Anachronistic Pollution Policy: The Case of Wildfire Smoke Regulation
Kirsten H. Engel
University of Arizona - James E. Rogers College of Law
October 30, 2012
Ecology Law Quarterly, 2013 Forthcoming
Arizona Legal Studies Discussion Paper No. 12-26
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, perhaps the most effective tool to reduce the incidence and severity of unplanned wildfires is fire. In the form of prescribed, or controlled, burning and wildfires that are allowed to burn for their resource benefits, “planned wildfire” reduces the buildup of vegetation resulting from years of wildfire-suppression policy. At present, however, the number of acres burned annually falls far short of the number considered optimal for purposes of restoring natural ecosystems and reducing damages from unplanned wildfires. Air pollution law and policy is an important factor contributing to the under-provision 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 is an undervaluation of planned wildfire. Wildfire air pollution policy is also marred by governance structures that place air quality and resource agencies at odds with each other and which provide narrow local interests with methods of shutting down prescribed burning -- trumping 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 air quality compliance unless states can demonstrate a working program to encourage planned wildfire, a revised governance structure that incorporates the shared expertise of air pollution and resource agencies in planned burning decisions and a reduced role for state nuisance law.
Number of Pages in PDF File: 57
Keywords: wildfire, air pollution regulation, environmental law, economic analysis, prescribed burning, natural, anthropogenic
JEL Classification: K2, K32Accepted Paper Series
Date posted: August 18, 2012 ; Last revised: October 31, 2012
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