As US Wildfires Pollute the Skies, a Loophole is Obscuring the Impact. Can it be Fixed?

During wildfire season in the western U.S., soot-clogged skies have long triggered public alerts with advice like: Shut the windows and stay indoors. For those who can afford it: Use an air filter. As Canadian wildfire smoke curled down to Kentucky this year, officials began to do the same thing.

On alert days, “smoke’s there when you wake up in the morning, it’s there when you’re going to bed at night,” said Michelle King, the assistant director of the Louisville Metro Air Pollution Control District.

She and other regulators say they’re working on how to communicate about smoke — something she anticipates doing more often.

“We collectively are seeing, more and more, the very real impacts of climate change, and no reason to think that is slowing down or going away,” King said. “I think that this is a new normal.”

From the Midwest to the mid-Atlantic, more U.S. states are laboring to understand how and when smoke will make meeting federal health standards harder.

“The best advice a Boy Scout will give you is, ‘Don’t stand downwind of the campfire,’” said Frank Steitz, an assistant director at the New Jersey Department of Environmental Protection.

“But what if you can’t? What if you can’t avoid it?”

An obscure part of the Clean Air Act grants regulators an opening to “forgive” air pollution from wildfires, meaning that it doesn’t count against air-quality goals. After wildfires flourished across North America this year, more U.S. states east of the Mississippi may use this exceptional events rule to subtract smoke from the record, if not from the air we breathe.

But these exceptional events are no longer exceptional, and the requests to obscure them from air-quality records are more common, according to an investigation from The Guardian, The California Newsroom and MuckRock. Without reform, the exceptional events rule is likely to become a regularly used tool, one that experts warn may divert resources or distract from addressing the growing problem of wildfire smoke.

Finding common ground to change U.S. clean air law is rare. But on wildfire smoke, academics, environmental advocates and some regulators agree: it’s time to reconsider our approach.

“We’re going to have to think bigger when it comes to solutions. We’re just getting there,” said Jodi Bechtel, the assistant director for the Department of Environment and Sustainability in Clark County, Nevada. “I cringe at the idea of amending the Clean Air Act because that is such a heavy lift. But I think we’re at the point where the way it’s written and the expectations in it almost aren’t working anymore.”

This year, said Michael Benjamin, the air quality and planning chief at the California Air Resources Board (CARB), and his western colleagues “felt really bad” for eastern cities affected by Canadian fires. “But part of us, especially when it was impacting Washington D.C., we said, well, good,” he remembered. “Now the policymakers really understand what it means to be exposed to wildfire smoke. And maybe they’ll start to think seriously about how to mitigate it.”

A growing problem

Smoke from wildland fires is reversing a continent-wide, decades-long trend toward bluer skies, according to recent Stanford University studies.
A warming climate has helped to set the stage for wildfires to burn hotter and bigger. “Stopping them or making them less severe is going to be very hard and going to involve intervention on a scale that we’re just currently not prepared or able to do,” said the environmental scientist Marshall Burke, one of the leaders of Stanford’s work.

At the same time the likelihood of wildfires grows, the U.S. is considering making stricter goals for ground-level ozone and fine particulate, pointing to an avalanche of studies documenting health impacts. The Biden administration has delayed plans to take action on ozone until after next year’s election. On fine particulates, a contentious public rule-making is expected to yield a more strict standard any day now.

Yet in the face of growing risk, and in anticipation of tighter limits on these types of pollution, state and local governments have been clear: they will turn to exceptional events for relief more often, even if the process is arduous.

“Lowering the annual standard will require more exceptional event demonstrations, resulting in a significant increase in workload for the state of Arizona and Maricopa County, with no benefit to air quality or public health,” wrote the county’s department of air quality, commenting on the EPA’s proposed soot standard.

“There’s going to be much more pressure on regulatory agencies to take advantage of exceptional events,” added CARB’s Benjamin. “Sometimes people don’t understand what attainment means, and under the Clean Air Act, it’s not necessarily that you’re breathing clean air, it’s that you’re meeting these requirements that are defined by the federal government.”

Meanwhile, public agencies and other air policy observers argue that the exceptional events rule effectively undermines one of the few tools states have to combat wildfires: beneficial or “prescribed” burns.

Originated by Native Americans, controlled application of fire to wildlands reduces the risk of catastrophic infernos by clearing underbrush, pine needle beds and other fuels that make forests prone to burning. Federal and state agencies say that increasing this “good fire” is a priority. The EPA modified exceptional events guidelines in 2016, in part to do just that. But not a single prescribed fire has been forgiven under the exceptional events rule since then.

A group of 86 western scientists, researchers and advocates say that local regulators are not permitting prescribed fires because they fear they could create too much smoke — the kind that warrants exceptional events. “The current statutory scheme is selecting for the very worst type of fire when it comes to public health,” they told the EPA.

Near the California-Oregon border, the Mid Klamath Watershed Council advocates for a healthy ecosystem, which the director, Will Harling, said includes the return of beneficial fire. Obstacles to such planned burns, coupled with forgiveness offered wildfires, he said, are why his children “have smoked the equivalent of about 20,000 packs of cigarettes while they’re in their teens”.

“Just because they scrub that out of the record doesn’t mean that smoke isn’t in their lungs,” he said.

EPA spokesperson Khanya Brann, responding to our questions in writing, confirmed that exceptional events “could result in the removal of event-influenced data from the data set used to make certain regulatory decisions.”

Brann wrote that local air regulators must meet requirements in the exceptional events process, such as taking “appropriate and reasonable actions to protect public health.”

Pathways to reform

Across the political spectrum, experts, advocates and states say it’s time to change the exceptional events rule. They offer vastly different ideas about what that change should look like.

States and their advocates generally seek liberation from regulatory paperwork. Republican senators, led by Shelley Moore Capito of West Virginia, recently introduced legislation aimed in part at making filing for exceptional events easier.

Similarly, the Western Governors’ Association has argued for greater state flexibility, complaining both that “the rule is resource intensive, costly, and place[s] a significant burden on strained state resources”, and that regulators are slow to act on it. The nonpartisan association suggested to lawmakers that rules should permit more complicated multistate exceptions.

We can’t fix it, goes the reasoning, so why should we be punished for it?

The EPA, for its part, maintains it is following the law. “The Clean Air Act requires the agency to address emissions from natural events such as wildfires differently than emissions from industrial or mobile sources that EPA and Tribal, state and local air agency regulations can control,” Brann wrote.

Independent clean-air watchdogs emphasize instead that the mission of the Environmental Protection Agency is to protect public health.

That could mean stepping up enforcement, said Eric Schaeffer, the executive director of the Environmental Integrity Project, a non-profit that advocates for transparency. Plenty of controls already on the books could work better, he said, including more frequent inspections and better monitoring systems for known polluters. “There’s always more that can be done,” he said.

Michigan attorney Nick Leonard, who represents fence-line communities where Canadian smoke has mingled with routine local pollution, called the exceptional events rule a “misapplication” of the Clean Air Act and pointed out that local air regulators could simply stop using it. “It’s sort of creating this alternative reality,” he said.

Though the EPA strips exceptional events-related data from regulatory use, epidemiologists and health experts continue to analyze air quality using unmodified data, which remains available. In its annual State of the Air report, the American Lung Association has always included pollution exceedances that exceptional events would leave out, said Will Barrett, a clean-air expert for the group.

“Those are unhealthy air days,” Barrett said. “Ultimately, your lungs don’t care if the pollution is classified as an exceptional event under an obscure federal law.”

‘A warning light on the dashboard for the Clean Air Act’

For the summer of 2023, more than 20 states so far, from Wyoming to Wisconsin to North Carolina, have flagged air-quality readings that were far higher than normal. Most of these days came in June, as skies in the midwest and eastern U.S. were blanketed with Canadian wildfire smoke.

Wildfire smoke knows no borders. Unlike refineries, wildfires have no scrubbers. You can’t shut them down. But the Clean Air Act, whose pollution controls have saved millions of lives, affords the agency responsible for healthy air no direct authority to manage lands that burn.

Instead, the EPA’s response to this fast-growing source of soot, ash and toxic chemicals has been “ad hoc” and muddled by a lack of coordination with other agencies, according to a Congressional watchdog’s report earlier this year.

EPA spokesperson Brann wrote that the agency “supports efforts by agencies across the federal government — including the U.S. Department of Agriculture and the Department of the Interior, as well as interagency forums such as the Wildland Fire Leadership Council — to implement and further develop strategies to reduce wildfire risk, and to help communities prepare for, respond to, and recover from wildfires.”

The growing use of the exceptional events rule reveals “a poorer and poorer fit between the policy we have and the problems it’s trying to solve”, said Stanford University’s Michael Wara.

He called the rule “a warning light on the dashboard for the Clean Air Act”.

To heed it, say experts, it’s essential to adapt the law to the conditions under which we already breathe.

“If fires are going to become more widespread and more predictable, then that changes the calculus for air-quality determinations,” said Schaeffer of the Environmental Integrity Project. “You have to assume that’s part of your baseline now.”

The landmark law protecting air quality wasn’t created to deal with global heating. But the policies of the past are colliding with the problems of the future.

“The Clean Air Act should really include climate,” said Benjamin of CARB.

“States who have tried to keep these things separate — to keep climate change and exposure to local air pollution as two distinct things — I don’t think they’re going to be able to maintain that indefinitely,” he said.

A key assumption of air pollution policy, said Wara, has been that we are in control: “Climate change is kind of making a mockery of that.”
The obligation to protect people from polluted air remains, he added: “That’s really what the Clean Air Act is supposed to do, is keep people safe.”

While he was in college, Moiz Mir lived under an orange sky in Sacramento, California, for weeks because of the Camp Fire; some of that pollution was forgiven in nearby Nevada county as an exceptional event. His neighbors didn’t understand the risks of smoke then, or know where to get masks. He began to warn them, to educate himself, and to learn from other fire-prone communities how to cope.

Smoke, he said, “made a permanent and lasting impact” on his psyche and life path. Now 26 years old and a grassroots climate activist, he points out that “in crisis, people look to authority for answers.”

They’re still looking, as the smoke thickens.

“We were thinking like the impacts of climate change were distant,” Mir said. “But now, it’s quite literally the air that I breathe.”

Manola Secaira contributed to this report.
Smoke, Screened: The Clean Air Act’s Dirty Secret is a collaboration of The California Newsroom, MuckRock and The Guardian. Molly Peterson is a reporter for The California Newsroom. Dillon Bergin is a data reporter for MuckRock. Andrew Witherspoon is a data reporter for The Guardian.