s easy to beat up on a utility like PG&E, but ultimately it’s a question of money. And who’s going to pay for it? One interesting issue it raises is what do we do about someone who lives in a fire zone—the cost of making that electricity safe might be really huge. And do we make that person pay for it?

Thompson: I’m not going to make myself popular with communities in our forested foothills and mountains of California, but Joe, you’re absolutely right. It is ultimately a matter of economics and you need to send people the right signals. You should send them a signal at the very outset though, because that’s the easiest time to send people economic signal. To say ‘If you want to build out here, in the middle of nowhere, where, number one, you’re at greater risk. And second of all you’re going to be demanding electricity, and probably the cheapest easiest way to be building will be an above-ground power line. Okay, you can move out here, but here’s the cost you’re going to be imposing, and you should be paying for.’

The next question becomes, what if they’re out there already? Then what type of economic signals might you be able to send them that would be valuable? The Nature Conservancy has been working on ways of building fire breaks around some of these communities in California. And those fire breaks might also serve as parks that people can go to. What if we have a system where people get a discount on their fire insurance if the town invests in the big fire break recreational areas?  That’s an example of an economic signal that maybe people won’t be as upset about, because it would actually be a way of lowering their fire insurance costs.

Ford: Buzz, can you talk about a hot drought and how it may be different than the kind of droughts I remember as a kid living in the Central Valley, where occasionally we did have droughts and the farmers were upset about it. So, what’s a hot drought? And why is it more problematic for us in California?

Thompson: That’s a really good question, Rich. We’ve had droughts for centuries in the state of California, and if nothing had changed, we would have continued with that particular pattern. But what we are encountering more and more today is what’s known as a hot drought. In the past, droughts were not connected to a particularly warm year. You could have a drought and it could be a cold year. In the future, all of our droughts are going to be in years that are warmer than they’ve historically been. And that poses a wide variety of problems. In particular, it means that even if we have the same level of precipitation as we had before, less of that actually gets to a river or stream.

The first problem in the western United States that we have with a hot droughts, is that we depend upon our snowpack. All the snow, for example, up on the Sierra mountains, is a natural reservoir for us. We need water in summer and the fall when it’s not going to rain. In the past, that snowpack would melt over time, we could capture it, and we could use it during the time when there wasn’t precipitation. Again, that snowpack is a natural reservoir. Now, that snowpack is disappearing. In drought years now, there is virtually no snow up there, so we’ve effectively eliminated that natural reservoir.

Equally importantly, you have drier soil, so that, when it does rain, what little rain you get during a drought gets absorbed by the soil. Because it’s hotter, you also have higher evaporation. So, in a surface reservoir, more of that actually evaporates.

There is a situation that we are now seeing where snow sublimates, a term which, at best five years ago, I had never heard of. With sublimation, snow goes from the solid state to the gaseous state without ever melting. So, we lose water that way. And then, finally, the plants have higher transpiration rates. That means that we also get those plants absorbing more water and now in the central Valley, where we have all the farmers who are trying to grow crops, they need more water than they needed before. So, all of that means that, no matter what level of precipitation we have, we’re in just much worse shape than we were before.

Bankman: Wow. This is all so sobering. And we talked about wildfires as the problem that we tie to drought. But actually Buzz, there are lots of problems that are tied to drought aren’t there?

Thompson: Absolutely true—there are multiple problems. So, first thing is in a drought, none of us are able to get the water that we normally use. Right now, for example, in California, Governor Newsom has asked all of us to voluntarily cut back on water use by 15 percent. We can do that. It’s an inconvenience, but we can do that. In much worse shape are the farms, because it’s very difficult for the farmers to cut back and then continue to grow the crops that we need. And yet the farmers in the central valley right now are getting virtually none of the surface water that they would historically receive.

And then you also have to worry about energy production. Hydro power is a major energy producer and yet, as our reservoirs lose water, those reservoirs get down to a level where it is impossible to continue to produce hydro power. Best example is Oroville. That’s one of our biggest dams in California and it got hit for the first time ever in its 50 years. It has gone down to a level that we had to shut down the power plant. The amount of hydro power we produced in 2020, which Joe you mentioned earlier, was a dry year, it actually was a little more than half of what it would have been the year before. And that’s drought related.

Bankman: One thing that one of our terrific students here, Leehi Yona, JD/PhD ’23, has been researching is that how fires themselves contribute a lot of pollution back into the air.

Thompson: That’s absolutely right. And you’re right about Lee. She is a truly brilliant student and she’s actually getting both her law degree and her PhD from Stanford at the same time. But, as she has emphasized in her work, we have what’s known as a positive feedback loop. We have a situation as we’ve discussed already, as a result of climate change we’re getting more wildfires. When those wildfires burn the trees, those trees release that carbon dioxide, and that carbon dioxide then contributes further to climate change. So, you have again, a circular positive feedback loop, where, particularly when you realize this isn’t just happening here, it’s happening throughout the world. We are seeing climate change create problems that intensify climate change. The interesting thing that Lee is also doing is trying to determine the level of those emissions from our wildfires. But interestingly, although California tries to account for its greenhouse gases and how we can deal with them, California doesn’t count that. And so, she’s also looking at how we could better account for those greenhouse gas emissions resulting from wildfires.

Ford: Can you offer us some more ways out of this? We talked about doing things to limit wildfires. Do you have any other thoughts about even partial solutions for us?

Thompson: So, we could take each of these individual problems and talk about how to solve them. But let’s just talk about the wildfires. We’ve already talked about prescribed burns. We’ve talked about changing our land use. We’ve talked about how we might be able to use insurance premiums to actually send people the correct information. One thing that I was talking to someone about the other day is, we also have the sort of odd situation where we have a lot of our prisoners in California going out and fighting fires. But unfortunately, under California law, a lot of those prisoners when they get released from prison, cannot be firefighters or cannot have particular firefighting positions because they are felons. And one of the things we need to do is to change our law. We already began changing last year. There was a good piece of legislation that came down last year to actually give those former prisoners who have been trained in prison to be firefighters good jobs out on the fire lines. But that just shows when you get into this, you get into everything. You even get into our prison policy and employment.

Ford: It’s just there’s so many issues here and it’s fascinating. It’s also very sobering. Thank you so much Buzz for coming to talk to us about these issues today, and thank you to our audience for joining us here on Stanford Legal on Sirius XM.

Thompson: Thank you Rich, thank you Joe. It’s always a pleasure.

A global expert on water and natural resources, Barton “Buzz” Thompson, JD/MBA ’76 (BA ’72) focuses on how to improve resource management through legal, institutional, and technological innovation. He served as Special Master for the United States Supreme Court in Montana v. Wyoming, an interstate water dispute involving the Yellowstone River system.  He also is a former member of the Science Advisory Board of the United States Environmental Protection Agency.   He chairs the boards of the Resources Legacy Fund and the Stanford Habitat Conservation Board, is a California trustee of The Nature Conservancy, and is a board member of the American Farmland Trust, the Sonoran Institute, and the Santa Lucia Conservancy.