What you need to know about the loophole hiding the extent of US wildfire pollution
When smoke from the Camp fire poured down over northern California in 2018, schools across the region closed to protect kids from breathing dangerous air. When wildfires blanketed the Willamette valley with soot and ash in 2020, hundreds of Oregonians sought urgent care for shortness of breath, headaches and asthma. When Canadian wildfire smoke made its way to Michigan last year, ozone levels in Detroit spiked to levels that caused officials to warn residents sensitive to air pollution to take extra care.
In each of those cases, the US Environmental Protection Agency (EPA), the federal agency that oversees air quality, allowed local air regulators to strike the pollution caused by these events from air-quality records, using a mostly overlooked legal tool called the exceptional events rule, which allows pollution caused by “uncontrollable” events to be forgiven.
A new investigation from the California Newsroom, MuckRock and the Guardian found that local regulators are turning to the exceptional events rule for wildfires more and more often to reach air-quality goals – goals that are harder to meet as the climate crisis gets worse.
The review of thousands of documents, which include regulatory filings, emails and scientific analyses, also found several examples of industry groups working hand in hand with local regulators to get these exemptions.
The increasing use of the rule for wildfires, experts say, not only obscures health risks to people across the US, but undermines the goals of the landmark Clean Air Act.
Nick Leonard, who directs the Great Lakes Environmental Law Center in Detroit, Michigan,sees the problem in fairly simple terms: the growing threat of wildfire smoke is exacerbated by climate change. Climate change has been fueled by the oil and gas industry. Their lobbyists, in turn, have pushed states to use the exceptional events rule as much as possible, slowing progress to address air pollution at the local level.
“EPA’s had a stake in this problem for a long time. States have had a stake in this problem for a long time. Private companies have had a stake in this problem for a long time,” Leonard said. “And now when that problem is coming home to roost, they’re saying, well, who could have seen this coming?”
A Republican senator’s crusade
The driving force behind the exceptional events rule was Jim Inhofe, the former Republican senator from Oklahoma who, for decades, called climate change a hoax.
In the spring of 1998, air-quality managers in his home state found themselves in a tough spot. A wildfire on Mexico’s drought-stricken Yucatán peninsula had sent acrid smoke north, and around that time Oklahoma City exceeded its pollution limits. If the soot and ozone stayed on the books, they would have to tighten controls on known local polluters. Instead, they argued to the EPA that the pollution shouldn’t count because it came from a wildfire, and so was “natural” and “uncontrollable”.
The EPA turned air-quality managers down, to Inhofe’s frustration.
He held several hearings and meetings, grilling the EPA. He thought local regulators should have more discretion to ignore pollution – including the kinds that are hard to control.
Until then, no formal rule in the Clean Air Act allowed that. The EPA did have a policy, infrequently used in the 1980s and 1990s, that allowed local governments to write off some wildfire smoke on a case-by-case-basis as “unrealistic to control” or “impractical to fully control”. That wasn’t enough for the pro-business senator.
Inhofe’s years-long crusade succeeded. Once added to the Clean Air Act, the “exceptional events” rule enabled regulators to erase pollution – not from the sky, but from records used to make regulatory decisions. Since 2007, local officials have been able to request that pollution data be excluded from clean air determinations when it comes from an array of events, from volcanoes to fireworks to “unusual traffic circumstances” and the fastest-growing event of all: wildfires.
“The purpose of the amendment was deregulatory, to be sure,” said John Walke, a lawyer for the Natural Resources Defense Council (NRDC), a non-profit environmental advocacy organization.
A regulatory escape hatch
The exceptional events rule functions as a regulatory escape hatch. When soot and ozone drift in from “natural” sources like wildfires, regulators can ask the EPA for an exception. If the federal agency grants it, that air pollution is erased from the regulatory record and disregarded in regulatory decisions.
Local air officials often spend months, using publicly funded atmospheric modelling and meteorological data, to create hundreds of pages documenting why pollution exceedances shouldn’t count – sometimes with the help of industry-funded consultants.
Because justifying an exceptional event is complicated and expensive, guidance from the EPA directs regulators to apply the rule only when it has regulatory significance, including meeting federal air standards – or, in regulator speak, achieving “attainment”.
Attainment communicates to the public that the air meets conditions regulators have deemed healthy. It helps people decide where to live and work. The meeting of standards loosens both federal funding for transportation and pollution controls for factories.
What we studied, and what we found
No other rule works like exceptional events to discount recorded pollution from consideration by regulators. We requested exceptional event data the EPA does not typically make public. We reviewed thousands of pages of written material, including correspondence, materials related to contracting, and what are called “demonstrations” of these events – basically, descriptions of toxic events regulators don’t want to be responsible for.
Our analysis shows that: