Oil Lobby Pushed Pollution Loophole for Wildfire Smoke

Seventy-five million people nationwide are under air quality alerts, as days of smoke-filled skies send soot levels soaring more than 10 times beyond what federal regulators consider safe for breathing.

But in federal air quality data, it will be as if those days never happened. That’s because a Big Oil-backed exemption in federal environmental law allows states to discount pollution from “exceptional events” beyond their control, including wildfires. And while environmental regulators are considering cracking down on soot and particle pollution, industry groups are opposing those reforms, too.

Under current rules, states like New York, where residents have been urged to remain indoors, won’t have their “hazardous” air quality index levels count against their compliance with the federal Clean Air Act — so emissions sources in the state, for example, won’t be required to reduce other discharges to help offset the smoke pollution.

“Every air quality monitor from New York to D.C. is going to blow past the limit,” said Sanjay Narayan, a managing attorney with the Sierra Club’s Environmental Law Program. But instead of localities counting that data towards the overall standards they’re required to maintain, he said, “They’ll say, ‘This is caused by wildfires, so we’ll continue to do what we normally do.’”

Environmental justice groups in cities like Phoenix, Chicago, and Detroit have previously accused states of exploiting the wildfire loophole to avoid cleaning up air that’s already dangerously dirty — often to the benefit of polluters that also helped push changes to the Clean Air Act beginning in the mid-2000s.

Those changes allow states to skip reporting pollution from natural occurrences like dust storms, thereby reducing the likelihood of triggering enhanced cleanup measures that could impact industrial activities. In 2016, the oil industry’s top lobbying group even took the rare step of siding with federal environmental regulators in a court challenge from green groups arguing that they had illegally expanded the reporting exemptions to include some human-caused pollution.

In an echo of its larger campaign of climate denial, oil lobbyists argued that it was virtually impossible to differentiate between “purely natural emissions” and those connected to human activity — so regulators should treat wildfires and other similar occurrences as “natural events.”

Last year, a panel of outside scientific experts took the opposite position, questioning whether federal regulators should continue to treat wildfires as “exceptional” given that they’re now seasonal events.

“The dramatic increase in wildfires over the last decade is not natural,” wrote the Clean Air Scientific Advisory Committee in its March 2022 recommendations, noting that the causes included both climate change and land management practices. “Given the potential for significant adverse health events, it may be time to reconsider the current approach.”

Dirtying The Clean Air Act

When Congress passed the Clean Air Act in 1970, its advocates were concerned primarily with pollution spewing from industrial sources like smokestacks — problems regulators could pinpoint and reduce. Under the law, the Environmental Protection Agency (EPA) sets pollution control standards that states must find ways to meet and maintain. States are also required to report any air quality data falling below those standards.

The loophole for exceptional events, which was codified in 2005 amendments to the Clean Air Act, was intended to avoid penalizing states for events they can’t control. While New York City suffers through the worst air quality in the world this week, for example, there’s little state regulators can do to stop Canadian wildfires.

At the time, oil lobbyists praised the move, encouraging the EPA in 2006 regulatory comments to “expand the definition of exceptional events to include all emissions and events that are beyond the control” of states, and they explicitly cited particle pollution from wildfires as an example. Over time, the federal agency has continued to expand the definition, making it easier for states to receive waivers.

But while pollution from wildfires may…