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Firefighters battle the Mosquito Fire near Foresthill, California on
September 7, 2022. Photograph: Andrew Nixon/CapRadio  October 16, 2023
WHAT IS THE EXCEPTIONAL EVENTS RULE? THE LOOPHOLE LETTING U.S.
REGULATORS WIPE AIR POLLUTION FROM THE RECORD
Written by Molly Peterson, Dillon Bergin, Emily Zentner and Andrew
Witherspoon 
Edited by Derek Kravitz and Adriene Hill 
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 U.S. Environmental Protection Agency, 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 U.S., but undermines the
goals of the landmark Clean Air Act.
 A structure is destroyed along Michigan Bluff Road during the
Mosquito Fire on September 7, 2022. Andrew Nixon/CapRadio 
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?” 
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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’d 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.
 Nick Leonard, of the Great Lakes Environmental Law Center, at his
home in Detroit, Michigan, on October 6, 2023. Leonard is suing the
EPA about the agency’s clean air determination for Detroit.
Photograph: Brittany Green/The Guardian 
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, a
nonprofit 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 hard-to-find
EPA data about exceptional events. 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:
Since 2016, local regulators have flagged almost 700 exceptional
events to the EPA. The agency agreed to adjust the data on 139 of
them.
The adjustments were allowed in more than 70 counties across 20
states.
More than 21 million Americans live in areas where an adjustment
allowed local regulators to claim the area had met strict national
health standards or that the air was cleaner than it actually was.
On three-fourths of the days exceptional events were reported, local
governments pointed at wildfires in justifying their requests.
Local regulators are turning to the exceptional events rule for
wildfires more and more often to reach air-quality goals. In 2016, 19
wildfire events were submitted to the EPA. In 2020, 65 were.
Businesses and industry representatives lobbied local air regulators
before an event was even considered, as happened in Kentucky, and
worked together with them to file exceptional event requests, as
happened in Louisiana.
The use of the exceptional events rule means U.S. air-quality data
doesn’t reflect how safe it is to breathe, said Vijay Limaye, a
climate and health scientist at the NRDC.
“Our regulatory picture is really not keeping up with the true toll,
the true health burden posed by air pollution and wildfire smoke,”
he said. “And we really need to be taking into consideration the
truth on the ground in terms of what exposures look like and what that
means for public health across the country.”
The rule in practice lets regional regulators meet air-quality goals
without having to put additional demands on polluters.
“We’re just pretending like it’s just not happening,” said
Sanjay Narayan, the managing attorney for the Sierra Club’s
Environmental Law Program. “The pollution is not in the air from
sort of a regulatory perspective, which is the way in which things
become invisible. All of this is invisible unless you trawl through
all of these reports.”
In response to questions, a spokesperson for the EPA, Khanya Brann,
said the agency “takes our decisions related to exceptional events
seriously. We recognize that even when pollution (such as wildfire
smoke) is not something that an air agency can control, people still
are breathing the polluted air.”
The EPA said it requires mitigation plans where exceptional events
recur. Those plans include efforts to educate and notify the public
about the pollution risk, as well as to take “steps to identify,
study, and implement mitigating measures”.
A GROWING LOOPHOLE
Soot, ash and other particulate matter drive health risks that are
significant to pregnant people, children, outdoor workers, residents
of leaky buildings and anyone with heart or lung ailments. Ozone
produced by wildfire pollution carries an invisible threat, irritating
and inflaming lungs; even short-term exposure above certain levels
raises the risk of premature death. The federal Office of Management
and Budget estimates that in an increasingly extreme climate, wildfire
smoke exposure could increase federal healthcare expenditures by $128m
to $226m each year by the end of the century.
“We need to focus on solutions for wildfire smoke, because about 30%
to 50% of our wildfires are directly attributed to climate change and
increasing temperatures around the globe,” said Kari Nadeau, an
immunologist who directs the Center for Climate, Health and the Global
Environment at the Harvard T.H. Chan School of Public Health. “No
one is immune to this. Everyone can be affected.”
 Wildfire smoke from Canada choked the air on the East Coast this
summer. The AQI rose to 165 in Baltimore, Maryland on June 7, 2023, a
level considered unhealthy. Photograph: Courtesy Alison Hill 
Climate change has already created the conditions for more frequent
and significant wildfires this year, from Maui to Quebec.
Scientists and activists worry that the exceptional events rule can be
exploited to avoid the costly efforts needed to address this growing
crisis.
When the Clean Air Act was passed by a nearly unanimous Congress and
signed into law by President Richard Nixon in 1970, it focused on
pollution from soot-spewing smokestacks and freeways full of cars with
tailpipes.
The soot from Canadian fires that choked skies from Chicago to
Washington earlier this year was a sickly brown telltale for some of
the same key pollutants the Clean Air Act aimed to fight.
The EPA has proposed lowering the standard for fine particulates.
Soon, ozone standards could be tightened, too, a consensus
recommendation of the agency’s top scientific advisers.
Lobbyists for the fossil fuel industry have told the EPA the
exceptional events rule will be a key part of meeting ozone standards.
States themselves say any moves to tighten particulate or ozone limits
will be met with a greater reliance on the exceptional events rule.
“This is a big problem,” said Leonard of the Great Lakes
Environmental Law Center. “And you’re not only actively ignoring
it, you’re actively trying to get out of doing something about
it.”
_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. Emily Zentner is a data
reporter for The California Newsroom. Andrew Witherspoon is a data
reporter for the Guardian._