Anachronistic Pollution Policy: The Case of Wildfire Smoke Regulation

Abstract

Wildfire is on the rise. The United States is witnessing a spectacular increase in acres lost to catastrophic wildfires, a phenomenon fed by the generally hotter and dryer conditions associated with climate change. In addition to losses in lives, property, and natural resources, wildfires contribute thousands of tons of air pollution each year. Ironically, one of the most effective tools to reduce the incidence and severity of unplanned wildfires is fire. Prescribed, or controlled, burning reduces the buildup of vegetation resulting from years of wildfire-suppression policy. At present, the number of acres subject to prescribed burns falls far short of the optimal number needed to restore natural ecosystems and reduce damages from unplanned wildfires. Air-pollution law and policy is an important factor contributing to the underprovision of prescribed fire that has so far escaped in-depth treatment in the law and policy literature. After setting forth the relevant air quality framework, this Article argues that decisions regarding planned wildfire are marred by an anachronistic and inaccurate distinction between "natural" and "anthropogenic" fire. Rationalizing that unplanned wildfires are "natural," the federal government excludes pollutants from such fires from air quality compliance calculations at the same time it encourages states to vigorously control pollutants from "anthropogenic," prescribed fires. The result contributes to an undervaluation of necessary, planned wildfire. Wildfire air pollution policy is also hindered by governance structures that place air quality and resource agencies at odds with each other, and by state nuisance authorities that enable narrow local interests to shut down prescribed fire, all of which trump the broader public interest in reduced wildfire risk and healthier forests. This Article suggests several solutions to remove these distortions, including adopting a default rule whereby all wildfire smoke, of whatever origin, "counts" for purposes of air quality compliance. Together with adopting mechanisms to require air pollution and resource agencies to both participate in planned burning decisions and de-emphasize the influence of nuisance standards, this "smoke is smoke" rule will ensure that the air pollution policy better reflects the true costs and benefits of prescribed fire.