209 Wildfire Smoke and U.S. Law By Michael B. Gerrard* I. Introduction .................................................................................................. 210 II. Wildfires: Growth, Causes, and Impacts ............................................ 210 A. Growth and Causes of Wildfires ........................................................ 210 B. Impacts of Wildfire Smoke ................................................................... 216 III. Ever-changing Fire Suppression Policies .......................................... 228 IV. Prescribed Fire: The Principal Solution ............................................. 235 V. Legal Impediments to Prescribed Fire ............................................... 243 A. Regulation of Prescribed Fire ............................................................. 244 1. Clean Air Act .......................................................................................... 244 2. NEPA ......................................................................................................... 251 3. State Approvals .................................................................................... 257 B. Liability ........................................................................................................ 259 1. Emissions ................................................................................................ 259 2. Starting Intentional Fires ................................................................. 262 3. Employers............................................................................................... 267 4. Insurance ................................................................................................ 270 5. Smoke Across Borders ...................................................................... 273 C. Building near the Woods ...................................................................... 278 VI. Defending Against Smoke ........................................................................ 288 A. Warnings ..................................................................................................... 288 B. Reducing Residential Exposure ......................................................... 292 C. Cleaner Air Centers ................................................................................. 294 D. Schools ......................................................................................................... 294 E. Federal Assistance ................................................................................... 295 * Michael B. Gerrard is Andrew Sabin Professor of Professional Practice and founder and Fac- ulty Director of the Sabin Center for Climate Change Law at Columbia Law School, with a joint appointment to the faculty of the Columbia Climate School. He formerly chaired the faculty of the Columbia Earth Institute; the environmental sections of the American Bar Association and the New York State Bar Association; and the Executive Committee of the New York City Bar Association. He practiced environmental law full-time in New York City from 1979 through 2008, most recently as partner in charge of the New York office of Arnold & Porter. Lisa Dale and William Boyd provided very helpful comments on an earlier draft. 210 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 50:S VII. What the Law Can Do ................................................................................ 297 I. INTRODUCTION Many of the most wicked feedback effects of climate change relate to wildfire smoke. In some places the greenhouse gases poured into the atmosphere by wildfires exceed the reductions achieved by all ef- forts to fight climate change. At the same time, climate change is a major reason why wildfires are becoming more frequent and intense. Climate change and wildfires feed each other. However, environmen- tal law and climate policy have paid relatively little attention to wild- fires. The smoke from these fires—a major cause of illness and death, even thousands of miles from the blazes—is mostly unregulated. Ef- forts to impose liability on anyone for wildfires, except electric utili- ties, have gained little traction. Part Two of this article discusses the global growth of wildfires; past trends and future projections; and the climate, health, and other im- pacts of wildfire smoke. Part Three traces the flip-flopping evolution of U.S. policy on extinguishing wildfires—a policy that in many ways made the problem worse. Part Four shows that the principal way to reduce wildfires is prescribed fires—the planned, small-scale setting of fires to reduce the fuel that causes much larger fires and more smoke. Part Five describes the impediments to prescribed fire, such as the implementation of certain environmental laws, relevant liabil- ity regimes, and the pattern of building housing in or near wildlands, which makes prescribed burns more difficult. Part Six discusses ways to defend against smoke. Part Seven concludes with recommenda- tions for how the law can reduce wildfire smoke and its impacts. II. WILDFIRES: GROWTH, CAUSES, AND IMPACTS A. Growth and Causes of Wildfires In July 2021, smoke from wildfires in western Canada and the west- ern United States stretched across the continent and triggered health alerts from Toronto to Philadelphia.1 In June and July 2023, wildfires 1. Nadja Popovich & Josh Katz, See How Wildfire Smoke Spread Across America, N.Y. TIMES (July 21, 2021), https://www.nytimes.com/interactive/2021/07/21/climate/wildfire-smoke-map. html [On File with the Columbia Journal of Environmental Law]. See also Wei-Ting Hung et al., 2025] Wildfire Smoke and U.S. Law 211 in eastern Canada cast a pall over Chicago, New York, and as far south as Alabama,2 and even crossed the Atlantic Ocean and darkened skies over Portugal and Spain.3 New York briefly had the worst air quality of any major metropolitan area in the world—worse than even the fa- mously polluted New Delhi.4 A few months later, in October 2023, wildfires in the drought-ravaged Amazon caused the two million res- idents of Manaus, Brazil to experience the worst air quality in the world.5 These are not isolated incidents. In recent years wildfires have been increasing in number and intensity in many parts of the world, from Australia to the Arctic, and millions of people have been exposed to unhealthy levels of smoke.6 Wildfires have hit places that had been completely unaccustomed to them, such as western Oregon in 2020; Russian Siberia and the suburbs of Boulder, Colorado in 2021; and the horrific fire in Maui, Hawaii in August 2023.7 The impacts of transported wildfire smoke on surface air quality in New York State: A multi-year study using machine learning, 259 ATMOSPHERIC ENV’T 118513 (2021) (scientific study confirm- ing transport of wildfire smoke across long distances in North America). 2. Caitlin Kaiser, Canadian wildfire smoke puts around 70 million US residents under air quality alerts, CNN (July 17, 2023), https://www.cnn.com/2023/07/16/weather/canada-wildfires-us- air-quality-alerts-sunday/index.html [https://perma.cc/3NN3-SCSW]; Liam Stack & Ed Sha- nahan, Wildfire Smoke: Smoke From Canada Fires Stretches From Midwest to East Coast, N.Y. TIMES (June 30, 2023), https://www.nytimes.com/live/2023/06/29/nyregion/canada-wild- fires-air-quality-smoke [On File with the Columbia Journal of Environmental Law]. 3. Kathryn Hansen, Canadian Smoke Reaches Europe, NASA EARTH OBSERVATORY (June 26, 2023), https://earthobservatory.nasa.gov/images/151507/canadian-smoke-reaches-europe [https://perma.cc/7W5T-AK4P]. For more on long-distance transport of wildfire smoke, see Gary A. Morris et al., Alaskan and Canadian forest fires exacerbate ozone pollution over Houston, Texas, on 19 and 20 July 2004, 111 J. GEOPHYSICAL RSCH., no. D248S03 (2006); John Upton et al., Breathing Fire: Health Is A Casualty Of Climate-Fueled Blazes, KFF HEALTH NEWS (Nov. 9, 2017), https://kffhealthnews.org/news/breathing-fire-health-is-a-casualty-of-climate-fueled-blazes/ [https://perma.cc/VRU3-8SAC]. 4. Derek Van Dam & Rachel Ramirez, New York City’s air pollution among the world’s worst as Canada wildfire smoke shrouds Northeast, CNN (June 7, 2023), https://www.cnn.com/2023/ 06/06/us/new-york-air-pollution-canada-wildfires-climate/index.html [https://perma.cc/8V EK-BWKY]. 5. Crystal A. Kolden et al., Wildfires in 2023, 5 NATURE REVS. EARTH & ENV’T 238 (2024). 6. GABRIEL PETEK, LEGISLATIVE ANALYST’S OFF., LIVING UNDER SMOKY SKIES – UNDERSTANDING THE CHALLENGES POSED BY WILDFIRE SMOKE IN CALIFORNIA 4, 6–7 (2022). 7. Kristoffer Tigue, Wildfires Are Exploding in Unexpected Places Due to Climate Change. Is Ha- waii the Latest Example?, INSIDE CLIMATE NEWS (Aug. 11, 2023), https://insideclimatenews.org /news/11082023/wildfires-are-exploding-in-unexpected-places-due-to-climate-change-is-ha- waii-the-latest-example/ [https://perma.cc/FG2E-LTPN]; Christopher Flavelle & Henry Foun- tain, In Oregon, a New Climate Menace: Fires Raging Where They Don’t Usually Burn, N.Y. TIMES (Sept. 12, 2020), https://www.nytimes.com/2020/09/12/climate/oregon-wildfires.html [On File with the Columbia Journal of Environmental Law]. 212 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 50:S Approximately 1.6 million wildfires occurred in the U.S. between 2000 and 2023. A small fraction of these become catastrophic, and a small percentage of fires accounts for the vast majority of acres burned (and, accordingly, smoke). About 1% of wildfires become rag- ing, destructive fires, which experts call conflagrations.8 Wildfires are getting worse all over the world.9 Three scientists wrote in 2018, “[t]he widespread fires this year have magnified con- cerns that we are locked in a worldwide pattern of conflagration that is both persistent and catastrophic.”10 The frequency and duration of large fires are increasing, and wildfire seasons are getting longer—as many as 20 days longer per decade over the last four decades in some parts of the U.S.11 The area burned annually by large fires increased by more than 1,500% in the forests of the western U.S. from 1984 to 2017.12 Fires are also intensifying in the southeast U.S.13 and are be- coming increasingly common in the northeast.14 The fires strike not only forests; recent years have seen increasing fires in grasslands and shrublands, with resulting smoke and destruction.15 8. ANNE A. RIDDLE, CONG. RSCH. SERV., IF10244, WILDFIRE STATISTICS 1 (2023). 9. Calum X. Cunningham et al., Increasing frequency and intensity of the most extreme wildfires on Earth, NATURE ECOLOGY & EVOLUTION (June 4, 2024), https://www.wri.org/insights/global- trends-forest-fires [On File with the Columbia Journal of Environmental Law]; James MacCarthy et al., The Latest Data Confirms: Forest Fires Are Getting Worse, WORLD RES. INST. (Aug. 29, 2023), https://www.wri.org/insights/global-trends-forest-fires [https://perma.cc/HJ7B-KARM]. 10. Don J. Melnick et al., The Earth Ablaze, N.Y. TIMES (Aug. 8, 2018), https://www.ny- times.com/2018/08/08/opinion/wildfires-california-climate-change.html [On File with the Co- lumbia Journal of Environmental Law]. 11. Crystal D. McClure & Daniel A. Jaffe, US particulate matter air quality improves except in wildfire-prone areas, 115 PROC. NAT’L ACAD. SCIS. 7901, 7902–05 (2018); U.S. DEP’T OF AGRIC., TOWARD SHARED STEWARDSHIP ACROSS LANDSCAPES: AN OUTCOME-BASED INVESTMENT STRATEGY 5 (2018); Philip E. Dennison et al., Large wildfire trends in the western United States, 1984-2011, 41 GEOPHYS. RSCH. LETTERS 2928 (2014). 12. Jennifer K. Balch et al., Switching on the Big Burn of 2017, 1 FIRE 17 (2018); ROSS GORTE, THE RISING COST OF WILDFIRE PROTECTION (2013). 13. Blake Hudson, Fighting Fire with Fire? Adjusting Regulatory Regimes and Forest Product Markets to Mitigate Southern United States Wildfire Risk, 33 J. ENV’T L. & LITIG. 33 (2018). 14. Hilary Howard, Wildfire Risk Only Growing For Northeast, N.Y. TIMES (Nov. 21, 2024), https://www.nytimes.com/2024/11/20/nyregion/new-york-wildfires-drought.html [On File with the Columbia Journal of Environmental law]; M.R. O’Connor, The Northeast is Becoming Fire Country, NEW YORKER (Nov. 20, 2024), https://www.newyorker.com/news/the-lede/the-north- east-is-becoming-fire-country [https://perma.cc/229A-DK9Z]. 15. Volker C. Radeloff et al., Rising wildfire risk to houses in the United States, especially in grass- lands and shrublands, 382 SCIENCE 702 (2023); Heath D. Starns et al., Smoke in the Great Plains, USA: an increasing phenomenon with potential policy and health implications, 16 FIRE ECOLOGY 12 (2020). 2025] Wildfire Smoke and U.S. Law 213 Several factors are at work. The largest is climate change.16 The magnitude of future greenhouse gas emissions and, therefore, global warming has been determined to have a major impact on the likely extent of future fires.17 We are seeing more “fire weather”—condi- tions conducive to the ignition and spread of wildfires. Warming can lead to “enhanced fuel aridity”—dryer trees and other vegetation. A 2022 review article found, “[o]verall, climate change is exerting a per- vasive upwards pressure on fire globally by increasing the frequency and intensity of fire weather, and this upwards pressure will escalate with each increment of global warming.”18 Likewise, a 2022 report from the UN Environment Programme concluded that “[t]he heating of the planet is turning landscapes into tinderboxes, while more ex- treme weather means stronger, hotter, drier winds to fan the flames.”19 This UN report found that the risk of cataclysmic wildfires would increase as much as 57% by the end of the century, and that “[e]ven with the most ambitious efforts to curb greenhouse gas emis- sions, the planet will still experience a dramatic increase in the fre- quency of extreme fire conditions.”20 The U.S. National Climate As- sessment found that “the area burned by wildfire across the western United States from 1984 to 2015 was twice what would have burned had climate change not occurred.”21 Climate change increased the likelihood and intensity of the fires in eastern Canada that caused un- healthy smoke conditions over New York and other U.S. cities in the 16. Tzeidle N. Wasserman & Stephanie E. Mueller, Climate influences on future fire severity: a synthesis of climate-fire interactions and impacts on fire regimes, high-severity fire, and forests in the western United States, 19 FIRE ECOLOGY 43 (2023); Matthew W. Jones et al., State of Wildfires 2023-2024, 16 EARTH SYS. SCI. DATA 3601, 3646 (2024); Matthew W. Jones et al., Global rise in forest fire emissions linked to climate change in the extratropics, 386 SCIENCE, no. 6719 (2024); Piyush Jain et al., Drivers and Impacts of the Record-Breaking 2023 Wildfire Season in Canada, 15 NATURE COMMC’NS 6764 (2024); Chantelle Burton et al., Global burned area increasingly explained by climate change, 14 NATURE CLIMATE CHANGE 1186 (2024); Chae Yeon Park et al., Attributing human mortality from fire PM2.5 to climate change, 14 NATURE CLIMATE CHANGE 1193 (2024). 17. Salvatore R. Curasi et al., Global climate change below 2°C avoids large end century in- creases in burned area in Canada, 7 CLIMATE AND ATMOSPHERIC SCI. 228 (2024). 18. Matthew W. Jones et al., Global and Regional Trends and Drivers of Fire Under Climate Change, 60 REVS. OF GEOPHYSICS, no. e2020RG000726 (2022). See also Colin S. Gannon & Nik C. Steinberg, A global assessment of wildfire potential under climate change utilizing Keetch-Byram drought index and land cover classifications, 2021 ENV’T RSCH. COMMC’NS, no. 3, 2021; Glen Mac- Donald et al., Drivers of California’s changing wildfires: a state-of-the-knowledge synthesis, 32 INT’L J. WILDLAND FIRE 1039 (2023). 19. U.N. ENV’T PROGRAMME & GRID-ARENDAL, SPREADING LIKE WILDFIRE: THE RISING THREAT OF EXTRAORDINARY LANDSCAPE FIRES 6, 10, 41 (2022). 20. Id. See also Sally S.-C. Wang et al., Projection of Future Fire Emissions Over the Contiguous US Using Explainable Artificial Intelligence and CMIP6 Models, 128 J. GEOPHYSICAL RSCH.: ATMOSPHERES, no. e2023JD039154 (2023). 21. U.S. GLOBAL CHANGE RSCH. PROGRAM, FOURTH NATIONAL CLIMATE ASSESSMENT 1104 (2018). 214 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 50:S summer of 2023.22 A 2021 study concluded that “the air pollution events caused by wildfire smoke could become much more serious in the western USA by the middle of this century.”23 In California’s Sierra Nevada mountains, a 1°F increase in average summertime tempera- tures is associated with a 35% increase in acreage burned; in Mon- tana, a 1°F increase doubles the cost of defending homes from wildfire and causes a 125% increase in acreage burned.24 The temperate for- ests in the eastern U.S. are also seeing more wildfires.25 On top of the direct effect, warming leads to outbreaks of insects such as the mountain pine beetle and the southern pine beetle that devastate forests.26 In 2015, California Governor Jerry Brown issued an executive order declaring an “epidemic of tree mortality” caused by drought and beetles, and exempting controlled burns and forest thinning from certain environmental reviews.27 Another indirect ef- fect of warming is that it has reduced cloud shading over coastal southern California, increasing evaporation and further drying vege- tation.28 When there is a wet winter that leads to a lot of growth that dries out in a hot summer, and when the winds (such as southern Califor- nia’s Santa Ana wind) are especially strong, the fire season becomes 22. Climate change more than doubled the likelihood of extreme fire weather conditions in East- ern Canada, WORLD WEATHER ATTRIBUTION (Aug. 22, 2023), https://www.worldweatherattribu- tion.org/climate-change-more-than-doubled-the-likelihood-of-extreme-fire-weather-condi- tions-in-eastern-canada/ [https://perma.cc/ZVH3-REW8]; Weiwei Wang et al., Canadian forests are more conducive to high-severity fires in recent decades, 387 SCIENCE 91 (2025); Megan C. Kirchmeier-Young et al., Human driven climate change increased the likelihood of the 2023 record area burned in Canada, 7 NPJ CLIMATE & ATMOSPHERIC SCI. 316 (2024). 23. Yongpiang Liu et al., Projections of future wildfire emissions in western USA under climate change: contributions from changes in wildfire, fuel loading and fuel moisture, 31 INT’L J. OF WILDLAND FIRE 1 (2021). 24. HEADWATERS ECON., DO INSURANCE POLICIES AND RATES INFLUENCE HOME DEVELOPMENT ON FIRE- PRONE LANDS? (2016); P.H. Gude et al., Evidence for the Effect of Homes on Wildfire Suppression Costs, 22 INT’L J. OF WILDLAND FIRE 537 (2013). See also Patrick T. Brown et al., Climate warming increases extreme daily wildfire growth risk in California, 621 NATURE 760 (2023). 25. Victoria M. Donovan et al., Increasing Large Wildfire in the Eastern U.S., 50 GEOPHYSICAL RSCH. LETTERS, no. e2023GL107051 (2023); Michaella A. Ivey et al., Woody Cover Fuels Large Wildfire Risk in the Eastern U.S., 51 GEOPHYSICAL RSCH. LETTERS, no. e2024GL110586 (2024). 26. W.A. Kurtz et al., Mountain pine beetle and forest carbon feedback to climate change, 452 NATURE 987 (2008); Corey Lesk et al., Threats to North America forests from southern pine beetle with warming winters, 7 NATURE CLIMATE CHANGE 713 (2017). 27. David Siders, Jerry Brown declares emergency for dying trees, SACRAMENTO BEE (Oct. 30, 2015), https://www.sacbee.com/news/politics-government/capitol-alert/article41962989.ht ml [On File with the Columbia Journal of Environmental Law]. 28. A. Park Williams et al., Effect of Reduced Summer Cloud Shading on Evaporative Demand and Wildfire in Coastal Southern California, 45 GEOPHYSICAL RSCH. LETTERS 5653 (2018). 2025] Wildfire Smoke and U.S. Law 215 even more treacherous.29 Models predict more frequent wet winters, lower snowpack, and drier summers and autumns in the years to come, adding up to “an ideal recipe for wildfire in much of the western U.S.”30 Those predictions came true in January 2025 when the most destructive fires in California history (in terms of the value of the property destroyed, not deaths) hit the Los Angeles area. Though de- tailed attribution studies will no doubt be performed, it appears that these Los Angeles fires resulted from “hydroclimate whiplash”31— two extremely wet winters, which facilitated vegetation growth, fol- lowed by a period of record heat, which dried out the vegetation, and then an extreme windstorm that, once a spark occurred, pushed the fires a long distance. A 2023 study for the insurance industry was ee- rily prescient in discussing how a combination of wet periods, very hot and dry periods, high winds, and ignitable buildings close to each other could create “built environment conflagrations.”32 Early indica- tions are that the forest management practices discussed later in this Article did not have much bearing on the Los Angeles fires. Most of the areas burned were not in or proximate to forests where pre- scribed burning might be appropriate; unusually high winds and the extreme dryness of the vegetation that had been made abundant by earlier wet seasons appear to be the principal factors.33 After large fires, hills newly denuded of vegetation sometimes wash away into deadly mudslides.34 As if that weren’t hellish enough, light- ning—the principal cause of natural fires—has been increasing over the forests of Canada and Alaska,35 and is expected to happen much 29. Nicholas J. Nauslar et al., The 2017 North Bay and Southern California Fires: A Case Study, 1 FIRE 18 (2018); Jennifer K. Balch et al., Switching on the Big Burn of 2017, 1 FIRE 17 (2018). 30. Balch et al., supra note 29, at 5. 31. Daniel L. Swain et al., Hydroclimate volatility on a warming Earth, 6 NATURE REVS. EARTH & ENV’T 35, 35 (2025). 32. IAN M. GIAMMANCO ET AL., INS. INST. FOR BUS. & HOME SAFETY, THE RETURN OF CONFLAGRATIONS IN OUR BUILT ENVIRONMENT (2023). 33. Gavin Madakumbura et al., Climate Change a Factor in Unprecedented LA Fires, UCLA (Jan. 13, 2025), https://sustainablela.ucla.edu/2025lawildfires [https://perma.cc/BBN3-8ZQL]; Cara Horowitz & Julia Stein, Did California Policies Make the LA Policies Worse?, LEGAL PLANET (Jan. 17, 2025), https://legal-planet.org/2025/01/17/did-california-policies-make-the-la-fires -worse/ [https://perma.cc/3DDT-C4QW]. 34. Who they were: The victims of the Montecito mudslides, L.A. TIMES (Jan. 17, 2018), https://www.latimes.com/local/california/la-me-montecito-mudslide-victims-stories- 20180112-story.html [https://perma.cc/9T2L-9MMX]. 35. Sander Veraverbeke, Lightning as a major driver of recent large fire years in North Ameri- can boreal forests, 7 NATURE CLIMATE CHANGE 529 (2017). 216 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 50:S more frequently around the world as greenhouse gas emissions in- crease.36 In sum, drought, extreme heat that dries vegetation, and insect out- breaks—all worsened by climate change–are increasing the number and intensity of wildfires. B. Impacts of Wildfire Smoke Obviously, wildfires can cause major loss of life and destruction of property. The two deadliest U.S. wildfires of the past century were the Maui fire of 2023, which killed about 100 people and destroyed the town of Lahaina;37 and the Camp Fire of 2018, which killed 85 peo- ple and destroyed most of the town of Paradise, California.38 How- ever, the focus of this Article is wildfire smoke. As shown below, it causes far more fatalities than the fires themselves. Wildfires release into the atmosphere large quantities of fine par- ticulate matter (PM2.5), an air pollutant that can penetrate deep into the lungs and is a major target of air pollution control regulations. While overall PM2.5 levels in the U.S. had been declining for years, in some parts of the country this decline has halted or reversed, in large part due to wildfire smoke.39 Wildfire has been estimated to account for up to 25% of PM2.5 emissions in recent years across the U.S., and up to half in some Western regions.40 Wildfires create what Jia Coco Liu and colleagues call “smoke waves”—two or more consecutive days with high levels of PM2.5. They project that, with anticipated cli- mate change, by mid-century more than 82 million people in the U.S. (especially in northern California, western Oregon, and the Great 36. Francisco J. Perez-Invernon et al., Variation of lightning-ignited wildfire patterns under cli- mate change, 14 NATURE COMMC’NS 739 (2023); Thomas A.J. Janssen et al., Extratropical forests increasingly at risk due to lightning fires, 16 NATURE GEOSCIENCE 1136 (2023). 37. Jacey Fortin & Adeel Hassan, Death Toll of Maui Wildfire Now at 102, N.Y. TIMES (Aug. 9, 2024), https://www.nytimes.com/article/maui-wildfire-victims.html [On File with the Colum- bia Journal of Environmental law]. 38. Remembering the Camp Fire, CAL. FIRE, https://www.fire.ca.gov/our-impact/remember- ing-the-camp-fire [https://perma.cc/K9C3-NYY3] (last visited Feb. 9, 2025). 39. Marshall Burke et al., The contribution of wildfire to PM2.5 trends in the USA, 622 NATURE 761 (2023); Marissa L. Childs et al., Daily Local-Level Estimates of Ambient Wildfire Smoke PM2.5 for the Contiguous US, 56 ENV’T SCI. & TECH. 13607 (2022); JULIA LANGER & JEN BRADY, CLIMATE CENT., AIR POLLUTION PROGRESS STILL UNDERMINED BY WESTERN WILDFIRES (2018). 40. Marshall Burke et al., The changing risk and burden of wildfire in the United States, 118 PROC. NAT’L ACAD. SCIS., no. e2011048118, at 1 (2021). 2025] Wildfire Smoke and U.S. Law 217 Plains) will experience a 57% increase in the frequency of smoke waves, and a 31% increase in their intensity.41 Because wildfire smoke contains so many chemical constituents, its PM2.5 seems to be even more unhealthy than PM2.5 from other sources.42 Wildfire smoke contains not only particulate matter and carbon dioxide but also carbon monoxide, nitrogen dioxide, ozone, polycyclic aromatic hydrocarbons (PAHs), and volatile organic com- pounds.43 It can carry even more nasty chemicals if the area burned includes, for example, former mines or chemical disposal sites,44 in- dustrial sites,45 or metal-rich soils.46 Even the plastics inside all homes generate an array of chemicals when burned.47 When wildfire smoke enters buildings, the PAHs can accumulate in indoor materi- als.48 Because large wildfires consume more than trees, their smoke 41. Jia Coco Liu, Particulate Air Pollution from Wildfires in the Western US under Climate Change, 138 CLIMATE CHANGE 655 (2016). 42. Rosana Aguilera et al., Wildfire smoke impacts respiratory health more than fine particles from other sources: observational evidence from Southern California, 12 NATURE COMMC’NS, no. 1493 (2021); Teresa C. Wegesser et al., California Wildfires in 2008: Coarse and Fine Particulate Matter Toxicity, 117 ENV’T HEALTH PERSPS. 893 (2009). 43. Xiaoxi Li et al., Airborne measurements of western U.S. wildfire emissions: Comparison with prescribed burning and air quality implications, 122 J. GEOPHYSICAL RSCH. ATMOSPHERES 6108 (2017); Katelyn O’Dell, Hazardous Air Pollutants in Fresh and Aged Western U.S. Wildfire Smoke and Implications for Long-Term Exposure, 54 ENV’T SCI. TECH. 11838 (2020); L.P. Naeher et al., Woodsmoke health effects: a review, 19 INHALATION TOXICOLOGY 67 (2007). 44. EDWARD STRUZIK, FIRESTORM: HOW WILDFIRE WILL SHAPE OUR FUTURE 141–62 (2017). 45. Eulalia Planas et al., Fires at the wildland-industrial interface. Is there an emerging prob- lem?, 141 FIRE SAFETY J. 103906 (2023). 46. Alandra Marie Lopez et al., Metal toxic threat in wildland fires determined by geology and fire severity, 14 NATURE COMMC’NS, no. 8007 (2023). 47. Zoe Schlanger, What happens when a plastic city burns, ATLANTIC (Jan. 15. 2015), https://www.theatlantic.com/science/archive/2025/01/los-angeles-fire-smoke-plastic- toxic/681318/ [https://perma.cc/HAJ8-H6GB]; Audrey Gray & Andrew Robinson, Smoke and Ash Made More Toxic by the Contents of Burning Homes Threaten Residents of LA and Beyond, INSIDE CLIMATE NEWS (Jan. 17, 2025), https://insideclimatenews.org/news/17012025/toxic- smoke-threaten-los-angeles-residents/ [https://perma.cc/RLQ8-MEKY]; Ariel Wittenberg, Cancer is the unseen danger in the Los Angeles fires, E&E NEWS (Jan. 13, 2025), https://www.ee- news.net/articles/cancer-is-the-unseen-danger-in-the-los-angeles-fires/ [https://perma.cc/P4 GV-FUN8]; Brendan Borrell, After Wildfires, L.A.’s Clear Skies Conceal ‘Toxic Soup,’ N.Y. TIMES (Mar. 12, 2025), https://www.nytimes.com/2025/03/12/well/los-angeles-fires-health.html [On File with the Columbia Journal of Environmental Law]. 48. Aurelie Laguerre & Elliott T. Gall, Polycyclic Aromatic Hydrocarbons (PAHs) in Wildfire Smoke Accumulate on Indoor Materials and Create Postsmoke Exposure Pathways, 58 ENV’T SCI. & TECH. 639 (2023). See also Colleen E. Reid et al., Physical Health Symptoms and Perceptions of Air Quality among Residents of Smoke-Damaged Homes from a Wildland Urban Interface Fire, 2 ACS ES&T AIR, no.1, 2024, at 13 (describing symptoms reported by residents returning to homes that had been exposed to wildfire smoke). 218 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 50:S is considerably more toxic than the smoke from prescribed burns.49 The Los Angeles fires of 2025 led to particular concerns about the tox- icity of the resulting smoke and ash because the flames consumed thousands of buildings containing lead pipes, stores of chemicals, ap- pliances, electric vehicles, and many other items whose combustion releases hazardous substances.50 Wildfire smoke is a killer. A 2024 study concluded that PM2.5 expo- sure from California wildfires from 2008 to 2018 caused more than 52,000 premature deaths.51 An earlier study found that wildfire smoke is responsible for about 33,000 excess deaths annually around the world, and about 3,200 in the U.S.52 A different U.S. study calcu- lated that, assuming business as usual for greenhouse gas emissions and the resultant warming, the annual U.S. mortality attributable to PM2.5 from wildfire smoke would increase from around 17,000 deaths in 2000 to 44,000 in 2100.53 Many of these deaths occur far from the 49. Xiaoxi Li et al., Airborne measurements of western U.S. wildfire emissions: Comparison with prescribed burning and air quality implications, 122 J. GEOPHYSICAL RSCH. ATMOSPHERES 6108 (2017). See also Yong Ho Kim et al., Toxicity of fresh and aged anthropogenic smoke particles emitted from different burning conditions, 892 SCI. TOTAL ENV’T 164778 (2023). 50. Hiroko Tabuchi & Mira Rojanasakul, Airborne Lead and Chlorine Levels Soared as L.A. Wild- fires Raged, N.Y. TIMES (Jan. 20, 2025), https://www.nytimes.com/2025/01/20/climate/los-an- geles-wildfires-lead-chlorine-air-quality.html [On File with the Columbia Journal of Environ- mental Law]; LA wildfires’ leftover ash might be toxic, experts warn, GREENWIRE (Jan. 26, 2025), https://subscriber.politicopro.com/article/eenews/2025/01/22/la-wildfires-leftover-ash- might-be-toxic-experts-warn-00199886 [On File with the Columbia Journal of Environmental Law]; Eliyahu Kamisher et al., Burning Teslas in LA Add to Toxic Mix Hindering Wildfire Cleanup, BLOOMBERG (Jan. 17, 2025), https://www.bloomberg.com/news/articles/2025-01-17/burning- teslas-add-to-toxic-mix-of-cocktails-delaying-la-return [On File with the Columbia Journal of Environmental Law]; David Wallace-Wells, After the L.A. Fires, a New Menace Lingers, N.Y. TIMES (Jan. 29, 2025), https://www.nytimes.com/2025/01/29/opinion/los-angeles-fires-air.html [On File with the Columbia Journal of Environmental Law]. 51. Rachel Connolly et al., Mortality attributable to PM2.5 from wildland fires in California from 2008 to 2018, 10 SCI. ADVANCES, no. 23 (2024). 52. Gongbo Chen et al., Mortality risk attributable to wildfire-related PM2.5 pollution: a global time series study in 749 locations, 5 LANCET PLANETARY HEALTH, no. e579 (2021). See also Rongbin Xu et al., Global population exposure to landscape fire air pollution from 2000 to 2019, 621 NATURE 521 (2023) (finding that during the period 2010–2019, 2.18 billion people were exposed to at least one day of substantial landscape fire-sourced air pollution per year, with each person in the world having, on average, 9.9 days of exposure per year); Kevin Cromar et al., Adverse Health Impacts of Outdoor Air Pollution, Including from Wildland Fires, in the United States: “Health of the Air,” 2018-2020, 21 ANNALS AM. THORACIC SOC’Y, no.1, 2024, at 76 (presenting estimates of U.S. mortality impacts from wildland fires ranging from 4,080 to 28,000 deaths, depending on as- sumptions). 53. B. Ford et al., Future Fire Impacts on Smoke Concentrations, Visibility, and Health in the Contiguous United States, 2 GEOHEALTH 229 (2018). See also Yiqun Ma et al., Long-term exposure to wildland fire smoke PM2.5 and mortality in the contiguous United States, 121 PROC. NAT’L ACAD. 2025] Wildfire Smoke and U.S. Law 219 actual fires, as the smoke travels long distances.54 High levels of PM2.5 from wildfires have also increased the death rate from another dis- ease that attacks the lungs, COVID-19, especially since the height of the pandemic in 2020 coincided with an extreme wildfire season.55 In 2020, safety rules and staff shortages associated with COVID-19 also reduced the use of prescribed burns,56 which, as shown below, are a major way to reduce wildfire impacts. Many causes of death and illness have been linked to wildfire smoke. These health effects include heart attacks,57 strokes,58 asthma attacks and other respiratory problems,59 cardiorespiratory SCIS., no e2403960121 (2004); Minghao Qiu et al., Mortality Burden From Wildfire Smoke Under Climate Change (Nat’l Bureau of Econ. Rsch, Working Paper No. 32307, 2024); Colleen E. Reid et al., Critical Review of Health Impacts of Wildfire Smoke Exposure, 124 ENV’T HEALTH PERSPS. 1334 (2016); Neal Fann et al., The health impacts and economic value of wildland fire episodes in the U.S.: 2008-2012, 610 SCI. TOTAL ENV’T 802 (2018). 54. Katelyn O’Dell, Estimated Mortality and Morbidity Attributable to Smoke Plumes in the United States: Not Just a Western US Problem, 5 GEOHEALTH, no. e2021GH000457 (2021); Rodanthi-Elisavet Mamouri et al., Wildfire smoke triggers cirrus formation: lidar observations over the eastern Mediterranean, 23 ATMOSPHERIC CHEMISTRY & PHYSICS 14097 (2023) (finding smoke from California wildfires formed clouds over Cyprus). 55. Xiaodan Zhou et al., Excess of COVID-19 cases and deaths due to fine particulate matter exposure during the 2020 wildfires in the United States, 7 SCI. ADVANCES, no. eabi878 (2021); Sarah B. Henderson. The COVID-19 Pandemic and Wildfire Smoke: Potentially Concomitant Disasters, 110 AM. J. PUB. HEALTH 1140 (2020). But see Sheena E. Martenies et al., The COVID-19-wildfire smoke paradox: Reduced risk of all-cause mortality due to wildfire smoke in Colorado during the first year of the COVID-19 pandemic, 225 ENV’T RSCH. 115591 (2023). 56. FOREST SERV. & U.S. DEP’T OF AGRIC., FUTURE OF AMERICA’S FOREST AND RANGELANDS: FOREST SERVICE 2020 RESOURCES PLANNING ACT ASSESSMENT 5 (2023). 57. Caitlin G. Jones et al., Out-of-Hospital Cardiac Arrests and Wildfire-Related Particulate Mat- ter During 2015-2017 California Wildfires, 9 J. AM. HEART ASS’N, no. e014125 (2020). 58. Zachary S. Wettstein et al., Cardiovascular and Cerebrovascular Emergency Department Visits Associated With Wildfire Smoke Exposure in California in 2015, 7 J. AM. HEART ASS’N, no. e007492 (2018). 59. Kai Chen et al., Canadian Wildfire Smoke and Asthma Syndrome Emergency Department Visits in New York City, 330 J. AM. MED. ASS’N 1385 (2023); Jeff Wen et al., Quantifying fire-specific smoke exposure and health impacts, 120 PROC. NAT’L ACAD. SCIS., no. e2309325120 (2023); RUBEN JUAREZ ET AL., UNIV. OF HAW. ECON. RSCH ORG., MAUI WILDFIRE EXPOSURE STUDY: COMMUNITY HEALTH, WELLBEING, AND RESILIENCE (2024); Cristin E. McArdle et al., Asthma-Associated Emergency De- partment Visits During the Canadian Wildfire Smoke Episodes – United States April-August 2023, 72 MORBIDITY & MORTALITY WKLY REP. 926 (2023); Jennifer D. Stowell et al., Associations of wild- fire smoke PM2.5 exposure with cardiorespiratory events in Colorado, 2011-2014, 133 ENV’T INT’L 105151 (2019); Stephanie DeFlorio-Barker, Cardiopulmonary Effects of Fine Particulate Matter Exposure among Older Adults, during Wildfire and Non-Wildfire Periods, in the United States 2008- 2010, 127 ENV’T HEALTH PERSPS., no. 037006-1 (2019); Terry L. Noah et al., The Effects of Wildfire Smoke on Asthma and Allergy, 23 CURRENT ALLERGY & ASTHMA REPS. 375 (2023); MARC CARMICHAEL & BEN CERIO, KOMODO HEALTH, IMPACT OF WILDFIRE SMOKE WAVES ON ASTHMA EMERGENCIES IN CHILDREN: INSIGHTS INTO THE PEDIATRIC SUBPOPULATIONS MOST VULNERABLE TO THE THREAT OF CLIMATE CHANGE (2024), https://knowledge.komodohealth.com/hubfs/_2024/Komodo_Health_ Asthma_and_Wildfires_Research_Brief_Aug_2024.pdf [https://perma.cc/FE42-5U7J]. 220 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 50:S hospitalizations,60 emergency room visits,61 some cancers,62 neuroin- flammation,63 preterm births,64 low birth weight,65 adverse preg- nancy outcomes,66 pregnancy loss,67 lowered fertility,68 various skin conditions,69 lower cognitive performance,70 worsened student learn- ing outcomes,71 higher risk of dementia,72 psychological effects that 60. Chen Chen et al., Exploring spatial heterogeneity in synergistic effects of compound climate hazards: Extreme heat and wildfire smoke on cardiorespiratory hospitalizations in California, 10 SCI. ADVANCES, no. eadj7264 (2024). 61. Jamie Ranse at al., Impact of fine particulate matter (PM2.5) smoke during the 2019/2020 Australian bushfire disaster on emergency department patient presentations, 6 J. CLIMATE CHANGE & HEALTH, no. 100113 (2022). 62. Jill Korsiak et al., Long-term exposure to wildfires and cancer incidence in Canada: a popu- lation-based observational cohort study, 6 LANCET PLANET HEALTH, no. e400-09 (2022). 63. David Scieszka et al., Neuroinflammatory and Neurometabolomic Consequences From In- haled Wildfire Smoke-Derived Particulate Matter in the Western United States, 186 TOXICOLOGICAL SCIS. 149 (2021). 64. Sam Heft-Neal, Association between wildfire smoke exposure during pregnancy and risk of preterm birth in California, 203 ENV’T RSCH. 111872 (2022); Anjali Haikerwal et al., Wildfire smoke exposure and respiratory health outcomes in young adults born extremely preterm or ex- tremely low birthweight, 197 ENV’T RSCH. 111159 (2021). 65. Weeberb J. Requia, Birth weight following pregnancy wildfire smoke exposure in more than 1.5 million newborns in Brazil: A nationwide case-control study, 11 LANCET REG’L HEALTH – AMS. 100229 (2022). 66. Mona Abdo et al., Impact of Wildfire Smoke on Adverse Pregnancy Outcomes in Colorado, 2007-2015, 16 INT’L J. ENV’T RSCH. & PUB. HEALTH, 3720 (2019). 67. Molly S. Kornfeld et al., Wildfire smoke exposure and pregnancy loss, 118 FERTILITY & STERILITY 626 (2022). 68. Sarah LaPointe et al., Air pollution exposure in vitrified oocyte donors and male recipient partners in relation to fertilization and embryo quality, 193 ENV’T INT’L 109147 (2024). 69. Kathyana P. Santiago Mangual et al., The Burden of Air Pollution on Skin Health: a Brief Report and Call to Action, 14 DERMATOLOLOGY & THERAPY 251 (2024); Raj P. Fadadu et al., Associ- ation of Wildfire Air Pollution and Health Care Use for Atopic Dermatitis and Itch, 157 J. AM. MED. ASS’N 658 (2021). 70. Stephanie E. Cleland et al., Short-Term Exposure to Wildfire Smoke and PM2.5 and Cognitive Performance in a Brain-Training Game: A Longitudinal Study of U.S Adults, 130 ENV’T HEALTH PERSPS. (2022); Ryan Israelson & Jing Kong, Hazy Outlook: Wildfire Smoke Exposure and Ana- lysts (Jan. 21, 2024), https://dx.doi.org/10.2139/ssrn.4702170 [On File with the Columbia Jour- nal of Environmental Law] 71. Jeff Wen & Marshall Burke, Lower test scores from wildfire smoke exposure, 5 NATURE SUSTAINABILITY 947 (2022). 72. Holly Elser et al, Wildfire Smoke Exposure and Incident Dementia, 82 J. AM. MED. ASS’N NEUROLOGY, no.1, 2024; Joan A. Casey & Holly Elser, Exploring Wildfire Smoke Exposure and Risk of Dementia in an Older Patient Population, NEUROLOGY LIVE (July 29, 2024), https://www.neu- rologylive.com/view/exploring-wildfire-smoke-exposure-risk-dementia-older-patient-popula- tion-joan-casey-holly-elser [https://perma.cc/LM9T-WGEG]; Boya Zhang et al., Comparison of Particulate Air Pollution From Different Emission Sources and Incident Dementia in the US, 157 J. AM. MED. ASS’N INTERNAL MED., no. 6, 2023. 2025] Wildfire Smoke and U.S. Law 221 harm the mental wellbeing of many in the population,73 suicide,74 the spread of infectious agents such as bioaerosols,75 and perturbation of stratospheric ozone.76 The health impacts are especially serious when high levels of PM2.5 and ground-level ozone coincide, which is happening increasingly often, in part because extreme heat contrib- utes to both wildfires and ozone levels.77 Climate change is an effect as well as a cause of wildfires. One study found that, globally, carbon emissions from forest fires increased by 60% between 2001 and 2023.78 Already, wildfire smoke has wiped out many of the gains made by California in fighting greenhouse gas emissions and conventional air pollutants.79 In just a few weeks, a major wildfire can emit more carbon dioxide than California’s climate change programs can save in a year.80 One analysis found that the 73. C. Howard et al., SOS: Summer of Smoke – a mixed-methods, community-based study inves- tigating the health effects of a prolonged, severe wildfire season on a subarctic population, 19 CAN. J. EMERGENCY MED. 599 (2017); Maria C. Mirabelli et al., Wildfire smoke and symptoms affecting mental health among adults in the U.S. State of Oregon, 164 PREVENTIVE MED. 107333 (2022); Sha- ron J. Riley, “The lost summer”: the emotional and spiritual toll of the smoke apocalypse, NARWHAL (Aug. 21, 2018), https://thenarwhal.ca/the-lost-summer-the-emotional-and-spiritual-toll-of- the-smoke-apocalypse/ [https://perma.cc/W4ZX-ZEEP]; David P. Eisenman & Lindsay P. Gal- way, The mental health and well-being effects of wildfire smoke: a scoping review, 22 BMC PUB. HEALTH, no. 2274 (2022). 74. David Molitor et al., Air pollution and suicide in rural and urban America: Evidence from wildfire smoke, 120 PROC. NAT’L ACAD. SCIS., no. e2221621120 (2023). 75. Leda N. Kobziar & George R. Thompson III, Wildfire smoke a potential infectious agent, 370 SCIENCE 1408 (2020). 76. V. Faye McNeill & Joel A. Thornton, How Wildfires Deplete Ozone in the Stratosphere, 615 NATURE 219 (2023); Peter Bernath et al., Wildfire Smoke Destroys Stratospheric Ozone, 375 SCIENCE 1292 (2022). 77. Dmitri A. Kalashnikov et al., Increasing Co-Occurrence of Fine Particulate Matter and Ground-Level Ozone Extremes in the Western United States, 8 SCI. ADVANCES, no. 1, 2022. 78. Matthew W. Jones et al., Global Rise in Forest Fire Emissions Linked to Climate Change in the Extratropics, 386 SCIENCE, no. 6719 (2024). See also Bo Zheng et al., Record-High CO2 Emis- sions from Boreal Fires in 2021, 379 SCIENCE 912 (2023). 79. Marc Carreras-Sospedra et al., Air Quality and Health Impacts of the 2020 Wildfires in Cal- ifornia, 20 FIRE ECOLOGY 6 (2024); Michael Jerrett et al., Up in Smoke: California’s Greenhouse Gas Reductions Could be Wiped Out by 2020 Wildfires, 310 ENV’T POLLUTION 119888 (2022); NEXT 10, 2019 CAL. GREEN INNOVATION INDEX 19 (2019), https://www.next10.org/sites/de- fault/files/2019-10/2019-california-green-innovation-index-final.pdf [https://perma.cc/ZW57-KGSW]. These calculations do not account for the CO2 that will be ab- sorbed if the burned areas are allowed to regrow, though that happens much more slowly than the release of carbon during a wildfire. See CHAD T. HANSON, SMOKESCREEN: DEBUNKING WILDFIRE MYTHS TO SAVE OUR FORESTS AND OUR CLIMATE (2021). 80. David R. Baker, Huge Wildfires can Wipe Out California’s Greenhouse Gas Gains, S.F. CHRON. (Nov. 22, 2017), https://www.sfchronicle.com/bayarea/article/Huge-wildfires-can-wipe-out- California-s-12376324.php [On File with the Columbia Journal of Environmental Law]. See also Crystal D. McClure & Daniel A. Jaffe, US Particulate Matter Air Quality Improves Except in Wildfire- 222 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 50:S 2018 wildfire season in California emitted as much carbon dioxide as that generated by the production of all the electricity the state used in a year.81 Another analysis concluded that four California wildfires emitted the carbon dioxide equivalent of one-half of California’s cars for a year.82 California’s climate law, A.B. 32, has a program that al- lows GHG emitters to “offset” some of their emissions by paying to preserve forests, but a 2023 analysis found that wildfires almost en- tirely undo the benefits of this program.83 Canada’s severe wildfire season in 2023 produced nearly four times the CO2 emissions of the global aviation sector, and 25% more than all tropical deforestation that year.84 While forests have long been seen as net carbon sinks, absorbing large quantities of carbon dioxide from the atmosphere, one study found that beginning in 2001, logging, wildfire, and decay in Canadian forests have been emitting more CO2 than the forests have Prone Areas, 115 PROC. NAT’L ACAD. SCIS. 7901 (2018); Bob Berwyn, How Wildfires Can Affect Cli- mate Change (and Vice Versa), INSIDE CLIMATE NEWS (Aug. 23, 2018), https://insideclimate- news.org/news/23082018/extreme-wildfires-climate-change-global-warming-air-pollution- fire-management-black-carbon-co2/ [https://perma.cc/TXW5-8QEG]; JULIA LANGER & JEN BRADY, AIR POLLUTION PROGRESS STILL UNDERMINED BY WESTERN WILDFIRE (2018). 81. New Analysis Shows 2018 California Wildfires Emitted as Much Carbon Dioxide as an Entire Year’s Worth of Electricity, U.S. DEP’T OF THE INTERIOR (Nov. 30, 3018), https://www.doi.gov/ pressreleases/new-analysis-shows-2018-california-wildfires-emitted-much-carbon-dioxide- entire-years [https://perma.cc/9GPE-GB42]. 82. THOMAS M. BONNICKSEN, FOREST FOUND., GREENHOUSE GAS EMISSIONS FROM FOUR CALIFORNIA WILDFIRES: OPPORTUNITIES TO PREVENT AND REVERSE ENVIRONMENTAL AND CLIMATE IMPACTS, FCEM REP. NO. 2 (2008). Some of these kinds of estimates are in dispute. Carl Smith, Are Wildfires Offsetting Progress in Carbon Reduction?, GOVERNING (Oct. 24, 2022), https://www.govern- ing.com/next/are-wildfires-offsetting-progress-in-carbon-reduction [https://perma.cc/853H- UR9N]. 83. Grayson Badgley, Increasingly Active Wildfire Seasons Threaten the Sustainability of Forest- Backed Carbon Offset Programs, 30 GLOB. CHANGE BIOLOGY, no. e17599 (2024); Grayson Badgley et al., California’s Forest Carbon Offsets Buffer Pool is Severely Undercapitalized, 5 FRONTIERS FORESTS & GLOBAL CHANGE, no. 930426 (2022); Camilla Hodgson, Wildfires Destroy Almost All For- est Carbon Offsets in 100-Year Reserve, Study Says, FIN. TIMES (Aug. 5, 2022), https://www. ft.com/content/d54d5526-6f56-4c01-8207-7fa7e532fa09 [https://perma.cc/4UWP-ZHQE]. 84. JAMES MACCARTHY ET AL., CANADA’S RECORD-BREAKING 2023 WILDFIRES RELEASED NEARLY 4 TIMES MORE CARBON THAN GLOBAL AVIATION (2024). See also Brendan Byrne et al., Carbon Emis- sions From the 2023 Canadian Wildfires, 633 NATURE 835 (2024). 2025] Wildfire Smoke and U.S. Law 223 been absorbing.85 U.S. forests remain a net carbon sink, but that may change by mid-century.86 What is the magnitude of greenhouse gas emissions from wild- fires?87 The U.N. Framework Convention on Climate Change, which the U.S. Senate ratified in 1992, requires member states to report their greenhouse gas emissions.88 The U.S. satisfies this requirement through a report periodically issued by the Environmental Protection Agency (EPA). The latest version of this report indicates that forest fires released 129.2 million metric tons (MMT) of CO2 in the cotermi- nous 48 states in 2022.89 Roughly 15% of this was estimated to come from prescribed fires.90 This is very small compared to U.S. emissions from fossil fuel consumption in 2022 (4,699 MMT).91 (There is con- troversy, however, concerning the methodology for deriving the for- est fire estimates.92) The 129.2 MMT of CO2 emissions from wildfires 85. Barry Saxifrage, Our Forests Have Reached a Tipping Point, CAN.’S NAT’L OBSERVER (Aug. 21, 2023), https://www.nationalobserver.com/2023/08/21/analysis/our-forests-have-reached- tipping-point [https://perma.cc/K6MQ-3MUZ]. Similarly, Bailu Zhao et al., North American Bo- real Forests Are a Large Carbon Source Due to Wildfires From 1986 to 2016, 11 SCI. REPS. 7723 (2021). See also David Wallace-Wells, Forests Are No Longer Our Climate Friends, N.Y. TIMES (Sept. 6, 2023), https://www.nytimes.com/2023/09/06/opinion/columnists/forest-fires-cli- mate-change.html [On File with the Columbia Journal of Environmental Law]; Leyland Cecco, Wildfires Turn Canada’s Vast Forests from Carbon Sink into Super-Emitter, GUARDIAN (Sept. 22, 2023), https://www.theguardian.com/world/2023/sep/22/canada-wildfires-forests-carbon- emissions [https://perma.cc/2L58-45XH]. 86. U.S. FOREST SERV., FUTURE OF AMERICA’S FORESTS AND RANGELANDS: FOREST SERVICE 2020 RESOURCES PLANNING ACT ASSESSMENT 6-29 to 6-30 (2023), https://www.fs.usda.gov/sites/de- fault/files/fs_media/fs_document/2020-RPA-Assessment.pdf [On File with the Columbia Jour- nal of Environmental Law]; Minho Kim, Forests Are Losing Their Ability to Hold Carbon, SCI. AM. (July 26, 2023), https://www.scientificamerican.com/article/forests-are-losing-their-ability- to-hold-carbon/ [https://perma.cc/JG9C-HAS7]. 87. See N.L. Harris et al., Attribution of Net Carbon Change by Disturbance Type Across Forest Lands of the Coterminous United States, 11 CARBON BALANCE & MGMT., no. 24, 2016 (presenting calculations estimating carbon emissions from disturbances of U.S. forests, not limited to wild- fires, and offsetting carbon absorption from regrowth). 88. United Nations Framework Convention on Climate Change art. 4 ¶ 1(a), May 9, 1992, S. Treaty Doc No. 102-38, 1771 U.N.T.S. 107. 89. ENV’T PROT. AGENCY, INVENTORY OF U.S. GREENHOUSE GAS EMISSIONS AND SINKS, 1990-2022, at 6–32 (2024), https://www.epa.gov/system/files/documents/2024-04/us-ghg-inventory-2024 -main-text_04-18-2024.pdf [https://perma.cc/77AZ-BEAA]. 90. Id. at A-444. 91. Id. at ES-9. (figure ES-5). 92. The methodology for deriving the forest fire estimates is described in ENV’T PROT. AGENCY, supra note 89, at A-423 to A-424. It is based in part on IPCC guidelines. IPCC, 2006 IPCC GUIDELINES FOR NATIONAL GREENHOUSE GAS INVENTORIES, VOL. 4, AGRICULTURE, FORESTRY AND OTHER LAND USE, at 4.21, https://www.ipcc-nggip.iges.or.jp/public/2006gl/vol4.html [https://perma. cc/5QD3-PDSW]. The controversy over the validity of these guidelines is discussed in Rosa Fur- neaux, California’s Battle Against Climate Change Is Going Up in Smoke, MOTHER JONES (Dec. 11, 224 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 50:S figure is not well known; it appears on page 444 of a 595-page volume of appendices, and it is not included in the nationwide GHG inventory totals. As Leehi Yona has written, “[b]ecause wildfire GHG emissions are unaccounted for, reducing them is not rewarded as climate miti- gation, leading to adverse policy motivations.”93 On a global basis, one study reports that wildfire carbon emissions were 9,248 million metric tons in 2023.94 The same year, global car- bon dioxide emissions from fossil fuel combustion were 36,800 mil- lion metric tons.95 It has been reported that an average wildfire season also contrib- utes two-thirds of California’s emissions of black carbon. This is a kind of particle—much larger than PM2.5—that, while not a green- house gas, adds significantly to global warming when present in the lower atmosphere.96 However, black carbon can have a cooling effect when it is in the stratosphere, and some wildfire smoke travels that far up. One study concluded that the combination of black carbon in the stratosphere and particles from volcanos had such a cooling effect “that the trend of the global mean surface temperature [between 2014 2018), https://www.motherjones.com/environment/2018/12/californias-battle-against-clim ate-change-is-going-up-in-smoke/ [On File with the Columbia Journal of Environmental Law]; see also Kevin R. Welch et al., Predicting Conifer Establishment Post Wildfire in Mixed Conifer For- ests of the North American Mediterranean-Climate Zone, 7 ECOSPHERE, no. e01609 (2016). The National Academies of Science have launched a project to improve measurements of the GHG emissions from wildfires. NAT’L ACAD. OF SCIS., GREENHOUSE GAS EMISSIONS FROM WILDLAND FIRES: TOWARD IMPROVED MONITORING, MODELING, AND MANAGEMENT (2023), https://www.nationalacad- emies.org/our-work/greenhouse-gas-emissions-from-wildland-fires-toward-improved-moni- toring-modeling-and-management-a-workshop [https://perma.cc/F5ZU-RFJ9]. Some coun- tries, including Canada, exclude wildfires from their GHG reporting to the UN on the theory that burned forests will grow back and reabsorb the carbon lost in fires, though it takes many years for that to happen. James MacCarthy et al., Extreme Wildfires in Canada and Their Contribution to Global Loss in Tree Cover and Carbon Emissions in 2023, 30 GLOBAL CHANGE BIOLOGY, no. e17392 (2024); MATTHEW J. BRAMLEY, CANADA’S APPROACH TO FOREST CARBON QUANTIFICATION AND ACCOUNTING: KEY CONCERNS (2021). 93. Leehi Yona, Emissions Omissions: Greenhouse Gas Accounting Gaps, 49 HARV. ENV'T L. REV. (forthcoming 2025). 94. Crystal A. Kolden et al., Wildfires in 2023, 5 NATURE REVS. EARTH & ENV’T 238 (2024); e-mail from Matthew Jones, co-author of Wildfires in 2023 (Aug. 28, 2014) (clarifying units of measure- ment) [On File with the Columbia Journal of Environmental Law]. 95. GLOBAL CARBON PROJECT, FOSSIL CO2 EMISSIONS AT RECORD HIGH IN 2023 (2023), https://glob- alcarbonbudget.org/fossil-co2-emissions-at-record-high-in-2023/ [https://perma.cc/8EMP-E AK5]. 96. FOREST CLIMATE ACTION TEAM, CALIFORNIA FOREST CARBON PLAN: MANAGING THE FOREST LANDSCAPES IN A CHANGING CLIMATE 23 (2018). See also Rajan K. Chakrabarty et al., Shortwave Absorption by Wildfire Smoke Dominated by Dark Brown Carbon, 16 NATURE GEOSCIENCE 683 (2023). 2025] Wildfire Smoke and U.S. Law 225 and 2022] would have been 24% larger without the stratospheric in- jections.”97 Like so many environmental hazards, the dangers of wildfires and its smoke are not evenly distributed.98 One study found that census tracts of communities that were majority Black, Hispanic, or Native American experience about 50% greater vulnerability to wildfire compared to other census tracts.99 Another study, looking at data from 2004 to 2009 in the western U.S., found that the risk of hospital admission from respiratory problems from wildfire smoke was much higher for Black people than White people (21.7% vs. 6.9%) and for women than for men (10.4% vs. 3.7%).100 Increases in the number of days of heavy smoke have been especially large “in communities char- acterized by racial or ethnic minority status, limited English profi- ciency, lower educational attainment, and crowded housing condi- tions.”101 People who must work outdoors, such as farmworkers, are 97. Pengfei Yu et al., Radiative Forcing From the 2014-2022 Volcanic and Wildfire Injections, 50 GEOPHYSICAL RSCH. LETTERS, no. e2023GL103791, at 1 (2023). It is unclear the extent to which the cooling effect of black carbon from wildfires offsets the warming effect of GHGs from wild- fires. However, black carbon stays in the atmosphere for only a few days. Marianne T. Lund et al, Short Black Carbon Lifetime Inferred from a Global Set of Aircraft Observations, 1 NPJ CLIMATE & ATMOSPHERIC SCI., no. 31 (2018). Carbon dioxide in the atmosphere stays there for 300 to 1,000 years. ALAN BUIS, THE ATMOSPHERE: GETTING A HANDLE ON CARBON DIOXIDE (2019), https://sci- ence.nasa.gov/earth/climate-change/greenhouse-gases/the-atmosphere-getting-a-handle-on- carbon-dioxide/ [https://perma.cc/R83C-UEQ5]. 98. Will Sharffenberger, Environmental Justice Issues Surrounding California Wildfires, 45 ENVIRONS ENV’T L. & POL’Y J. 261 (2022); See, U.S. GLOBAL CHANGE RSCH. PROGRAM, supra note 21, at 14-11 to 14-13. 99. Ian P. Davies et al., The Unequal Vulnerability of Communities of Color to Wildfire, 13 PLOS ONE, no. e0205825 (2018). See also Caitlyn Reilley et al., Socially Vulnerable US Pacific Northwest Communities Are More Likely to Experience Wildfires, 19 ENV’T RSCH. LETTERS, no. 094053 (2024); Ruwan Thilakaratne et al., Wildfires and the Changing Landscape of Air Pollution-related Health Burden in California, 207 AM. J. RESPIRATORY & CRITICAL CARE MED. 887 (2022); Shahir Masri et al., Disproportionate Impacts of Wildfires among Elderly and Low-Income Communities in California from 2000-2020, 18 INT’L J. ENV’T RSCH. & PUB. HEALTH 3921 (2021) (finding that census tracts in California that experienced wildfires from 2000 to 2020 had lower proportions of minority groups on average but higher Native American populations); Sharon A. Jones et al., Wildfire Smoke, Environmental Justice, and Young Children in Urban Pacific Northwest Communities, 50 URBAN CLIMATE 101581 (2023); Marissa L. Childs et al., Daily Local-Level Estimates of Ambient Wildfire Smoke PM2.5 for the Contiguous US, 56 ENV’T SCI. & TECH. 13607 (2022) (finding areas with predominantly Hispanic populations especially exposed to wildfire smoke); Sadia Afrin & Fernando Garcia-Menendez, Potential Impacts of Prescribed Fire Smoke on Public Health and So- cially Vulnerable Population in a Southeastern U.S. State, 794 SCI. DIRECT 148712 (2021); Amber L. Kramer et al., Environmental Justice Analysis of Wildfire-Related PM2.5 Exposure Using Low- Cost Sensors in California, 856 SCI. TOTAL ENV’T 159218 (2023). 100. Jia Coco Liu, Who Among the Elderly Is Most Vulnerable to Exposure to and Health Risks of Fine Particulate Matter From Wildfire Smoke?, 186 AM. J. EPIDEMIOLOGY 730 (2017). 101. Jason Vargo et al., Social Vulnerability in US Communities Affected by Wildfire Smoke, 2011 to 2021, 113 AM. J. PUB. HEALTH 705 (2023). 226 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 50:S also especially exposed to wildfire smoke,102 which is often com- pounded by extreme heat;103 these people are disproportionately La- tino and tend to have low wages and poor housing and health care.104 “Children under five are especially vulnerable to wildfire smoke inha- lation as their organs are still developing and they breathe more air proportionally than adults,” and children in low-income households are subject to greater smoke exposure because they are less likely than more affluent children to spend their time in homes and day care centers with air conditioning that filters out smoke.105 Wildfire smoke has many non-health impacts. It impairs visi- bility, which not only obscures scenic vistas but can also create haz- ardous driving conditions,106 an especially serious matter when an area is being evacuated because of fire, and firefighting personnel are trying to enter.107 Smoke disrupts many recreational activities, such as camping.108 It also causes the cancellation of many airplane flights109 and can create maintenance problems for aircraft that fly 102. Pranshu Verma et al., Hazardous Air Quality from Wildfire Smoke Takes a Toll on Outdoor Workers, WASH. POST (June 8, 2023), https://www.washingtonpost.com/climate-environ- ment/2023/06/08/workers-outside-hazardous-air-quality-wildfire-smoke/ [On File with the Columbia Journal of Environmental Law]. 103. KRISTINA DAHL & RACHEL LICKER, TOO HOT TO WORK: ASSESSING THE THREATS CLIMATE CHANGE POSES TO OUTDOOR WORKERS (2021), https://www.ucsusa.org/sites/default/files/2021-09/Too- Hot-to-Work_9-7.pdf [https://perma.cc/R54G-LL35]. 104. Mary Prunicki, Inequitable Health Impacts from Wildfire Smoke Increased by Danger Sea- son, EQUATION (Sept. 15, 2022), https://blog.ucs.org/science-blogger/inequitable-health-im- pacts-from-wildfire-smoke-increased-by-danger-season/ [https://perma.cc/SZ4L-WURU]; Which Populations Experience Greater Risks of Adverse Health Effects Resulting from Wildfire Smoke Exposure?, ENV’T PROT. AGENCY, https://www.epa.gov/wildfire-smoke-course/which- populations-experience-greater-risks-adverse-health-effects-resulting [https://perma.cc/M6JF-5364] (last updated Jan. 30, 2025). 105. Jones et al., supra note 99. 106. Stephen McCullers, A Dangerous Servant and a Fearful Master: Why Florida’s Prescribed Fire Statute should be Amended, 65 FLA. L. REV. 587, 590–91 (2014) (describing traffic incident with multiple fatalities resulting from escaped prescribed fire and unusual weather conditions); Ferrara v. McCarter, 539 So. 2d 1247 (La. Ct. App. 1989) (finding that visibility impairment from wildfire contributed to traffic accident). 107. Paolo Intini et al., Modelling the Impact of Wildfire Smoke on Driving Speed, 80 INT’L J. DISASTER RISK REDUCTION 103211 (2022); GARY CURCIO ET AL., NAT’L WILDFIRE COORDINATING GRP., SMOKE AND ROADWAY SAFETY GUIDE (2020); Niklas Wetterberg et al., Individual Driving Behavior in Wildfire Smoke, 57 FIRE TECH. 1041 (2020). See also Jeva Lange, Wildfire Traffic Jams Are Deadly. Can Anything Be done?, HEATMAP DAILY (Aug. 31, 2023), https://mailchi.mp/heatmap/re- publicanferc1-6666271?e=6f4240b7b1 [https://perma.cc/UQS5-QB7C]. 108. Jacob Gellman et al., Wildfire, Smoke, and Outdoor Recreation in the Western United States (Res. for the Future, Working Paper 21-22, 2021). 109. David Shepardson, Wildfire Smoke from Canada Disrupts New York, Philadelphia Flights, REUTERS (June 8, 2023), https://www.reuters.com/business/aerospace-defense/wildfire-smo ke-canada-disrupts-new-york-flights-2023-06-07/ [On File with the Columbia Journal of Envi- ronmental Law]. https://perma.cc/UQS5-QB7C 2025] Wildfire Smoke and U.S. Law 227 through it.110 Smoke also reduces the amount of power generated by solar panels.111 Wildfire smoke has economic impacts. It has been found to be as- sociated with higher levels of household financial distress,112 lower business for local establishments,113 and lower rent prices.114 One study found that wildfire smoke reduced U.S. workers’ income by nearly 2% of U.S. annual labor income ($125 billion in 2018 dollars) per year on average.115 One example of the negative economic impact of wildfire smoke is that in 2024 the Oregon wine industry sued the electric utility PacifiCorp for not turning off the power during a wind- storm that, the suit alleges, contributed to fires whose smoke and soot damaged their grapes and reduced their harvests.116 110. Richard Scarbrough, Aviation Maintenance in a Time of Wildfires, FLYING (June 27, 2023), https://www.flyingmag.com/aviation-maintenance-in-a-time-of-wildfires/ [https://perma.cc/ SWJ6-N3ZA]. 111. Kimberley A. Corwin et al., Solar Energy Resource Availability Under Extreme and Histor- ical Wildfire Smoke Conditions, 16 NATURE COMMC’NS, no. 245 (2025); Kelsey Misbrener, Study Finds Wildfire Smoke Can Reduce Solar Panel Output by Nearly 50%, SOLAR POWER WORLD (Aug. 22, 2023), https://www.solarpowerworldonline.com/2023/08/study-finds-wildfire-smoke- can-reduce-solar-panel-output-nearly-50-percent/ [https://perma.cc/2FH2-AVKZ]; Samuel D. Gilletly et al., Evaluating the Impact of Wildfire Smoke on Solar Photovoltaic Production, 348 APPLIED ENERGY 121303 (2023); A. J. Ali, Development of a Quantification Method for the Impact of Wildfire Smoke on Photovoltaic Systems, 2023 IEEE/IAS 59TH INDUS. AND COM. POWER SYS. TECH. CONF. (I&CPS), 1, 1–10 (2025); Gavin Maguire, California Wildfires Dim Solar Generation During Power Demand Peak, REUTERS (July 31, 2024), https://www.reuters.com/markets/commodi- ties/california-wildfires-dim-solar-generation-during-power-demand-peak-2024-07-31/ [On File with the Columbia Journal of Environmental Law]. 112. Xudong An et al., Extreme Wildfires, Distant Air Pollution, and Household Financial Health (Fed. Rsrv. Bank of Phila., Working Paper No. 24-1, 2024). 113. Jawad M. Addoum et al., Does Wildfire Smoke Choke Local Business? (Mar. 12, 2024) (unpublished manuscript) [On File with the Columbia Journal of Environmental Law]. 114. Luis A. Lopez & Nitzan Tzur-Ilan, Air Pollution and Rent Prices: Evidence from Wildfire Smoke (Dec. 11, 2024) (unpublished manuscript) [On File with the Columbia Journal of Envi- ronmental Law]. 115. MARK BORGSCHULTE ET AL., STANFORD INST. FOR ECON. POL’Y RSCH., WILDFIRES REVEAL THE LARGE TOLL OF AIR POLLUTION ON LABOR MARKET OUTCOMES 3 (2022), https://siepr.stan- ford.edu/publications/policy-brief/wildfires-reveal-large-toll-air-pollution-labor-market-out- comes [https://perma.cc/X5PC-H4Q3]. 116. Claire Rush, Oregon wineries, vineyards seek $100M from PacifiCorp for wildfire smoke damage to grapes, BULLETIN (May 28, 2024), https://www.bendbulletin.com/localstate/state /oregon-wineries-vineyards-seek-100m-from-pacificorp-for-wildfire-smoke-damage-to-gra pes/article_54cba2d8-93dc-552e-add5-8d7c70357f02.html [https://perma.cc/QC5A-8K8Q]. See also Sean P. Sullivan, The Complex Science and Evolving Toll of Smoke Taint, WINE ENTHUSIAST (May 8, 2023), https://www.wineenthusiast.com/culture/wine/wine-science-smoke-taint/ [On File with the Columbia Journal of Environmental Law]; London T. Weston, Smoky Wine Va- riety: How Federal Crop Insurance Hinders Grape Growers Affected by Wildfire Smoke, 9 TEX. A&M J. PROP. L. 391 (2023); Kelly Ball, Smoky Grapes: Why the Risk of Smoke Exposure Should Modify Grape Contracts, 11 KY. J. EQUINE AGRIC. & NAT. RES. L. 415 (2019). 228 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 50:S Wildfire smoke is also known to have adverse effects on the health of whales,117 birds, and other wildlife.118 III. EVER-CHANGING FIRE SUPPRESSION POLICIES While global warming results mostly from greenhouse gas emis- sions all around the world, distinct U.S. policies and laws have made wildfires and their smoke much worse in this country. This Part will discuss one set of them, the shifting policies and regulations on put- ting out or preventing fires. Subsequent parts will discuss other U.S. laws that have worsened wildfires or made it more difficult to fight them. First, some prehistory. Wildfires (there wasn’t any other kind) have been around for hundreds of millions of years, and they shaped the evolution of ecosystems and some species. For example, certain kinds of pine trees produce “serotinous” cones, meaning they are sealed shut by resin until fire melts the resin and releases the seed. Some beetles have heat-sensing organs to detect forest fires from miles away; then the beetles crawl toward the fires to lay their eggs in the just-burned trees.119 Whereas today around five million acres burn annually in the U.S. in a typical year,120 in the centuries before the In- dustrial Revolution the amount was more like 145 million acres (though there is a debate over how much was natural, mostly from 117. Kiah Lee et al., Polycyclic aromatic hydrocarbon (PAH) source identification and a mater- nal transfer case study in threatened killer whales (Orcinus orca) of British Columbia, Canada, 13 SCI. REPS. 22580 (2023). 118. O.V. Sanderfoot et al., A review of the effects of wildlife smoke on the health and behavior of wildlife, 16 ENV’T RSCH. LETTERS, no. 123003 (2021); Braelei Hardt, How Does Wildlife Smoke Affect Wildlife?, NWF BLOG (July 21, 2023), https://blog.nwf.org/2023/07/how-does-wildfire- smoke-affect-wildlife/ [https://perma.cc/7F3N-8RVL]; Starre Vartan, How does wildfire smoke affect wildlife? Here’s what we know, NAT’L GEOGRAPHIC (Oct. 20, 2021), https://www.nationalge- ographic.com/animals/article/how-does-wildfire-smoke-affect-wildlife? [https://perma.cc/65 H8-QYQA]; Olivia V. Sanderfoot et al., Hazardous wildfire smoke events can alter dawn sound- scapes in dry forests of central and eastern Washington, United States, 54 GLOBAL ECOLOGY & CONSERVATION, no. e03044 (2024) (finding fewer sounds from “acoustically active wildlife” de- tected during major smoke events). 119. Justin Gillis, Let Forest Fires Burn? What the Black-Backed Woodpecker Knows, N.Y. TIMES (Aug. 6, 2017), https://www.nytimes.com/2017/08/06/science/let-forest-fires-burn-what- the-black-backed-woodpecker-knows.html [On File with the Columbia Journal of Environmen- tal Law]. 120. Total Wildland Fires and Acres (1983-2022), NAT’L INTERAGENCY FIRE CTR., https://www. nifc.gov/fireInfo/fireInfo_stats_totalFires.html [https://perma.cc/8U27-YP7T] (last visited Feb. 3, 2025). 2025] Wildfire Smoke and U.S. Law 229 lightning, and how much was set by Native Americans for agriculture, hunting, warfare, and other purposes).121 The early European settlers (or, if you prefer, invaders) made much less use of fire than the peoples they displaced, but they did use fire to clear land for farming, make the soil more productive, and create buff- ers against wildfires.122 Later, the threat of fires was worsened by the railroads, with their coal embers and sparking wheels. In the Organic Administration Act of 1897, Congress directed the Secretary of Agri- culture to “make provisions for the protection against destruction by fire and depredations upon the public forests and national forests.”123 President Theodore Roosevelt created the U.S. Forest Service within the Department of Agriculture in 1905 and charged it with conserving timber resources and watersheds. Wildfires threaten both. As one study noted, “[b]eginning in the early 1900s, federal and state land management agencies prohibited the use of prescribed fire (known as ‘light burning’) and cultural burning.”124 One of the worst wildfires in U.S. history hit in the dry summer of 1910. It burned three million acres in Idaho, Montana, and Washing- ton, incinerated five towns, and blanketed the West in smoke. Legions of immigrants, convicts, African-American Buffalo soldiers, and others were hastily marshalled to fight the flames.125 It was so horrific that after the fires died, the Forest Service declared a policy of trying to fight every fire in a national forest. It rejected the longstanding prac- tice of occasional light burning, resisted calls for scientific studies to examine whether some fire might benefit forest health, and sup- pressed research that seemed to endorse the use of prescribed fire. “In 1926, the [Forest Service] developed its 10-acre policy—that all 121. STEPHEN J. PYNE, FIRE IN AMERICA: A CULTURAL HISTORY OF WILDLAND AND RURAL FIRE 71–83 (paperback ed. 1997); CHRISTINE A. KLEIN ET AL., NATURAL RESOURCES LAW: A PLACE-BASED BOOK OF PROBLEMS AND CASES 1068–69 (2d ed. 2009). See also Bill Leenhouts, Assessment of Biomass Burn- ing in the Coterminous United States, 2 ECOLOGY & SOC’Y 1 (1998). For different numbers but still illustrating a disparity between modern and pre-industrial numbers, see Gillis, supra note 119. 122. Unless otherwise noted, the following six paragraphs are largely drawn from Robert B. Keiter, The Law Of Fire: Reshaping Public Land Policy In An Era Of Ecology And Litigation, 36 ENV’T L. 301 (2006); CAL. WILDFIRE & FOREST RESILIENCE TASK FORCE, CALIFORNIA’S STRATEGIC PLAN FOR EXPANDING THE USE OF BENEFICIAL FIRE (2022); Joshua C. Hyde et al., Air quality policy and fire man- agement responses addressing smoke from wildland fires in the United States and Australia, 26 INT’L J. WILDLAND FIRE 347 (2017); and U.S. Forest Service Fire Suppression, FOREST HIST. SOC’Y, https://foresthistory.org/research-explore/us-forest-service-history/policy-and-law/fire-u-s- forest-service/u-s-forest-service-fire-suppression/ [https://perma.cc/3U4P-SNFE] (last visited Mar. 18, 2025). 123. 16 U.S.C. § 551(1897). 124. CAL. WILDFIRE & FOREST RESILIENCE TASK FORCE, supra note 122, at 7. 125. TIMOTHY EGAN, THE BIG BURN: TEDDY ROOSEVELT AND THE FIRE THAT SAVED AMERICA (2009). 230 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 50:S wildfires should be controlled before they reached 10 acres in size.”126 Understaffing and inaccessibility made it impossible to do much with fires in remote areas until the mid-1930s, when the New Deal’s Civil- ian Conservation Corps provided a large labor force to build roads into the backcountry and fight fires there. In 1935, after another set of large fires, the Forest Service announced its “10 a.m. policy,” calling for the “fast, energetic and thorough suppression of all fires in all lo- cations” by 10 a.m. the morning following detection. Fighting fires took on military significance in World War II, when there was fear of fire attacks by Japan, first from submarines and then balloons. (The Japanese released into the jet stream nearly 9,000 bal- loons with thermite incendiary bombs; about 1,000 reached North America, but did little damage.) The U.S. adopted the theme “Careless Matches Aid the Axis” and issued posters showing the faces of Hitler and Hirohito in front of a forest fire with the caption, “Your Match, Their Secret Weapon: Prevent Forest Fires.” Advertising agencies, working pro bono during the war, used the image of Bambi (who had survived a terrifying forest fire in the 1942 Disney film); but there were problems with the licensing of Bambi, so they created a new character—Smokey Bear. After the war, the Forest Service adopted Smokey’s new slogan, “Remember, Only You Can Prevent Forest Fires.”127 (A search for Smokey Bear on YouTube reveals many itera- tions of this seemingly eternal character.) To city dwellers, all fires must be extinguished. But in the 1960s a scientific consensus emerged that fighting all fires was actually bad for forests. Before humans, small natural fires had always cleared away the underbrush, deadwood, and other forest detritus. When people stopped fires as soon as they started, all this material—what foresters incisively call “fuel”—built up, and when it caught fire and couldn’t be quenched right away, it got out of control and burned with much more intensity and destructiveness. In 1968, the National Park Service formally recognized fire as a critical ecological process and adopted a “let-burn” policy for some wildfires contained within parks, and a 1971 symposium organized by the Forest Service led to a policy shift that allowed some wildfires to burn within wilderness areas. The Forest Service dropped the 10 a.m. policy and made greater use of prescribed fires—blazes that were intentionally set, and hopefully 126. ROSS W. GORTE & KELSI BRACMORT, CONG. RSCH. SERV., RL30755, FOREST FIRE/WILDFIRE PROTECTION 2 (2012). 127. PYNE, supra note 121, at 175–77, 395–97. 2025] Wildfire Smoke and U.S. Law 231 confined—where natural fires had not done the job of clearing away the fuel. The pendulum swung again toward fighting all fires in 1988, when a drought led to a conflagration in Yellowstone National Park that burned more than 1.5 million acres. Screaming headlines and politi- cians followed, and both the Forest Service and the Park Service sus- pended their prescribed fire policies. Fewer fires were set, more nat- ural fires were put out, and, of course, forest fuel built up again. During the presidency of Bill Clinton (1993-2001), prescribed fires came back. The Forest Service deemphasized Smokey Bear, and an organization of environmentally-minded Forest Service employees introduced Reddy Squirrel and her message, “Fire happens, be ready.”128 In an effort to protect untouched forest areas, just a few days before President Clinton left office, the Forest Service adopted the “Roadless Rule,” which prohibited road building and logging in 58.5 million acres, preserving them for possible later designation as untouchable under the Wilderness Act of 1964. Legally, prescribed fires may be started and wildfires may be fought in roadless and wil- derness areas, but they usually aren’t; these areas are typically just left alone to let nature take its course.129 Another reason not to fight every fire is that it’s dangerous work. In a typical year, roughly ten firefighters die fighting wildfires in the U.S.,130 and they are at high risk of lung cancer and cardiovascular dis- ease mortality as a result of prolonged smoke exposure.131 One Wyo- ming fire marshal declared some developments “suicide subdivisions” and gave public notice that firefighter safety will not be risked to de- fend the homes in case of a wildfire.132 Some states were unhappy that the Forest Service was not cutting down more trees as a way to block fires. New Mexico argued that the U.S. had “forfeited jurisdictional supremacy” and that the state could 128. KLEIN, supra note 121, at 1120. 129. GREG APLIET & PAUL SPITLER, WILDERNESS SOC’Y, WILDFIRE AND WILDNESS: A BRIEF PRIMER (2014), https://nmwild.org/images/our-work/pecos/TWSWildernessFireFactSheet2014.pdf [https://perma.cc/S77A-3V38]. 130. Kelsey G. Glover et al., Wildland Firefighters Suffer Increasing Risk of Job-Related Death, 45 J. BURN CARE & RSCH, no. irae036.103 (2024) (finding that 96 firefighters died fighting wildfires in the 10 year period 2013–2022). 131. Kathleen M. Navarro, Wildland firefighter smoke exposure and risk of lung cancer and car- diovascular disease mortality, 173 ENV’T RSCH. 462 (2019). 132. HEADWATERS ECON., REDUCING WILDFIRE RISKS TO COMMUNITIES (2014). Similarly, see Fer- nanda Santos, A Fire-Scorched Arizona Pushes Prevention: Step 1, Clean Your Yard, N.Y. TIMES (June 30, 2017), https://www.nytimes.com/2017/06/30/us/arizona-wildfire-prevention.html [On File with the Columbia Journal of Environmental Law]. 232 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 50:S go onto the national forest and cut trees itself. A federal court disa- greed, finding that the Property Clause of the Constitution grants Con- gress, not the states, control over federal lands.133 On July 27, 1995, Congress passed a major spending bill that in- cluded what has come to be known as the Salvage Logging Rider. It made it more difficult, for a limited period of time, to use the environ- mental laws to restrain logging. President Clinton initially vetoed the bill, stating that “suspending all the environmental laws of the country for three years is not an appropriate way” to log the national forests. A few weeks later, however, President Clinton signed the bill.134 The forest industry found a new friend in President George W. Bush when he took office in 2001. In 2003, he signed the Healthy Forests Restoration Act, which made it harder to use the environmental laws and other administrative and judicial processes to fight mechanical thinning and salvage logging. The courts have held that this law some- times authorizes clearcutting when needed, for example, to deal with a mountain pine beetle infestation.135 The Bush administration tried to revoke the Roadless Rule and replace it with something weaker, but lost in court.136 The 2003 statute set up a process for counties to draft and adopt Community Wildfire Protection Plans with the help of federal plan- ning money.137 These plans identify and map areas at risk of fire, and then provide rules or incentives to deal with these risks. They can become integrated into hazard mitigation plans, which the Federal Emergency Management Agency (FEMA) requires before releasing certain financial assistance. The way firefighting on federal lands was paid for created real diffi- culties. Congress set the budget for wildland fire suppression based on prior spending. That was fine when the costs were predictable and 133. United States v. Bd. of Cnty. Comm’rs of Otero, 184 F. Supp. 3d 1097 (D.N.M. 2015). 134. Trilby C.E. Dorn, Logging Without Laws: The 1995 Salvage Logging Rider Radically Changes Policy and the Rule of Law in the Forests, 9 TUL. ENV’T L. REV. 447, 463 (1996). See also HANSON, supra note 79, at 5–6. 135. Decker v. U.S. Forest Serv., 780 F. Supp. 2d 1170 (D. Colo. 2011). 136. Wyoming v. U.S. Dep’t of Agric., 661 F.3d 1209 (10th Cir. 2011), cert. denied, 568 U.S. 928 (2012). The prior and subsequent history of the Roadless Rule is discussed in Natalie Bishop, On the ‘Road’ Again: The ‘Roadless Rule’ Saga, the Tongass National Forest Exemption, and the Future of State-Specific Roadless Rules, 73 ADMIN. L. REV. 421 (2021). 137. Stephen R. Miller, Planning for Wildfire in the Wildland-Urban Interface: A Guide for West- ern Communities, 49 URB. L. 207 (2017); Myles Conway, Expanding wildfire planning efforts to address rising temperatures, MARTEN LAW LLP (Aug. 21, 2018), https://www.lexology.com/li- brary/detail.aspx?g=87f6e6fc-22c3-49b8-90d3-c4c807f7801b [https://perma.cc/QEB4-ADR 2]. 2025] Wildfire Smoke and U.S. Law 233 stable. However, in a warmer world with the continuing build-up of fuels and more people living in or near forests, the costs of fighting fires increased, and the Forest Service had to take money from its other programs in order to fight fires. Some years, around 80% of the Forest Service’s budget has gone to firefighting, some of it at the ex- pense of programs such as forest thinning to reduce the risk of un- wanted wildfires; there is no dedicated budget line for managed fires.138 Most of this firefighting money is spent on private contractors in what some have called the “fire industrial complex,” whose mem- bers have a great incentive to fight fires rather than prevent them.139 As a further step toward privatization, some insurance companies hire private firefighting companies to go save their clients’ houses but let the others burn.140 In October 2009, President Barack Obama signed the Federal Land Assistance, Management and Enhancement Act (FLAME) to create a more sustainable funding mechanism.141 The funding process was further modified by budget and appropriations legislation signed by President Donald Trump in 2018 that created a disaster fund to help pay for the most expensive fire seasons without taking away money from other programs. It also created new exemptions from the Na- tional Environmental Policy Act (NEPA) and the Endangered Species Act (ESA); in the view of one commentator, these “could provide a backdoor to large-scale logging projects across millions of acres with- out addressing the issues of fire risk or forest health.”142 On August 6, 2018, President Trump tweeted, “California wildfires are being magnified & made so much worse by the bad environmental laws which aren’t allowing massive amount of readily available water to be properly utilized. It is being diverted into the Pacific Ocean. Must also tree clear to stop fire spreading!”143 A few days later Ryan 138. LISA DALE & KIMIKO BARRETT, HEADWATERS ECON. & COLUMBIA CLIMATE SCH., MISSING THE MARK: EFFECTIVENESS AND FUNDING IN COMMUNITY WILDFIRE RISK REDUCTION 10, 12 (2023), https://headwaterseconomics.org/wp-content/uploads/HE_2023_Missing-the-Mark- Wildfire.pdf [https://perma.cc/4XFG-LSTX]; Stephanie M. Regenold & Matthew L. Rojas, Money to Burn: Investing in Proactive Fire Management, 33 NAT. RES. & ENV’T, Winter 2019, at 12. 139. TIMOTHY INGALSBEE, FIREFIGHTERS UNITED FOR SAFETY, ETHICS & ECOLOGY, GETTING BURNED: A TAXPAYER’S GUIDE TO WILDFIRE SUPPRESSION COSTS 15 (2010). 140. MCKENZIE FUNK, WINDFALL: THE BOOMING BUSINESS OF GLOBAL WARMING 102–07 (2014). 141. W. Wallace Covington & Diane Vosick, Restoring The Sustainability Of Frequent-Fire For- ests Of The Rocky Mountain West, 48 ARIZ. ST. L.J. 11 (2016). 142. RYAN RICHARDS, CTR. FOR AM. PROGRESS, DEFINING SUCCESS FOR THE WILDFIRE FUNDING FIX (2018). 143. John D. Sutter, Trump’s ‘ridiculous’ tweet about California wildfires, CNN (Aug. 8, 2018), https://www.cnn.com/2018/08/07/health/trump-tweet-california-wildfire-water-invs/in- dex.html [https://perma.cc/UP2M-C44E]. 234 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 50:S Zinke, the Secretary of the Interior, told Breitbart News that “environ- mental terrorist groups” are preventing the government from manag- ing forests. In a different interview, he said, “This has nothing to do with climate change. This has to do with active forest manage- ment.”144 As many experts quickly pointed out, the part about water being diverted is false; the water diversion is not affecting fire- fighting.145 And the disavowal of climate change is also false. President Trump followed up by issuing an executive order with the stated purpose of reducing wildfire risk, but that served to make it easier to engage in logging.146 Environmental experts quickly criti- cized the order as being ineffective—if not counterproductive—in combatting wildfires, and as favoring Republican donors in the for- estry industry.147 Consistent with the order, the Forest Service issued a rule allowing the logging of old-growth forests in the Pacific North- west and making it easier to mine and build roads on Forest Service lands.148 This order was challenged in the U.S. District Court in Ore- gon. The court found that the Forest Service had violated NEPA, the ESA, and the National Forest Management Act (NFMA) in taking this 144. Erin B. Logan, Ryan Zinke blames ‘environmental terrorist groups’ for severity of California wildfires, WASH. POST (Aug. 15, 2018), https://www.washingtonpost.com/nation/2018/08/15/ ryan-zinke-blames-california-wildfires-environmental-terrorist-groups/ [On File with the Co- lumbia Journal of Environmental Law]. 145. Lisa Friedman, Trump Inaccurately Claims California Is Wasting Water as Fires Burn, N.Y. TIMES (Aug. 6, 2018), https://www.nytimes.com/2018/08/06/climate/trump-california-fire- tweets.html [On File with the Columbia Journal of Environmental Law]. For discussion of his false statements about forest management, see Kendra Pierre-Louis, Trump’s Misleading Claims About California’s Fire ‘Mismanagement,’ N.Y. TIMES (Oct. 13, 2018), https://www.nytimes. com/2018/11/12/us/politics/fact-check-trump-california-fire-tweet.html [On File with the Columbia Journal of Environmental Law]. 146. Exec. Order No. 13855, 84 Fed. Reg. 45 (Dec. 21, 2018). 147. Mark Hand, Trump ignores climate change, offers handouts to timber industry in wildfire executive order, THINK PROGRESS (Dec. 24, 2018), https://archive.thinkprogress.org/trump-ig- nores-climate-change-offers-handouts-to-timber-industry-in-wildfire-executive-order-65a4db c382fe/ [https://perma.cc/ENM2-WGKE]; Darryl Fears & Juliet Eilperin, Trump’s executive or- der will aggressively cut more forest trees, WASH. POST (Jan. 14, 2019), https://www.washing- tonpost.com/energy-environment/2019/01/14/trumps-executive-order-will-cut-more-fores t-trees-some-publics-tools-stop-it/ [On File with the Columbia Journal of Environmental Law]; Alex Kotch, America’s Biggest Wildfire Profiteer Is Major Donor to Republicans Whose Policies Benefit His Business, SLUDGE (Dec. 6, 2018), https://readsludge.com/2018/12/06/americas-big- gest-wildfire-profiteer-is-major-donor-to-republicans-whose-policies-benefit-his-business/ [https://perma.cc/2ABC-YNR5]. 148. Dino Grandoni, The Energy 202: Trump administration seeks to ease way for logging, fire prevention in national forests, WASH. POST (June 13, 2019), https://www.washing- tonpost.com/news/powerpost/paloma/the-energy-202/2019/06/13/the-energy-202-trump- administration-seeks-to-ease-way-for-logging-fire-prevention-in-national-forests/5d012e461 ad2e55f2de7c0a7/ [On File with the Columbia Journal of Environmental Law]. 2025] Wildfire Smoke and U.S. Law 235 action without, among other things, preparation of an environmental impact statement.149 Under President Joseph Biden, EPA, the Departments of Interior and Agriculture, and the Centers for Disease Control and Prevention (CDC) agreed to work together to improve land management practices to re- duce wildfire risk.150 The Bipartisan Infrastructure Law of 2021 in- cluded $3.5 billion to the Forest Service and $1.5 billion to the Na- tional Park Service over five years for wildfire preparedness, fuels management, post-fire restoration, and fire science.151 Project 2025, a Heritage Foundation report that many look to as roadmap for likely actions in the second Trump administration, ex- presses skepticism about prescribed burning and advocates mechan- ical thinning and increased timber sales as the preferred methods to control wildfires, as well as reducing the obstacles posed by NEPA and the ESA.152 Thus, as this is written in early 2025, significant changes in federal wildfire policy are anticipated.153 IV. PRESCRIBED FIRE: THE PRINCIPAL SOLUTION Most people’s immediate reaction to wildfires is that we should put them out. That is what we try to do when a building catches fire. However, it has become clear that suppressing fires as the major strat- egy no longer works for wildfires, if it ever did. As one study noted, 149. Greater Hells Canyon v. Wilkes, No. 22-cv-00859-HL (D. Or. Mar. 29, 2024) (order adopt- ing findings & recommendation). 150. Biden-Harris Administration Agencies Sign Interagency Agreement to Address Wildfire Risk and Protect Communities From Smoke, U.S. DEP’T OF AGRIC. (Nov. 9, 2023), https://www.usda.gov/about-usda/news/press-releases/2023/11/09/biden-harris-admin- istration-agencies-sign-interagency-agreement-address-wildfire-risk-and-protect [https://per ma.cc/FG8N-LR2C]. 151. How the Bipartisan Infrastructure Law Impacts Wildland Fire, NAT’L PARK SERV., https://www.nps.gov/subjects/fire/bipartisan-infrastructure-law.htm [https://perma.cc/76H 9-LKM4] (last visited Feb. 9, 2025); Alyssa Lukpat, Biden Administration Announces Plan to Spend Billions to Prevent Wildfires, N.Y. TIMES (Jan. 19, 2022), https://www.nytimes.com/ 2022/01/19/climate/biden-administration-wildfire-plan.html [On File with the Columbia Jour- nal of Environmental Law]; Fact Sheet: The Biden-Harris Administration Continues Efforts to Ad- dress Growing Wildfire Threat, WHITE HOUSE (July 28, 2022), https://bidenwhitehouse.ar- chives.gov/briefing-room/statements-releases/2022/07/28/fact-sheet-the-biden-harris- administration-continues-efforts-to-address-growing-wildfire-threat/ [https://perma.cc/4SH P-2BHW]. 152. HERITAGE FOUND., 2025 MANDATE FOR LEADERSHIP: THE CONSERVATIVE PROMISE 308 (2023), https://static.project2025.org/2025_MandateForLeadership_FULL.pdf [https://perma.cc/4KF 5-PHT2]. 153. Peter Slevin, The Felling of the U.S. Forest System, NEW YORKER (Mar. 13, 2025), https://www.newyorker.com/news/the-lede/the-felling-of-the-us-forest-service [https://per ma.cc/3XEX-V9UR]. 236 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 50:S “This is the wildfire paradox: Wildfire suppression, effective 95% to 98% of the time, inevitably leads to ecologically significant wildfires with higher intensities and rapid growth that are unable to be sup- pressed.”154 One 2021 study from the Stanford Woods Institute for the Environment concluded, “there is no way for CalFire [the Califor- nia Department of Forestry and Fire Protection] in combination with local and federal firefighting agencies to firefight the state out of this crisis.” The state spent more than $3.6 billion fighting fires in 2020, “[b]ut it’s not at all clear that doubling or tripling the fire suppression outlay would lead to better outcomes for California communities.” Moreover, that study found, “the most destructive fires in terms of loss of life, property destruction, and smoke impacts, often occur dur- ing weather conditions where fire suppression is largely or even to- tally ineffective.”155 Trying to suppress all wildfires is not natural. As discussed above, forests developed over the centuries with frequent, mostly small fires ignited by lightning. The dominant tree species and other vegetation naturally adapted to these fires, and some actually require fire in order to thrive. When fires are suppressed and these natural processes do not occur, the mix of tree species changes; for example, healthy oak woodlands need fire every three to fifteen years to thrive. Without fire, trees like Douglas fir, bay laurel, and madrone can quickly overtake the oak.156 Mechanical fuels treatment—sending in workers to physically remove dead trees and other fuel—is very expensive, requiring large amounts of personnel and equipment, and in some cases can actually increase fire frequency or intensity.157 There is some use of “fire 154. David E. Calkin et al., How risk management can prevent future wildfire disasters in the wildland-urban interface, 111 PROC. NAT’L ACAD. SCI. 746 (2013) (citations omitted). 155. MICHAEL WARA, STANFORD WOODS INST. FOR THE ENV’T, A NEW STRATEGY FOR ADDRESSING THE WILDFIRE EPIDEMIC IN CALIFORNIA 1 (2021), https://woodsinstitute.stanford.edu/system/files/pu blications/New_Strategy_Wildfire_Epidemic_Whitepaper_1.pdf [https://perma.cc/G3UX-ATEL ]. 156. Mukta Patil, Living with Fire, BAY NATURE (June 23, 2021), https://baynature.org/arti- cle/living-with-fire-in-california/ [https://perma.cc/39L2-EJDZ]. 157. William Boyd, Climate Liability for Wildfire Emissions from Federal Forests, 48 ECOLOGY L.Q. 981, 1003–04 (2021); Dana Mitchell & Mathew Smidt, Costs of Mechanical Fuel Reduction Treatments, in ENCYCLOPEDIA OF WILDFIRES AND WILDLAND-URBAN INTERFACE (WUI) FIRES (S.L. Man- zello ed., 2019), https://www.srs.fs.usda.gov/pubs/ja/2019/ja_2019_mitchell_003.pdf [On File with the Columbia Journal of Environmental Law]; Sara Elizabeth Jensen, Policy Tools for Wildland Fire Management: Principles, Incentives and Conflicts, 46 NAT. RES. J. 959, 974–75 (2006). 2025] Wildfire Smoke and U.S. Law 237 flocks”—flocks of goats and sheep that are released into forest and eat some of the fuel—but this may not be practical at scale.158 An expert consensus has emerged that one major way to ad- dress wildfires is through prescribed burning—the frequent planned setting of small fires that will clear away the fuel: underbrush, dead trees, and other highly flammable vegetation. Numerous reports have reached this conclusion,159 though there are arguments about the de- tails of some programs,160 and a few commentators disagree.161 Pre- scribed fires are much cheaper than mechanical fuels treatment, allow for treatment in remote locations or in rough terrain where other treatment methods are not practical, and can ecologically benefit spe- cies that have adapted to fire-prone conditions.162 As one ecologist wrote: Forest thinning should not be conflated with prescribed burning, which can temporarily reduce the intensity of a potential fire and will slow down its approach. Prescribed fire usually kills less than 5 percent of the mature trees in a forest canopy. The important thing is that the trees stay in the forest, even if they burn. Charred wood is a valuable habitat for woodpeckers and other cavity-nesting birds 158. Sergi Nuss-Girona et al., Fire Flocks: Participating Farmers’ Perceptions after Five Years of Development, 11 LAND 1718 (2022). 159. E.g., Xiao Wu et al., Low-intensity fires mitigate the risk of high-intensity wildfires in Cali- fornia’s forests, 9 SCI. ADVANCES, no. eadi4123 (2023); Crystal A. Kolden, We’re Not Doing Enough Prescribed Fire in the Western United States to Mitigate Wildfire Risk, 2 FIRE 30 (2019); U.N. ENV’T PROGRAMME, supra note 19, at 12; CAL. WILDFIRE & FOREST RESILIENCE TASK FORCE, CALIFORNIA’S STRATEGIC PLAN FOR EXPANDING THE USE OF BENEFICIAL FIRE 3, 6 (2022), https://wildfiretask- force.org/wp-content/uploads/2022/05/californias-strategic-plan-for-expanding-the-use-of- beneficial-fire.pdf [On File with the Columbia Journal of Environmental Law]; NAT’L WILDFIRE COORDINATING GRP., NWCG SMOKE MANAGEMENT GUIDE FOR PRESCRIBED FIRE 12 (2020), https://fs- prod-nwcg.s3.us-gov-west-1.amazonaws.com/s3fs-public/publication/pms420-3.pdf [On File with the Columbia Journal of Environmental Law]; Winston Choi-Schagrin, Wildfires Are Inten- sifying. Here’s Why, and What Can Be Done., N.Y. TIMES (July 16, 2021), https://www.ny- times.com/2021/07/16/climate/wildfires-smoke-safety-questions.html [On File with the Co- lumbia Journal of Environmental Law]; Felicity Barringer, Gaining in Public Acceptance, Can Prescribed Fires Head Off Devastating Wildfires?, BILL LANE CTR. FOR THE AM. WEST (July 18, 2019), https://andthewest.stanford.edu/2019/gaining-in-public-acceptance-can-prescribed-fires- head-off-devastating-wildfires/ [https://perma.cc/ZVF8-YTGY]; Kate Selig, In California, Con- trolled Fires Can Save Homes. Why Aren’t More Happening?, N.Y. TIMES (Sept. 7, 2024), https://www.nytimes.com/2024/09/07/us/california-controlled-fire.html [On File with the Columbia Journal of Environmental Law]. 160. Joshua Emerson Smith, Newsom’s $1-billion wildfire plan favors logging over homeowners, critics say, L.A. TIMES (May 2, 2021), https://www.latimes.com/environment/story/2021-04- 30/newsom-california-wildfire-plan [https://perma.cc/EM3N-TPEN]. 161. E.g., CHAD T. HANSON, SMOKESCREEN: DEBUNKING WILDFIRE MYTHS TO SAVE OUR FORESTS AND OUR CLIMATE 52–59 (2021). 162. Brendan Barbara, The Need for Reform in Forest Service Wildfire Discretion, 34 COLO. NAT. RES. ENERGY & ENV’T L. REV. 327, 337 (2023). 238 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 50:S and mammals as well as the plants and insects that sustain them. Fire unlocks nutrients from leaves and pine needles and enhances a forest’s carbon sequestration and storage. In a fire, just 1 to 2 per- cent of the tree’s carbon is consumed and emitted. Logging is the real carbon bomb, because most of the carbon ends up in the atmos- phere.163 Prescribed fires also improve the food supply and other habitat characteristics for several species of mammals (such as deer and big- horn sheep) and birds (such as bobwhite quail and wild turkey),164 and have numerous other ecological benefits.165 On the other hand, prescribed burns can only be performed during certain weather and heat conditions, making it harder to find safe windows for the burning than mechanical treatment, which faces fewer constraints. California’s plan for prescribed burns found, “[f]ire suppression will continue to be critical to protect communities and infrastructure in the wildland urban interface and more urbanized landscapes. The ac- tive use of fire, however, is also among the most important tools for safety of our communities. Restoring fire as a keystone natural pro- cess . . . will re-establish ecological resilience and better protect com- munities and public health.”166 The U.S. Forest Service has adopted a similar policy.167 In 2022, the Forest Service announced a ten-year strategy to treat up to an additional 20 million acres on National For- est System Lands, and up to an additional 30 million acres of other Federal, State, Tribal and private lands.168 In recent years the Forest Service has been treating around 800,000 acres a year.169 The states retain control over non-federal lands, and some state agencies are taking steps to make it easier to conduct prescribed 163. Chad Hanson, Logging in disguise: How forest thinning is making wildfires worse, GRIST (Aug. 24, 2021), https://grist.org/fix/opinion/forest-thinning-logging-makes-wildfires-worse/ [https://perma.cc/Z2PL-N662]. 164. NAT’L WILDFIRE COORDINATING GRP., supra note 159, at 13. 165. Ben Richmond, Beyond the Exceptional Events Rule: How the Local Implementation of Air Quality Regulations Affects Wildfire Air Policy, 46 ECOLOGY L.Q. 343, 347–48 (2019); Scott L. Ste- phens et al., Forest restoration and fuels reduction work: Different pathways for achieving success in the Sierra Nevada, 34 ECOLOGICAL APPLICATIONS, no. e2932 (2023). 166. CAL. WILDFIRE & FOREST RESILIENCE TASK FORCE, supra note 159, at 6. 167. U.S. FOREST SERV., NATIONAL PRESCRIBED FIRE RESOURCE MOBILIZATION STRATEGY (2023), https://www.fs.usda.gov/sites/default/files/fs_media/fs_document/Rx-Fire-Strategy.pdf [On File with the Columbia Journal of Environmental Law]. 168. U.S. FOREST SERV., WILDFIRE CRISIS STRATEGY 5 (2022), https://www.fs.usda.gov/sites/de- fault/files/Confronting-Wildfire-Crisis.pdf [On File with the Columbia Journal of Environmental Law]. 169. U.S. FOREST SERV., CONFRONTING THE WILDFIRE CRISIS: MAKING A DIFFERENCE 3 (2025), https://www.fs.usda.gov/sites/default/files/fs_media/fs_document/WCS-making-difference.p df [On File with the Columbia Journal of Environmental Law]. 2025] Wildfire Smoke and U.S. Law 239 burns in their territories.170 California has adopted a goal of reducing fuels on one million acres per year. One study, using conservative as- sumptions, found that meeting this goal would annually cost $3 billion but would confer a benefit of $10.9 billion.171 An online dashboard maintained by the state shows that acres treated in 2023 were almost exactly at the goal; acres in 2021 and 2022 were somewhat below.172 While there seems to be too little prescribed fire in most of the United States, one exception is the southeastern states, which have engaged in large-scale prescribed burning since at least the mid-twen- tieth century, and which between 1998 and 2018 had over twice the amount of prescribed fire as the rest of the country combined.173 This has been identified as one of the reasons why these states have expe- rienced far fewer wildfire disasters than the western U.S.174 Residents in the southeastern states “are more accustomed to using controlled fire to enhance timber production, control the rapidly growing vege- tation, and enhance game species habitat.”175 Another reason for fewer wildfire disasters is that the southeastern states are wetter and more humid than the rest of the continental United States.176 Prescribed fires do generate smoke, but it has substantially fewer negative impacts than wildfire smoke. Prescribed fires typically create far lower concentrations of PM2.5 and other air pollutants than wildfires.177 They are planned and managed to take place when 170. See Seyed Sadredin, Devastating Health Impacts Associated With Air Pollution From Wild- fires and Potential Actions by the District Aimed at Reducing the Number and Intensity of Wildfires in the Future, SAN JOAQUIN VALLEY AIR POLLUTION CONTROL DIST. (Nov. 19, 2015), http://www.val- leyair.org/Board_meetings/GB/agenda_minutes/Agenda/2015/November/final/09.pdf [https ://perma.cc/2N2M-T8D3]. 171. PATRICK T. BROWN, BREAKTHROUGH INST., COST-EFFECTIVENESS OF LARGE-SCALE FUEL REDUCTION FOR WILDFIRE MITIGATION IN CALIFORNIA 2 (2024), https://thebreak- through.imgix.net/Cost-Effectiveness-of-Large-Scale-Fuel-Reduction-for-Wildfire-Mitigation- in-California_v3-1.pdf [https://perma.cc/622B-5UU7]. 172. Interagency Treatment Dashboard, CAL. WILDFIRE & FOREST RESILIENCE TASK FORCE, https://interagencytrackingsystem.org/ [https://perma.cc/2CF2-G9YG] (last visited Dec. 15, 2024). The figures displayed were 818,525 acres in 2021 (the first year displayed); 854,591 acres in 2022; and 1,058,306 acres in 2023. 173. WILLIAM BOYD, THE SLAIN WOOD: PAPERMAKING AND ITS ENVIRONMENTAL CONSEQUENCES IN THE AMERICAN SOUTH 29 (2015). 174. Kolden, supra note 159, at 6. 175. Id. at 7. 176. U.S. GLOBAL CHANGE RSCH. PROGRAM, GLOBAL CLIMATE CHANGE IMPACTS IN THE UNITED STATES 2009 REPORT, SOUTHEAST (2009), https://nca2009.globalchange.gov/southeast/index.html [https://perma.cc/VAP4-LHYW]. 177. Kathleen M. Navarro et al., A Review of Community Smoke Exposure from Wildfire Com- pared to Prescribed Fire in the United States, 9 ATMOSPHERE 185 (2018); S.J. Kramer et al., 240 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 50:S weather conditions are favorable, such as when winds would blow smoke away from population centers. Nearby communities can be no- tified in advance, making it easier for residents to minimize the im- pacts. These fires do not burn buildings and other structures that may have toxic chemicals. Fire professionals have identified several other techniques to minimize the smoke.178 The true masters of planned burning are the Native American tribes. They have been doing it for thousands of years to recycle nu- trients, manage plant and wildlife habitat, provide community protec- tion, control insects and disease, and engage in cultural and spiritual practices.179 They understand how fire interacts with their environ- ment, for example, how wind would spread fire down a particular hillside.180 European settlers halted these practices in many places, sometimes violently; stopped the regular burning; and began altering the landscape in ways that increased fire risks, such as overgrazing and removing fire-resistant old growth forests for the logs and then using that land for grazing and planting.181 Some of these traditional tribal efforts have continued, however.182 One bit of evidence of their Projected smoke impacts from increased prescribed fire activity in California’s high wildfire risk landscape, 311 ATMOSPHERIC ENV’T 119993 (2023); Mary Prunicki et al., The impact of prescribed fire versus wildfire on the immune and cardiovascular systems of children, 74 ALLERGY 1989 (2019); Jonathan W. Long et al., Aligning Smoke Management with Ecological and Public Health Goals, 116 J. FORESTRY 76, 80 (2017); NAT’L WILDFIRE COORDINATING GRP., supra note 159, at 8. But see Nicolas Borchers-Arriagada et al., Smoke health costs and the calculus for wildfires fuel man- agement: a modelling study, 5 LANCET-PLANETARY HEALTH 608 (2021) (finding prescribed burns produce more PM2.5 per hectare than wildfire smoke). See also Benjamin A. Jones et al., More smoke today for less smoke tomorrow? We need to better understand the public health benefits and costs of prescribed fire, 31 INT’L J. WILDLAND FIRE 918 (2022). 178. NAT’L WILDFIRE COORDINATING GRP., supra note 159, at 146–63. Some of these techniques include burning fewer acres, burning when fuels have a higher fuel moisture content, removing fuels before ignition, and shifting combustion from the smoldering phase to the flaming phase. 179. CAL. WILDFIRE & FOREST RESILIENCE TASK FORCE, supra note 159, at 7, 27–30. Indigenous peoples in South America and Africa have also long often used their own fire management tech- niques. Imogen Saunders, International Disaster Relief Law and Article 38(1)(c) of the Statute of the International Court of Justice: The Forgotten Source of International Law, in THE INTERNATIONAL LAW OF DISASTER RELIEF 29, 42 (David D. Caron ed., 2014). 180. Jill Cowan, Alarmed by Wildfires, Officials Turn to Tribes for Help, N.Y. TIMES (Oct. 8, 2020), https://www.nytimes.com/2020/10/07/us/native-american-burning-practices-califor- nia.html [On File with the Columbia Journal of Environmental Law]; Robyn Schelenz, How the Indigenous practice of ‘good fire’ can help our forests thrive, UNIV. OF CAL. (Apr. 6, 2022), https://www.universityofcalifornia.edu/news/how-indigenous-practice-good-fire-can-help- our-forests-thrive [https://perma.cc/YU4W-W8HL]. 181. William P. Edwards, The New Normal: Living with Wildland Fire, NAT. RES. & ENV’T, Winter 2019, at 30, 33. 182. It is not only Native Americans who developed these practices; so did the aboriginal peo- ple of Australia. Alexis Wright, Want to Stop Australia’s Fires? Listen to Aboriginal People, N.Y. 2025] Wildfire Smoke and U.S. Law 241 effectiveness occurred in 2011, when the Wallow Fire became the worst in Arizona history. The fire would have been even worse but for the longstanding efforts of the White Mountain Apache Tribe in managing their forest, including burning underbrush, clearing younger trees and logging larger trees, all of which slowed the spread of the fire.183 The tribal manager said that a key to success is that the tribe is “unhindered by environmental litigation and drawn-out fed- eral government processes.”184 Similarly, traditional forestry tech- niques used by the Westbank First Nation in British Columbia helped save a town from an incoming wildfire in 2023.185 One study found that fire suppression on tribal lands (though not necessarily using in- digenous techniques) had a benefit-cost ratio of greater than 4.5.186 Today some forest managers are beginning to mimic the tribal prac- tices. California’s wildfire plans say that the “state and its partners will support expansion of cultural burning, and seek to better inte- grate tribal organizations and cultural fire practitioners into public agency prescribed fire projects and programs.”187 Nonetheless, sev- eral legal and bureaucratic obstacles inhibit cultural burning.188 This is very partially addressed by the Tribal Forest Protection Act of 2024, which allows the U.S. Forest Service and the Bureau of Land TIMES (Jan. 15, 2020), https://www.nytimes.com/2020/01/15/opinion/australia-fires-aborig- inal-people.html [On File with the Columbia Journal of Environmental Law]; Thomas Buller & Matthew Abbott, Reducing Fire, and Cutting Emissions, the Aboriginal Way, N.Y. TIMES (Jan. 16, 2020), https://www.nytimes.com/2020/01/16/world/australia/aboriginal-fire-management. html [On File with the Columbia Journal of Environmental Law]. 183. Brandon Quester, Experts: Managing tribal forest helped stop Wallow Fire at reservation, CRONKITE NEWS (Dec. 8, 2011), https://cronkitenewsonline.com/2011/12/experts-decades-of- logging-treatments-helped-stop-wallow-fire-at-reservation/index.html [https://perma.cc/XT6Y-ETZD]. 184. Katie Tubb & Sophia Bagley, How Federalism is Making a Difference on Western Lands, HERITAGE FOUND. (Aug. 21, 2019), https://www.heritage.org/environment/commentary/how- federalism-making-difference-western-lands [https://perma.cc/RCZ8-ZZNQ]. 185. Ian Austen, How Indigenous Techniques Saved a Community From Wildfire, N.Y. TIMES (Aug. 28, 2023), https://www.nytimes.com/2023/08/27/world/canada/canada-wildfires-ke- lowna-british-columbia.html [On File with the Columbia Journal of Environmental Law]. 186. Karen L. Abt et al., Effect of fire prevention programs on accidental and incendiary wildfires on tribal lands in the United States, 24 INT’L J. WILDLAND FIRE 749 (2015). 187. CAL. WILDFIRE & FOREST RESILIENCE TASK FORCE, supra note 159, at 5. 188. SARA A. CLARK ET AL., KARUK TRIBE, GOOD FIRE: CURRENT BARRIERS TO THE EXPANSION OF CULTURAL BURNING AND PRESCRIBED FIRE IN CALIFORNIA AND RECOMMENDED SOLUTIONS (2022), https://karuktribeclimatechangeprojects.files.wordpress.com/2022/06/karuk-prescribed- fire-rpt_2022_v2-1.pdf [https://perma.cc/2TQF-XLCK]. 242 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 50:S Management to enter into agreements with tribes to allow them to carry out their own forest management practices.189 Funding prescribed burns continues to be a major issue. That, to- gether with the associated lack of capacity (e.g. resources, knowledge and people to conduct work), was found to be the greatest barrier to prescribed burns.190 However, some places have created ways to pay. For example, in 2012 the City of Flagstaff, Arizona, which had suffered a devastating fire in 2010, approved a municipal bond issue to under- take forest restoration (including selective thinning and prescribed burns) and watershed management to reduce the fire risk.191 One way to help pay for forest thinning could be to collect the wood and send it to large factories that process it into wood pellets, which are then burned in power plants to produce electricity. However, this can create serious smoke conditions around the power plants; the vic- tims of the smoke become the neighbors of the power plants rather than those who live downstream of the forests.192 The wood pellet companies sometimes claim that they are carbon neutral because the trees that are cut down then regrow and absorb CO2, but there are se- rious issues with this claim. New tree growth does not always occur, and even if it does, the CO2 is absorbed by the trees over a period of years or decades, while the CO2 is released instantly when the wood pellets are burned.193 A particular challenge is conducting prescribed burns on privately- owned lands. Many farmers conduct their own burns on their own land, but except in emergencies, the government cannot go onto 189. 25 U.S.C. § 3115(a). See Crystal Owens, Bill Would Give Tribes Stronger Say In Forest Pro- tection, LAW360 (June 4, 2024), https://www.law360.com/articles/1843934/bill-would-give- tribes-stronger-say-in-forest-protection [On File with the Columbia Journal of Environmental Law]. 190. COURTNEY A. SCHULTZ ET. AL., ECOSYSTEM WORKFORCE PROGRAM, PRESCRIBED FIRE POLICY BARRIERS AND OPPORTUNITIES: A DIVERSITY OF CHALLENGES AND STRATEGIES ACROSS THE WEST 2 (2018). 191. Regenold & Rojas, supra note 138, at 14. 192. Rita Vaughan Frost, Why Wood Pellets Won’t Solve California’s Wildfire Problem, NAT. RES. DEF. COUNCIL (Feb. 1, 2024), https://www.nrdc.org/bio/rita-frost/why-wood-pellets-wont- solve-californias-wildfire-problem [https://perma.cc/T54Z-UESW]. 193. Rebecca Speare-cole, Biomass is promoted as a carbon neutral fuel. But is burning wood a step in the wrong direction?, GUARDIAN (Oct. 5, 2021), https://www.theguardian.com/environ- ment/2021/oct/04/biomass-plants-us-south-carbon-neutral [https://perma.cc/WU8Q-8LYS]; Noah Haggerty, Biofuel plans alarm a community; A project to reduce wildfire risk could worsen air pollution in South Stockton, L.A. TIMES (Dec. 18, 2024), https://www.latimes.com/environ- ment/story/2024-12-01/wood-biofuel-project-could-worsen-air-quality-critics-say [https:// perma.cc/X5CQ-D3PH]; Emma Shumway, Wood Pellet Production in the U.S. South and Exporta- tion for ‘Renewable’ Energy in Europe: The New Green Sacrifice Zone, 48 COLUM. J. ENV’T L. 478, 168–69 (2023). 2025] Wildfire Smoke and U.S. Law 243 private land and set fires, and even then, in some states it may have to compensate the owner for the damage.194 Voluntary cooperation by the landowners is required if forests are to be managed in a way that reduces wildfires.195 The issue of cooperation is especially challeng- ing where the forest landscape features a mosaic of federal, state, and private ownership, with each owner having different goals and inter- ests.196 One approach to overcoming this challenge is “prescribed burn associations”—voluntary groups of landowners who pool their knowledge, equipment and other resources to help members conduct these prescribed burns. There are more than 132 of these associations in 22 states.197 As one participant wrote, “Prescribed-burn associa- tions—neighbors helping neighbors burn—[pool] community mem- bers’ resources, experience and time. Think of it as a barn raising with smoke and flame.”198 However, these associations are mostly located in the southeastern and midwestern states; many parts of the western states have few or none.199 V. LEGAL IMPEDIMENTS TO PRESCRIBED FIRE The National Association of State Foresters and the Coalition of Pre- scribed Fire Councils have listed these nine categories of impediments to prescribed burns:200 194. See generally Robert H. Thomas, Evaluating Emergency Takings: Flattening the Economic Curve, 4 WM. & MARY BILL RTS. J. 1145 (2021); Brian Angelo Lee, Emergency Takings, 114 MICH. L. REV. 391 (2015). 195. Karen Bradshaw & Monika U. Ehrman, Cloud Seeding, Wildfire Smoke Emissions and Solar Geoengineering: Why Is Climate Modification Unregulated?, 35 GEO. ENV’T L. REV. 459, 475 (2023). 196. Casey J. Fleming et al., Conflict and Collaboration in Wildfire Management: The Role of Mission Alignment, 75 PUB. ADMIN. REV. 445, 448 (2015). 197. Rhonda Wise, Prescribed burn associations ignite the future, U.S. FOREST SERV. (Mar. 27, 2024), https://www.fs.usda.gov/about-agency/features/prescribed-burn-associations-ignite- future [On File with the Columbia Journal of Environmental Law]. 198. M.R. O’Connor, There’s a Simple Way to Stop Dangerous Wildfires, N.Y. TIMES (Nov. 26, 2024), https://www.nytimes.com/2024/11/24/opinion/wildfires-new-york-new-jersey-pre- scribed-burn.html [On File with the Columbia Journal of Environmental Law]. 199. Prescribed Burn Associations Interactive Map, GREAT PLAINS FIRE SCI. EXCH., https://gpfirescience.org/prescribed-burn-associations/ [https://perma.cc/93F7-JUE8] (last visited Jan. 19, 2025). 200. MARK A. MELVIN, NAT’L ASS’N OF STATE FORESTERS & COAL. OF PRESCRIBED FIRE COUNCILS, 2021 NATIONAL PRESCRIBED FIRE USE SURVEY REPORT 5 (2023). 244 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 50:S Several of these categories involve the design and application of laws. A. Regulation of Prescribed Fire 1. Clean Air Act Burning wood creates air pollution; smoke is its most visible mani- festation. Unfortunately, the way EPA is implementing the federal Clean Air Act (CAA) gets in the way of the optimal amount of burning. As just shown, a major reason that wildfires have become so serious is the accumulation of fuel, and small prescribed fires are a major way to prevent this accumulation. Prescribed fires reduce the number and severity of wildfires and also minimize the quantity of smoke pro- duced per acre.201 Prescribed fires can be planned for days with fa- vorable weather conditions; in contrast to wildfires which often hap- pen on hot, dry days when the fuels will more completely combust and the air is stagnated, trapping it close to the ground. Natural fires require no permits and are generally disregarded in the air pollution regulation scheme. Prescribed fires are treated much differently. Under the CAA, anyone wishing to carry out a prescribed burn must get approval either from EPA or from a state agency to which EPA has delegated this CAA program. 201. Unless otherwise noted, this section is derived from Kirsten H. Engel, Perverse Incentives: The Case of Wildfire Smoke Regulation, 40 ECOLOGY L. Q. 101, 628 (2013). 2025] Wildfire Smoke and U.S. Law 245 The real benefits of prescribed fires in reducing large wildfires are disregarded in the CAA permitting scheme as implemented by EPA. The favorable treatment of natural over prescribed fires induces air pollution regulators to disfavor prescribed fires, as they may annoy residents with their smoke. Applications to conduct prescribed burns may languish, while the fuel accumulates awaiting the next spark. Congress and EPA have moved to reduce one of the CAA impedi- ments to prescribed fires through the “exceptional events” rule. This requires some explanation. Wildfire smoke might push the area, in a regulatory sense, into or toward “nonattainment status,” meaning the air is so persistently dirty that it is in violation of the health-based National Ambient Air Quality Standards (NAAQS).202 The CAA restricts industrial develop- ment in nonattainment areas.203 If wildfire smoke is considered in designating nonattainment areas, new industries that will emit some pollution might not be able to locate there.204 Moreover, when an area is given nonattainment status, the state must develop a “state imple- mentation plan” (SIP).205 These SIPs impose additional requirements that, once approved by EPA, can be enforced, including by citizen suits.206 As a result, states and industry very much dislike nonattain- ment status. The CAA requires extensive air quality monitoring and modeling to determine whether a region is in nonattainment status and what the SIP must include to clean up its air.207 Going back to the early days of the CAA and of EPA in the 1970s, EPA issued various guidance docu- ments concerning how to treat “exceptional events.” In 1998 EPA adopted guidance that encouraged states to adopt smoke manage- ment plans; a state with such a plan might be able to claim exceptional event status for wildfires and prescribed burns, meaning the smoke from these fires would not count in finding nonattainment.208 Accord- ing to one account, the principal advocate of giving CAA relief to ex- ceptional events was Senator James Inhofe (R-OK), who also gained 202. 42 U.S.C. § 7407(d). 203. 42 U.S.C. §§ 7501–06. 204. D. W. Schweizer1 & R. Cisneros, Forest fire policy: change conventional thinking of smoke management to prioritize long-term air quality and public health, AIR QUALITY, ATMOSPHERE & HEALTH, Apr. 2016, at 33–36. 205. 42 U.S.C. § 7410(a)(1). 206. 42 U.S.C. § 7604(a). 207. 42 U.S.C. §§ 7403(c), 7410(a)(2)(B). 208. Emily Williams, Reimagining Exceptional Events: Regulating Wildfires Through the Clean Air Act, 96 WASH. L. REV. 765, 782–84 (2021). 246 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 50:S notoriety as the leading climate denier in Congress.209 In 2005, as part of a transportation bill that went through a committee that Senator Inhofe chaired,210 Congress amended the CAA to explicitly allow EPA to exclude the monitoring results from “exceptional events” in its at- tainment determinations.211 The amendment defines an exceptional event as one that "affects air quality," is "not reasonably controllable or preventable," and is "caused by . . . activity that is unlikely to recur at a particular location."212 But, under this provision, even a recurring event such as a wildfire can be "exceptional" if it is a "natural event."213 Areas may still be considered to be in attainment even if their pollutant levels, as measured by monitoring devices, exceed the NAAQS if that is due to exceptional events. Pursuant to the 2005 amendment, EPA adopted regulations in 2007 that treat both wild- fires and prescribed burns as exceptional events such that their emis- sions do not need to be considered in making nonattainment determi- nations or in writing SIPs if the states establish that certain conditions have been met.214 Environmental groups challenged this in court, but the D.C. Circuit upheld EPA rule.215 In doing so the court deferred to EPA’s interpretation of the CAA using the “Chevron doctrine.”216 (In 2024 the Supreme Court famously overruled the Chevron doctrine.217 It is unknown whether this will lead to a reopening of the interpreta- tion of the CAA’s exceptional events provision.) EPA amended these regulations in 2016, making them lengthier and more involved, but still allowing both wildfires and prescribed burns to be treated as exceptional events, provided many conditions are met.218 One of these conditions is that the state must either certify that it has adopted and is implementing a smoke management pro- gram, or show that certain listed smoke management practices were 209. Molly Peterson, Dillon Bergin & Emily Zentner, What you need to know about the loophole hiding the extent of US wildfire pollution, GUARDIAN (Oct. 16, 2023), https://amp.theguard- ian.com/us-news/2023/oct/16/epa-rule-responsible-for-wildfire-smoke-not-reported-ameri- cans-health [https://perma.cc/NSJ2-7T83]. See JAMES INHOFE, THE GREATEST HOAX: HOW THE GLOBAL WARMING CONSPIRACY THREATENS YOUR FUTURE (2012). 210. Safe Accountable Flexible Efficient Transportation Equity Act of 2005, Pub. L. No. 109- 59, § 6013. 211. 42 U.S.C. § 7619(b). 212. 42 U.S.C. § 7619(b)(1)(A). 213. 42 U.S.C. § 7619(b)(1)(A)(iii). 214. 40 C.F.R. § 50.14; Treatment of Data Influenced by Exceptional Events, 72 Fed. Reg. 13560 (Mar. 22, 2007). 215. Nat. Res. Def. Council v. Env’t Prot. Agency, 896 F.3d 459, 461 (D.C. Cir. 2018). 216. Chevron U.S.A. Inc. v. Nat. Res. Def. Council, 467 U.S. 837 (1984). 217. Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244 (2024). 218. Treatment of Data Influenced By Exceptional Events, 81 Fed. Reg. 68216 (Oct. 3, 2016). 2025] Wildfire Smoke and U.S. Law 247 employed.219 It is so “technically complicated and resource intensive” to demonstrate that all the conditions have been met that between December 2012 and August 2022, not a single state, local or tribal agency submitted an exceptional event demonstration for a pre- scribed burn.220 The final report of the Congressionally-mandated Wildland Fire Mitigation and Management Commission recom- mended that this process be eased, but its only specific suggestion for achieving that was providing more resources to agencies.221 In practice, in the words of one commentator, “the exceptional event regulations broadly exempt wildfire smoke and narrowly ex- empt prescribed burn smoke.”222 In summary, she found: Under the EPA’s regulations, pollution from wildfire smoke meets the requirements for an exceptional event simply because it comes from a wildfire. If the event recurs and a mitigation plan is required, these plans do not require states to consider the underlying cause of wildfires and are generally not federally enforceable; therefore, they do not meaningfully mitigate the risk of harm to human health caused by wildfire smoke. On the other hand, the regulations re- quire complicated procedures to receive an exceptional event desig- nation for prescribed burns. Further, mitigation plan regulations do not recognize that prescribed burns can reduce the frequency and intensity of wildfires.223 This last point is key. We should encourage prescribed fires; while they cause smoke in the short term, they greatly reduce smoke in the long term by reducing the size and frequency of wildfires. Instead, current EPA rules discourage prescribed fires by, among other things, making it difficult to obtain “exceptional events” status, while wild- fires have a free ride. This policy also gives a free ride to some industrial polluters. As shown above, air pollution sources in nonattainment areas are subject to stricter controls than those in attainment areas. Some places often have unhealthy levels of air quality due to a combination of industrial and motor vehicle pollution and wildfire smoke, but the wildfire 219. 40 C.F.R. § 50.14(b)(3)(ii)(A), 40 C.F.R. § 51.930. 220. U.S. GOV’T ACCOUNTABILITY OFF., WILDFIRE SMOKE: OPPORTUNITIES TO STRENGTHEN FEDERAL EFFORTS TO MANAGE GROWING RISKS 40, 74 n.6 (2023); similarly, CTR. FOR L., ENERGY, & THE ENV’T, UNIV. OF CAL., BERKELEY L. SCH., SCOPING THE PUBLIC HEALTH IMPACTS OF WILDFIRE 34–35 (2024); En- gel, supra note 201, at 652. 221. ON FIRE: THE REPORT OF THE WILDLAND FIRE MITIGATION AND MANAGEMENT COMMISSION, 97– 99 (2023). 222. Williams, supra note 208, at 785. 223. Williams, supra note 208, at 791. See also, Gregory Pelletier, Fighting Fire With Fire: Ex- panding the Exceptional Events Rule to Make a Workable Solution for Prescribed Fires, 18 J.L. ECON. & POL’Y 384 (2023). 248 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 50:S smoke is taken out of the calculations, as if it was not there. Thus, the area preserves its attainment status, industries escape stricter regu- lation, and cars and trucks may not need to be inspected as often. While exceptional event demonstrations are rarely filed for pre- scribed burns, they have become common for wildfires. Expensive consultants are hired to argue that it was wildfires that tipped an area’s poor air over the NAAQS level, and therefore nonattainment status should be preserved. For example, in 2017 the Louisiana Mid- Continent Oil and Gas Association, representing ExxonMobil and other major industry players, paid for an exceptional events filing. This allowed the five-parish Baton Rouge area, with 800,000 people, to be deemed to be in compliance with the NAAQS. The state govern- ment was happy with the result. One state official was quoted as say- ing, “We are going full bore on this one. . . . Use whatever or whoever you need to get the information we need to prove” that wildfires were to blame for the poor air quality.224 Similarly, in 2023, EPA determined that the Detroit, Michigan area was in attainment for the ozone NAAQS. Some of the air monitors had shown violations of the NAAQS, but EPA found that was caused by smoke from Canadian wildfires, and therefore qualified as an excep- tional event.225 A nonattainment finding could have triggered, among other things, a mandatory vehicle inspection program for the region’s 4.8 million people.226 The Sierra Club sued EPA challenging this deci- sion.227 The American Petroleum Institute and other industry groups filed an amicus brief supporting EPA’s position. As of this writing, the case is pending before the U.S. Court of Appeals for the Sixth Circuit.228 224. Molly Peterson & Dillon Bergin, In Detroit, a ‘magic wand’ makes dirty air look clean – and lets polluters off the hook, KQED (Oct. 17, 2023), https://www.kqed.org/news/11964517/in- detroit-a-magic-wand-makes-dirty-air-look-clean-and-lets-polluters-off-the-hook [https://per ma.cc/KK9M-GMR9]. 225. Air Plan Approval; Michigan; Clean Data Determination for the Detroit Area for the 2015 Ozone Standard, 88 Fed. Reg. 32584 (May 19, 2023). 226. John Lippert & Dillon Bergin, Midwest pollution spiked dramatically this summer because of Canadian Wildfires. Now officials may erase those days from the books, CHI. TRIB. (Nov. 13, 2023), https://www.chicagotribune.com/2023/11/12/midwest-pollution-spiked-dramati- cally-this-summer-because-of-canadian-wildfires-now-officials-may-erase-those-days-from- the-books/ [On File with the Columbia Journal of Environmental Law]. 227. Petition for Review at 1, Sierra Club v. Env’t Prot. Agency, No. 23-3583 (6th Cir. July 17, 2023). 228. The Sixth Circuit heard argument in the case on December 12, 2024. Carolyn Muyskens, Sierra Club-EPA Row Has 6th Cir. Debating Smog Data, LAW360 (Dec. 12, 2024), https: //www.law360.com/articles/2273085/sierra-club-epa-row-has-6th-circ-debating-smog-data [https://perma.cc/FD59-FCCU]. 2025] Wildfire Smoke and U.S. Law 249 A journalistic investigation found that between October 2016 and October 2023, EPA agreed to 139 exceptional event determinations in 20 states, and that in more than half of these states, “industry lobby- ists and business interests pressed to make that happen.”229 This issue is likely to take on greater significance in view of the ac- tion taken by EPA on February 7, 2024 to lower the NAAQS for PM2.5 from twelve to nine micrograms per cubic meter, in light of mounting medical evidence of the adverse health effects of these lower levels.230 This will require new determinations of whether many areas of the country are still in attainment with the PM2.5 NAAQS. This may in turn lead to some new areas seeking to avoid nonattainment status claim- ing that their high levels of this pollutant are partly due to wildfire smoke.231 This possibility will not be lost on the states; the EPA rule advising states how to revise their state implementation plans in view of an earlier tightening of the PM2.5 standards mentioned the phrase “exceptional events” forty times.232 Similarly, EPA’s Federal Register explanation of its 2014 decision to lower the PM2.5 NAAQS mentioned that phrase thirty-eight times.233 An underlying irony, or perhaps one should call it a tragedy, is that the wildfires that lead to “exceptional events” determinations are no longer exceptional. Indeed, they have become routine. EPA’s Clean Air Scientific Advisory Committee has made exactly that point in urging the agency to reconsider its exceptional events rule.234 As one study concluded, “[t]he allowance of exceptional events removes the threat of non-attainment for the NAAQS but does not void the nation’s re- sponsibility to protect public health.”235 229. Molly Peterson et al., Smoke, Screened: How a Little-Known pollution rule keeps the air dirty for millions of Americans, GUARDIAN (Oct. 16, 2023), https://www.theguardian.com/us- news/2023/oct/16/epa-local-governments-dont-report-air-pollution-wildfire-smoke-data- across-us [https://perma.cc/JZR2-ECBA]. 230. Reconsideration of the National Ambient Air Quality Standards for Particulate Matter, 89 Fed. Reg. 16202 (Mar. 6, 2024). 231. OMAR M. HAMMAD, CONG. RSCH. SERV., R47652, AIR QUALITY: EPA’S 2023 PROPOSED CHANGES TO THE PARTICULATE MATTER (PM) STANDARD 1 (2023); Brian Allnutt, What the EPA’s new soot rules could mean for Detroit, PLANET DET. (Feb. 18, 2024), https://planetdetroit.org/2024/02/what- do-the-epas-new-soot-rules-mean-for-detroit/ [https://perma.cc/3YXR-DFEK]. 232. Fine Particulate Matter National Ambient Air Quality Standards: State Implementation Plan Requirements, 81 Fed. Reg. 58010 (Aug. 24, 2016). 233. Reconsideration of the National Ambient Air Quality Standards for Particulate Matter, 89 Fed. Reg. 16202 (Mar. 6, 2024). 234. Letter from Elizabeth A. (Lianne) Sheppard, Chair, Clean Air Scientific Advisory Commit- tee, to Michael S. Regan, Administrator, EPA, (Mar. 18, 2022) [On File with Columbia Journal of Environmental Law]. 235. Liji M. David, Could the exception become the rule? ‘Uncontrollable’ air pollution events in the US due to wildland fires, 16 ENV’T RSCH. LETTERS, no. 034029 (2021). 250 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 50:S A different program under the CAA that also ignores wildfire smoke is the Regional Haze Rule, which is designed to inhibit emissions that reduce visibility.236 Natural fires are not subject to this program; pre- scribed fires may escape regulation under certain specified condi- tions.237 The CAA regulates the intentional burning of wood in another com- mon context: the New Source Performance Standards for wood stoves.238 Smoke from these stoves accounts for about 8% of PM2.5 emissions in the U.S., but a much larger share in some places, such as about 59% of PM2.5 emissions in Vermont and 27% in New York.239 EPA agreed to review and potentially revise these standards in a Sep- tember 2024 settlement agreement in a suit brought by New York and several other states.240 The Inflation Reduction Act of 2022 created a 30% federal tax credit for efficient wood stoves and boilers as well as other energy efficient home improvements.241 Many states and cities have their own requirements or incentives for lower-emitting wood stoves.242 236. 42 U.S.C. §§ 7491–92. 237. 40 C.F.R. § 51.308(f)(1)(vi)(B); Madeleine Weisz, Smoke Regulation and Liability Laws: How the Current Legal Scheme Discourages the Optimal use of Prescribed Fire (N. Cal. Prescribed Fire Council 2014), https://static1.squarespace.com/static/5e013c51bf487105fe2e858f/t/ 61e0c14c1b442104e0d9ee8e/1642119500687/NCPFC+Smoke+%26+Liability+White+Paper .pdf [https://perma.cc/HP5D-983U]. 238. New Residential Wood Heaters, 40 C.F.R. §§ 60.530–39b; New Residential Hydronic Heaters and Forced-Air Furnaces, 40 C.F.R. §§ 60.5472–83. 239. Ali Sullivan, EPA Will Review Wood Stove Emissions Rules to Settle Lawsuit, LAW360 (Sept. 27, 2024), https://www.law360.com/articles/1883354/epa-will-review-wood-stove-emis- sions-rules-to-settle-lawsuit [https://perma.cc/UAV5-5QEZ]. 240. Proposed Consent Decree, N.Y. v. Regan, No. 1:23-cv-02767 (D.D.C. Sept. 26, 2024). This agreement was approved by the court on October 2, 2024. 241. 26 U.S.C. § 25C(d)(2)(B); Biomass Stoves/Boiler Tax Credit, ENERGY STAR, https://ww w.energystar.gov/about/federal-tax-credits/biomass-stovesboilers [https://perma.cc/872U- 48TV] (last visited Mar. 17, 2025); Frequently asked questions about energy efficient home im- provements and residential clean energy property credits, INTERNAL REVENUE SERV. (Apr. 17, 2024), https://www.irs.gov/credits-deductions/frequently-asked-questions-about-energy-efficient- home-improvements-and-residential-clean-energy-property-credits [https://perma.cc/JP3K- SNTY]. 242. Ordinances and Regulations for Wood-Burning Appliances, ENV’T PROT. AGENCY (Dec. 5, 2024), https://www.epa.gov/burnwise/ordinances-and-regulations-wood-burning-appliances [https://perma.cc/FH8M-MQ8V]; State Policies and Change-out Programs, ALL. FOR GREEN HEAT, https://www.forgreenheat.org/states-policy [https://perma.cc/6X52-CXYH] (last visited Mar. 17, 2025). 2025] Wildfire Smoke and U.S. Law 251 2. NEPA Another law that yields many benefits but has also impeded pre- scribed burning is NEPA.243 Signed into law by President Richard Nixon on January 1, 1970, it is the first of the great modern environ- mental laws. It is purely procedural; it requires the preparation of en- vironmental impact statements (EISs) for federal actions that could have a significant environmental impact, but it does not impose sub- stantive standards. It applies only to discretionary federal actions, such as federal funding, permits, and use of federal land. Its use is far more common in the western states, where much of the land is feder- ally owned. The Forest Service is the agency that is most pertinent in the wildfire context. The Healthy Forests Restoration Act of 2003 explicitly provides that “authorized fuel reduction projects” are subject to NEPA.244 That includes prescribed burns.245 However, such projects were subject to NEPA well before the 2003 law. On the other hand, fire suppression— the largest undertaking of the Forest Service—has never undergone NEPA analysis.246 Under NEPA, actions can receive either a “categorical exclusion,” meaning that actions of this sort have been determined never to re- quire an EIS; an environmental assessment, which is a document that helps the agency determine whether the project is of such environ- mental significance as to require an EIS or an EA. Many of the efforts to hasten the approval process for prescribed burns have involved at- tempts to provide more categorical exclusions. In 2000, the Forest Service tried to create a categorical exclusion for fuel reduction projects, but that was struck down in court.247 In 2003, 243. 42 U.S.C. §§ 4321 et seq. 244. 16 U.S.C. § 6514(a)(1). 245. The term “authorized hazardous fuel reduction project” is defined as “the measures and methods described in the definition of ‘appropriate tools’ contained in the glossary of the imple- mentation Plan.” 16 U.S.C. § 6511(2)(A). The “implementation plan,” as defined in §6511(11), is A COLLABORATIVE APPROACH FOR REDUCING WILDLAND FIRE RISKS TO COMMUNITIES AND THE ENVIRONMENT: 10-YEAR STRATEGY IMPLEMENTATION PLAN (Dec. 2006), https://www.forestsan- drangelands.gov/documents/resources/plan/10-yearstrategyfinal_dec2006.pdf [https://perma.cc/3ZDV-2NL5]. The glossary in this plan defines “appropriate tools” as “[m]ethods for reducing hazardous fuels including prescribed fire, wildland fire use, and various mechanical methods such as crushing, tractor and hand piling, tree removal (to produce com- mercial or pre-commercial products), and pruning.” Id. at 23. 246. SARAH A. CLARK, ANDREW MILLER & DON L. HANKINS, GOOD FIRE: CURRENT BARRIERS TO THE EXPANSION OF CULTURAL BURNING AND PRESCRIBED FIRE IN CALIFORNIA AND RECOMMENDED SOLUTIONS 2 (2021). 247. Sierra Club v. Bosworth, 510 F.3d 1016 (9th Cir. 2007). 252 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 50:S in the Healthy Forest Restoration Act, Congress limited the number of alternatives that the Forest Service must consider under NEPA.248 The Infrastructure Investment and Jobs Act of 2021 created a categor- ical exclusion for certain forest management activities.249 Current Forest Service regulations do include categorical exclusions for pre- scribed burning under certain circumstances.250 Many in the environ- mental community oppose categorical exclusions, as they limit envi- ronmental analysis and public participation.251 Others have proposed expansion of the categorical exclusions for prescribed burning, espe- cially “cultural burning” by tribes, since many tribes have hundreds of years of successful experience with this practice.252 Several bills have been introduced in Congress to expand the availability of categorical exclusions for prescribed fires and otherwise ease their approval.253 A provision of the Healthy Forests Restoration Act related to protec- tion of forests from insect infestation254 was held to provide a cate- gorical exclusion for two particular prescribed burn projects.255 The Consolidated Appropriations Act of 2018 created a statutory categor- ical exclusion for “Wildfire Resilience Projects” for hazardous fuel re- duction projects.256 In 2021, just prior to President Trump leaving of- fice, the Forest Service promulgated several new categorical exclusions for forest activities, including prescribed burning, “with a primary purpose of meeting restoration objectives or increasing re- silience, up to 2,800 acres.”257 In short, categorical exclusions from the NEPA process are often available. 248. 16 U.S.C. § 6514(c), (d). 249. Infrastructure Investment and Jobs Act § 40806, Pub. L. No. 117-58, 135 Stat. 1110. 250. 36 C.F.R. § 220.6(e)(6). See also DALE & BARRETT, supra note 138, at 19. 251. Stephanie Young, Categorical Exclusions: Are Agencies Silencing the Public’s Voice?, 23 NAT. RES. & ENV’T, no. 4, 2009, at 39. 252. Nina Fontana & Chris Adlam, Create a categorical exclusion in the National Environmental Policy Act (NEPA) for Cultural Burning, in Wildland Fire Policy Recommendations, FED’N OF AM. SCIENTISTS (Apr. 24, 2023), https://fas.org/publication/wildland-fire-policy-recommendations/ [On File with the Columbia Journal of Environmental Law]. See also Jane Jacoby, Fighting Fire With Fire: How NEPA’s Emphasis on Risk Prevents Prescribed Burns and Intensifies Wildfire, 52 URB. LAW. 146 (2023). 253. See, e.g., National Prescribed Fire Act of 2020, S.4625, 116th Cong.; See also Eric Biber, The Urgent Need to Address Fire Risk: We need legislative action to accelerate fire risk reduction in general, LEGAL PLANET (Jan. 10, 2025), https://legal-planet.org/2025/01/10/the-urgent- need-to-address-fire-risk/ [https://perma.cc/G967-SHYM]. 254. 16 U.S.C. § 6591b. 255. Wild Watershed v. Hurlocker, 961 F.3d 1119 (10th Cir. 2020). 256. Stephen Sepp Wildfire Suppression Funding and Forest Management Activities Act, Pub. L. No. 115-141, div. O, tit. II, § 202, 132 Stat. 1062 (2018) (current version at 16 U.S.C. § 6591(d)). 257. 36 C.F.R. § 220.6(e)(25). See also Barbara, supra note 162, at 349. 2025] Wildfire Smoke and U.S. Law 253 Even if a categorical exclusion may be available, utilizing it in- volves much more than checking a box on a form. The NEPA regula- tions of the Council on Environmental Quality (CEQ) provide, “[i]f an agency determines that a categorical exclusion identified in its agency NEPA procedures covers a proposed action, the agency shall evaluate the action for extraordinary circumstances in which a normally ex- cluded action may have a significant effect.”258 The Forest Service’s list of possible “extraordinary circumstances” includes threatened or endangered species or their critical habit, wetlands, “American Indian or Alaska Native religious or cultural sites,” and others.259 It can take months to determine if any of these circumstances are present. The NEPA process is lengthy. A study of Forest Service fuel treatment projects for the period 2006 to 2017 found that more than 81% received categorical exclusions, but the paperwork for even those took an average of 208 days. The average NEPA duration for projects receiving environmental assessments was 572 days; for those receiving EISs, it was 1,194 days.260 Further time is consumed between the completion of the NEPA process and the actual fuel treat- ment. For prescribed burn projects with an EIS, the time between in- itiation of the NEPA process and the start of actual burning was 7.2 years.261 To be fair, many of these projects involved not only pre- scribed burns but also large-scale timber harvests.262 Several attempts have been made to shorten the process. The Fiscal Responsibility Act of 2023, which resolved that year’s debt ceiling cri- sis, amended NEPA to require EISs to be completed within two years after a determination that one is necessary, with limited opportunities for extensions and with page limits.263 Time will tell how well this works. There can also be greater use of programmatic EISs or other tech- niques that allow proposed burns or other fire management tech- niques that take place in similar kinds of ecosystems to be considered together, without requiring a new EIS for each project.264 258. 40 C.F.R. § 1501.4(b). In November 2024 a court ruled, in a 2-1 vote, that CEQ did not have the authority to issue binding regulations under NEPA. Marin Audubon Soc’y v. Fed. Avia- tion Admin., No. 23-1067 (D.C. Cir. 2024). The defendants have petitioned for en banc review of this decision. 259. 36 C.F.R. § 220.6(b)(1). 260. ERIC EDWARDS & SARA SUTHERLAND, PROP. & ENV’T RSCH. CENTER, DOES ENVIRONMENTAL REVIEW WORSEN THE WILDFIRE CRISIS? 6 (2022). 261. Id. at 3. 262. See also Jacoby, supra note 252. 263. 42 U.S.C. § 4336a(g). 264. DALE & BARRETT, supra note 138, at 19. 254 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 50:S In 2008, California adopted legislation exempting much prescribed burning from the California Environmental Quality Act (CEQA), that state’s equivalent of NEPA, and made several other changes to for- estry regulation and funding.265 Disputes continue in the California legislature about whether to relax the review requirements further.266 The environmental review process is also litigious, and the NEPA issues are often tied in with other disputes. Fuel management in- volves several processes, not just prescribed burning. Mechanical thinning is often carried out, and during that process, often big trees of great commercial value are also chopped down. “Salvage logging”— going into a forest after a fire, flood, insect outbreak or other natural disturbance, and removing the damaged but still-valuable trees—is also performed. Many environmentalists argued that all this was be- coming a subterfuge for clearcutting and other destructive practices, and they turned to litigation to try to stop it, using NEPA, the ESA, the NFMA, and other laws, often with success.267 Nearly 18% of fuel treatment projects are taken to court.268 Forest Service wins 54% of its NEPA cases.269 For the period 2013–2022, the federal courts of appeals decided 66 NEPA cases involving forest man- agement; of these, 26 concerned fuel management.270 Of these 26 cases, Forest Service won 92%.271 For these fuel management cases, the median time between issuance of the challenged NEPA document and the appellate court decision was 1,053 days (about three and a half years); the range was 312 days to 2,057 days.272 Aside from the time that the NEPA and CEQA litigation takes, one study concluded that “[i]f the agency anticipates litigation, it may 265. S.B. 901, 2023–2024 Leg., Reg. Sess. (Cal. 2024). See also Dylan Sollfrank, The Effects of California SB 901 on Forest Conservation, A.B.A. (May 31, 2022), https://www.ameri- canbar.org/groups/environment_energy_resources/publications/fr/20220531-the-effects-of- california-sb901-on-forest-conservation [On File with the Columbia Journal of Environmental Law]. 266. Camille Von Kaenel, California Democrat pushes CEQA exemption for wildfire treatment, GREENWIRE (Feb. 26, 2024), https://www.eenews.net/articles/california-democrat-pushes- ceqa-exemption-for-wildfire-treatment/, [https://perma.cc/5ENV-QZLQ]. 267. Amanda M.A. Miner et al., Twenty Years of Forest Service Land Management Litigation, 112 J. FORESTRY 32 (2014); Changyou Sun & Xianchun Lia, Effects of litigation under the Endan- gered Species Act on forest firm values, 17 J. FOREST ECON. 388 (2011). 268. EDWARDS & SUTHERLAND, supra note 260, at 9. 269. Id. at 5. 270. NIKKI CHIAPPA ET AL., BREAKTHROUGH INST., UNDERSTANDING NEPA LITIGATION: A SYSTEMATIC REVIEW OF RECENT NEPA-RELATED APPELLATE COURT CASES 10–11 (2024). 271. E-mail from Nikki Chiappa, co-author of Understanding NEPA Litigation (Aug. 21, 2024) [On File with the Columbia Journal of Environmental Law]. 272. Chiappa, supra note 270. 2025] Wildfire Smoke and U.S. Law 255 engage in a more thorough regulatory analysis to reduce the chances of a challenge or the odds the proposed action will be overturned, in essence trying to construct a ‘bullet-proof NEPA.’”273 (This corre- sponds to the author’s personal experience with many non-forest pro- jects undergoing review under NEPA and its state equivalents.) Some of the environmental battles over fuel treatment can go on for many years. For example, in 2005, the Forest Service concluded that fuel buildup in the Gallatin National Forest in Montana endangered private homes and campgrounds near a lake. It decided to engage in thinning and prescribed burning of about 1,750 acres. The Native Ecosystems Council sued, alleging that the studies under NEPA were inadequate. Then, grizzly bears were listed as a threatened species under the ESA; the Forest Service conducted new studies and was sued again. The federal district court enjoined the project in 2014 be- cause the Fish & Wildlife Service had not adequately studied the pro- ject’s effects on the grizzly bear and the Canadian lynx (which itself had been listed as a threatened species after eight years of litigation). Lynx habitat enjoys special legal protection, except that some fuel treatment projects would be allowed to proceed.274 The Native Eco- systems Council said this exception did not apply and pursued further litigation, pointing to the masters thesis of a wildlife biology student at the University of Montana which concluded that the proposal would impair lynx reproduction. There were also disputes over the presence of the moose, the northern goshawk (a raptor), and the pine marten (a small furry mammal) in the area. More studies followed. In 2018 the U.S. Court of Appeals for the Ninth Circuit concluded that, while the Forest Service’s species studies were still flawed, they were good enough and the project could proceed.275 In September 2023, the Na- tive Ecosystems Council sued again, alleging that the Fish & Wildlife Service violated NEPA, the ESA and other laws by authorizing a tree- cutting and burning project that would eliminate thousands of acres of lynx habitat.276 The parties settled the case in April 2024, nineteen years after Forest Service had concluded that the forest thinning was needed.277 In 2020, the California Chaparral Institute and several other envi- ronmental groups sued the California Board of Forestry and Fire 273. Id. at 9. 274. Cottonwood Env’t Law Ctr. v. U.S. Forest Serv., 789 F.3d 1075 (9th Cir. 2015). 275. Native Ecosystems Council v. Marten, 883 F.3d 783 (9th Cir. 2018). 276. Native Ecosystems Council v. Platt, No. CV 23-112-M-DLC (D. Mont. Apr. 29, 2024). 277. Id. 256 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 50:S Protection challenging its vegetation management plan, which in- cluded prescribed burning. The plaintiffs said that the plan’s effect on greenhouse gas emissions and other items should have been analyzed under CEQA. The court dismissed the lawsuit, finding, “[t]he Board was not required to evaluate, as a CEQA issue, the [plan’s] efficacy in addressing the wildfire crisis in California because that is not a poten- tial environmental impact, and wildfires are part of the baseline/ex- isting environmental conditions.”278 The plaintiffs have filed an ap- peal, which is pending. Delays from litigation can have serious consequences. For example, in May 2021, Forest Service issued an environmental impact state- ment for a prescribed burn in a portion of the Helena National Forest in Montana. Some of the landowners sued. The U.S. District Court set a hearing for October 2023, but in July 2023 approximately 45% of the project area burned.279 As a report from the Karuk Tribe found, “all prescribed fire and cul- tural burning activities must be consistent with the underlying land use or land use management plans established by the federal agencies. This advanced planning requirement is often where prescribed fire and cultural burning can face significant NEPA review. For instance, National Forests in California have been updating their Forest Plans to better allow prescribed and managed fire use; even for relatively small amendments, the NEPA process has taken multiple years.”280 Another point about the relationship between NEPA and wildfires should be mentioned. The EISs and other NEPA review documents for forestry projects that involve prescribed fires often include extensive discussion of smoke impacts and the ways that they will be moni- tored.281 Public comments often object to the smoke impacts. Some 278. Cal. Chaparral Inst. v. Bd. of Forestry and Fire Prot., No. 37-2020-00005203-CU-TT-CTL, at 2 (Cal. Super. Ct. San Diego Cnty. Nov. 9, 2023). 279. The Role of NEPA in the States of Washington, Oregon, Idaho, Montana and Alaska: Hearing Before the H. Comm. on Resources, 109th Cong. 3–4 (2005) (statement of Abigail R. Kimbell, Re- gional Forester, U.S. Forest Service), https://www.fs.usda.gov/sites/default/files/leg- acy_files/media/types/testimony/042305.pdf [On File with the Columbia Journal of Environ- mental Law]. 280. CLARK, supra note 246, at 2. 281. See, e.g., U.S. FOREST SERV., SUPPLEMENTAL INFORMATION REPORT: BOUNDARY WATERS CANOE AREA WILDERNESS FUEL TREATMENT FINAL ENVIRONMENTAL IMPACT STATEMENT (Apr. 2016) (multiple pages), https://www.fs.usda.gov/Internet/FSE_DOCUMENTS/fseprd518251.pdf [On File with the Columbia Journal of Environmental Law]; BUREAU OF LAND MGMT., PROGRAMMATIC ENVIRONMENTAL ASSESSMENT: STATEWIDE WILDLAND URBAN INTERFACE FUELS TREATMENTS 33–42 (2023), https://eplanning.blm.gov/public_projects/2016583/200502688/20083595/250089 777/Final%20Programmatic%20EA%20SWFT_07AUG2023.pdf [https://perma.cc/DQX9-KC 2025] Wildfire Smoke and U.S. Law 257 of the agency responses to these comments address the tradeoffs. For example, the review document for a forestry project in Arizona stated: From a quality of life perspective, smoke emissions would be inevi- table under all alternatives – whether from prescribed burns or wildfire. The degree (intensity and duration) of emissions, how- ever, are variable. With prescribed burns, burn plans are devel- oped, which helps to minimize adverse effects to quality of life in nearby communities. The Forest Service is required to work with the Arizona Department of Environmental Quality (ADEQ) to en- sure that smoke impacts to human health are avoided or mini- mized. In contrast, wildfires are by definition unplanned. The com- munity smoke effects from wildfire can range from negligible to severe. The advance notice associated with prescribed burns al- lows individuals with acute sensitivity to smoke (e.g., asthmatics) to engage in averting behavior, which reduce the negative quality of life impacts.282 This response is a reasonable way to deal with adverse comments. However, it does not necessarily assuage public concerns. 3. State Approvals At least 37 states have their own permitting systems for prescribed fires.283 They vary considerably in what kinds of burns require per- mits vs. simply notice, how far in advance a permit must be sought or notice provided, what agency grants the permit, what conditions ap- ply, who else must be notified, and other factors.284 In California, this involves registering the burn with the air district (the local office that runs the air pollution programs); obtaining a burn permit; submitting a smoke management plan; and obtaining air district approval for the FP]; U.S. FOREST SERV., ENVIRONMENTAL ASSESSMENT: WHITE ROCK PRESCRIBED BURNING PROJECT (2013), https://www.fs.usda.gov/Internet/FSE_DOCUMENTS/stelprdb5416990.pdf [On File with the Columbia Journal of Environmental Law]; U.S. FOREST SERV., FINAL ENVIRONMENTAL IMPACT STATEMENT, FOREST HEALTH AND RESTORATION PROJECT, NATIONAL FORESTS IN ALABAMA, BANKHEAD NATIONAL FOREST, FRANKLIN, LAWRENCE, AND WINSTON COUNTIES, ALABAMA (2003), https://www.fs.usda.gov/Internet/FSE_DOCUMENTS/stelprdb5157290.pdf [On File with the Columbia Journal of Environmental Law]. 282. U.S. FOREST SERV., FINAL ENVIRONMENTAL IMPACT STATEMENT FOR THE FOUR-FOREST RESTORATION INITIATIVE WITH ERRATA AND OBJECTION RESOLUTION MODIFICATIONS, VOLUME 1, COCONINO AND KAIBAB NATIONAL FORESTS, COCONINO COUNTY, ARIZONA 136 (2015), https://www. fs.usda.gov/Internet/FSE_DOCUMENTS/stelprd3836625.pdf [On File with the Columbia Jour- nal of Environmental Law]. 283. MARK A. MELVIN, COALITION OF PRESCRIBED FIRE COUNCILS, 2018 NATIONAL PRESCRIBED FIRE USE SURVEY REPORT 9 (2018). 284. SCHULTZ, supra note 190, at 14 tbl. 1 (“State-by-State Overview of Air Quality Regulatory Process and Interagency Relationships to Support Burning”). 258 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 50:S plan.285 The air district may delay issuing the approvals if the air qual- ity that week is already bad, if the neighbors of the proposed burn ob- ject, if the air district is short staffed, or for any number of other rea- sons.286 However, California has adopted a new automated system for parts of the state that integrates smoke and air permitting; it has cut permitting time dramatically.287 California has also issued detailed regulations for each of fifteen air basins specifying the meteorological conditions during which permits for agricultural or prescribed burns may take place.288 California is one of the states where the permit program is partly a matter of state law and partly to administer EPA’s program. In some other states, there is no delegation agreement with EPA and the state is purely operating its own program. Florida is an example of a state that operates its program on its own. The procedure there is simpler than California’s (burns in the national forests in Florida are subject to U.S. Forest Service rules). Landown- ers must register with the Florida Forest Service (FFS) and get a cus- tomer number; then on the day they want to burn, they contact the FFS and request a burn authorization. The FFS will then “plot your burn on a map and generate a smoke plume for your burn to make sure there are no potential problems with the smoke.”289 The FFS is- sues approximately 88,000 authorizations each year.290 FFS has de- tailed regulations on how and when burning is to be carried out.291 Some local jurisdictions in Florida have their own requirements.292 State agencies are more subject than EPA to local political pres- sures. Many years of fire suppression policies meant fires were put 285. CAL. AIR RES. BD., FACT SHEET: PRESCRIBED BURNING AND SMOKE MANAGEMENT (2003), https://www.sierraforestlegacy.org/CF_ManagingFire/CARBFactSheet.pdf [https://perma.cc/9X3D-6V53]. 286. Elizabeth Shogren, A Century of Fire Suppression is Why California is in Flames, MOTHER JONES (Dec. 12, 2017), https://www.motherjones.com/environment/2017/12/a-century-of- fire-suppression-is-why-california-is-in-flames/ [On File with the Columbia Journal of Environ- mental Law]. 287. DALE & BARRETT, supra note 138, at 20. 288. CAL. CODE REGS. tit. 17, §§ 80179 et seq. (2025). 289. Steps to get a prescribed burning authorization in Florida, FLA. FOREST SERV., https://ccme- dia.fdacs.gov/content/download/39865/file/prescribed_burning_authorization_steps.pdf [https://perma.cc/7UZU-3WY9] (last visited Mar. 19, 2025). 290. Prescribed Fire in Florida, FLA. FOREST SERV., https://www.fdacs.gov/Forest-Wild- fire/Wildland-Fire/Prescribed-Fire [https://perma.cc/3F5J-GV2B] (last visited Mar. 19, 2025). 291. FLA. ADMIN. CODE ANN. r. 5I ch. 2. 292. Prescribed Burning Regulations/Local Ordinances and Contacts, UNIV. OF FLA. IFAS EXTENSION, https://programs.ifas.ufl.edu/florida-land-steward/planning-and-assistance/envi- ronmental-regulations/prescribed-burning-regulations/ [https://perma.cc/ND88-B6HM] (last visited Mar. 17, 2025). 2025] Wildfire Smoke and U.S. Law 259 out quickly and prescribed fires were banned; this created a public expectation of no smoke, and so anything that will create smoke is ob- jectionable. All this leads to pressures to deny or sit on permits for prescribed burns. But California and Florida have shown that it is pos- sible to design a program that approves prescribed burns fairly quickly. B. Liability The actual or perceived liability of companies, governments and in- dividuals can inhibit the use of prescribed burns. 1. Emissions There is very little caselaw on the liability of the sources of wildfire smoke per se (as opposed to the liability of those who started or oth- erwise caused the fires). There are numerous attempts to hold greenhouse gas emitters fi- nancially liable for the impacts of climate change. So far none of them has succeeded in leading to an award of money damages.293 However, this is because of various legal issues such as choice of venue, preemp- tion, and separation of powers, and not because of lack of evidence that climate change is causing damage. A few of these cases explicitly connect to wildfires; all of them are still in their early stages. The Union of Concerned Scientists issued a report in 2023 that drew on scientific studies that found that wildfire conditions were wors- ened by climate change, and “attribute[d] portions of the observed in- creased in fire-danger conditions and burned forest area across the western United States and southwestern Canada . . . to the world’s 88 largest fossil fuel companies . . . and cement manufacturers.”294 The report found that “37 percent of the cumulative burned forest area in western North American since 1986 can be traced to carbon emis- sions from these companies’ products,”295 and it listed the top ten fos- sil fuel producers in terms of the carbon emissions from each. Saudi Aramco was Number 1, at 3.40%; Chevron was Number 2, at 3.06%.296 293. JOANA SETZER & CATHERINE HIGHAM, GRANTHAM RSCH. INST. ON CLIMATE CHANGE & THE ENV’T & SABIN CTR FOR CLIMATE CHANGE LAW, GLOBAL TRENDS IN CLIMATE CHANGE LITIGATION: 2024 SNAPSHOT 31–32 (2024). 294. UNION OF CONCERNED SCIENTISTS, THE FOSSIL FUELS BEHIND FOREST FIRES: QUANTIFYING THE CONTRIBUTION OF MAJOR CARBON PRODUCERS TO INCREASING WILDFIRE RISK IN WESTERN NORTH AMERICA 1 (2023). 295. Id. at 1. 296. Id. at 2. 260 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 50:S In 2023, Multnomah County, Oregon sued thirteen oil, gas and coal companies, two industry associations, and a consulting firm in Oregon state court for $51.55 billion in damages from wildfires and extreme heat.297 The complaint cited the just-described work of the Union of Concerned Scientists.298 The suit is still in its early stages. In 2020, the County of Maui, Hawaii sued twenty oil companies, al- leging that the GHG emissions from the use of their products was caus- ing damages. The complaint mentioned the word “wildfires” seven- teen times (but not wildfire smoke), and alleged that GHG emissions were increasing the frequency and intensity of wildfires.299 This case is now being considered together with a similar lawsuit filed by the City and County of Honolulu.300 Honolulu’s original complaint (also filed in 2020) mentioned wildfires only once.301 In October 2023, the Hawaii Supreme Court denied defendants’ motion to dismiss these cases without mentioning wildfires.302 In January 2025, the U.S. Su- preme Court denied the defendants’ petition for certiorari in this case. So far it appears that the wildfire that devastated Maui in August 2023 has not played a role in this litigation, though there was press specu- lation at the time that it would.303 In 2020, six Portuguese youth filed a complaint with the European Court of Human Rights against thirty-three European countries claim- ing that their GHG emissions had contributed to forest fires in Portu- gal.304 In 2024, the court dismissed the case, largely on the grounds that it should have been brought in the courts of Portugal, and that those courts might not have jurisdiction outside their country.305 297. Complaint at 173–74, Cnty of Multnomah v. Exxon Mobil Corp., No. 23CV25164 (Or. Cir. Ct. Oct. 7, 2024). 298. Id. at 111 n.245, 135 n.279, 144 n.300, 151 n.314. 299. Complaint, Cnty of Maui v. Sunoco LP, No. 2CCV-20-0000283 (Haw. 2d Cir. Ct. Oct. 12, 2020). 300. The Sabin Center’s Climate Change Litigation Database posts relevant orders as they be- come available. See City & County of Honolulu v. Sunoco LP, CLIMATE CASE CHART, https://climate- casechart.com/case/city-county-of-honolulu-v-sunoco-lp/ [https://perma.cc/U4N6-Y4L4] (last visited Mar. 18, 2025). 301. Complaint at 89, City and Cnty of Honolulu v. Sunoco LP, No. 1CCV-20-0000380 (Haw. 1st Cir. Ct. Mar. 9, 2020). 302. City and Cnty of Honolulu v. Sunoco LP, No. 1CCV-20-0000380 (Haw. S. Ct. Oct. 31, 2023). 303. Hiroko Tabuchi, In 2020, Maui Sued Big Oil Over Fire Risks. Now, the Suit Has New Weight, N.Y. TIMES (Aug. 19, 2023), https://www.nytimes.com/2023/08/18/climate/maui-fires-law- suit.html [On File with the Columbia Journal of Environmental Law]. 304. Duarte Agostinho and Others v. Portugal, Application No. 39371/20 (Eur. Ct. H.R. Apr. 9, 2024). 305. Id. at 73. 2025] Wildfire Smoke and U.S. Law 261 Professor William Boyd has proposed a novel liability scheme for wildfire smoke. He “would impose strict liability for CO2 emissions from all unplanned wildfires on federal lands.”306 Emissions from pre- scribed burning would not be subject to liability. The government would pay the social cost of carbon for the emissions of wildfires. At the time of his article, the figure used by the government was $51 per metric ton of CO2.307 At that figure, Boyd estimated that on the order of $6 billion per year would be generated,308 which he proposes to come from the general federal treasury, not agency budgets.309 This system would help pay for long-term investments in forest restora- tion and resilience. A related issue in assigning liability is that wildfires may cause the release of hazardous substances into the environment, contaminating other locations. The Government Accountability Office has identified at least 234 nonfederal National Priorities List sites (also known as Superfund sites) located in areas in the contiguous United States that have high or very high wildfire hazard potential.310 Fires have swept across some of these sites, though it is not clear whether the smoke carried away toxic substances.311 Wildfires have also come very close to several sites that have a great deal of nuclear material, including the Los Alamos National Laboratory in New Mexico, the Santa Susana Field Laboratory in southern California, and the Pantex Plant (where 306. William Boyd, Climate Liability for Wildfire Emissions from Federal Forests, 48 ECOLOGY L.Q. 981, 1009 (2021) (emphasis in original). 307. Id. at 1011. The value of the social cost of carbon is highly contested, based on such factors as the discount rate used; the array of damages that are considered; and whether global damages or only damages within the U.S. are considered. At the end of the first Trump admin- istration, it was $1. Paul Voosen, Trump downplayed the costs of carbon pollution. That’s about to change, SCIENCE (Jan. 22, 2021), https://www.science.org/content/article/trump-down- played-costs-carbon-pollution-s-about-change [On File with the Columbia Journal of Environ- mental Law]. The Biden administration raised it to $190. Coral Davenport, Biden Administration Unleashes Powerful Regulatory Tool Aimed at Climate, N.Y. TIMES (Dec. 2, 2023), https://www.ny- times.com/2023/12/02/climate/biden-social-cost-carbon-climate-change.html [On File with the Columbia Journal of Environmental Law]. In late 2024 several economists argued it should be $283. Frances C. Moore et al., Synthesis of evidence yields high social cost of carbon due to structural model variation and uncertainties, 121 PROC. NAT’L ACAD. SCIS., no. e2401733121, at 1 (2024). The second Trump administration is expected to lower it again. 308. Boyd, supra note 306, at 1011. 309. Id. at 1008. 310. U.S. GOV’T ACCOUNTABILITY OFF., SUPERFUND: EPA SHOULD TAKE ADDITIONAL ACTIONS TO MANAGE RISKS FROM CLIMATE CHANGE 26 (2019), https://www.gao.gov/assets/710/702306.pdf [https://perma.cc/F3WW-ETZ3]. 311. Michael Kodas & David Hasemeyer, Wildfires fueled by climate change threaten toxic Su- perfund sites, NBC NEWS (Dec. 23, 2020), https://www.nbcnews.com/news/us-news/wildfires- fueled-climate-change-threaten-toxic-superfund-sites-n1252156 [https://perma.cc/2GX4-PR 69]. 262 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 50:S nuclear weapons are disassembled) in Texas, though the fires did not actually reach the sites.312 If toxic contamination was spread by a wildfire, the caselaw would not seem to support liability under the Comprehensive Environmental, Response, Compensation, and Liabil- ity Act,313 as smoke from burning has not been deemed to be dis- posal.314 However, if severe enough, it could lead to cleanup obliga- tions for the owners of the land where the contamination comes to rest. 2. Starting Intentional Fires Fear of potential liability is one of the major factors that inhibits government employees as well as private landowners from undertak- ing prescribed fires.315 One examination concluded that “the proba- bility of escape of a prescribed fire is below 1%, with most escaped fires being minimal in size, presenting almost zero risk of fatality and minimal risk of insurance claims or lawsuits.”316 The Forest Service says that 99.84% of its prescribed fires go according to plan.317 There are some notable exceptions, however. One fire escaped from a wild- life management area in Florida in 2008 combined with unusual weather conditions to impair visibility on a nearby interstate highway so severely that seventy cars and trucks piled up, with five deaths and thirty-eight injuries.318 In April 2022, the Forest Service started a pre- scribed fire in the Santa Fe National Forest; it exploded into the largest fire in New Mexico’s history. In releasing a report analyzing the agency’s failures concerning this event, the chief of the Forest Service wrote, “[c]limate change is leading to conditions on the ground we have never encountered. We know these conditions are leading to 312. Tammy Webber, Sites with radioactive material more vulnerable as climate change in- crease wildfire, flood risks, L.A. TIMES (May 22, 2024), https://www.latimes.com/world-na- tion/story/2024-05-25/sites-with-radioactive-material-more-vulnerable-as-climate-change- increases-wildfire-flood-risks [https://perma.cc/EEA8-VTHP]. 313. 42 U.S.C. § 9607. 314. Pakootas v. Teck Cominco Metals, Ltd., 830 F.3d 975 (9th Cir. 2016). 315. Rebecca K. Miller, Christopher B. Field & Katharine J. Mach, Barriers and enablers for pre- scribed burns for wildfire management in California, 3 NATURE SUSTAINABILITY 101 (2020); John R. Weir et al., Liability and Prescribed Fire: Perception and Reality, 72 RANGELAND ECOLOGY & MGMT. 533 (2019); SCHULTZ, supra note 190, at 20–21. 316. Weir, supra note 315, at 536; Tania Schoennagel, et al., Adapt to more wildfire in western North American forests as climate changes, 114 PROC. NAT’L ACAD. SCIS. 4582 (2017). 317. Randy Moore, From the Chief’s Desk: Reviewing our prescribed fire program, U.S. FOREST SERV. (May 20, 2022), https://www.fs.usda.gov/inside-fs/leadership/chiefs-desk-reviewing- our-prescribed-fire-program [On File with the Columbia Journal of Environmental Law]. 318. McCullers, supra note 106, at 591. 2025] Wildfire Smoke and U.S. Law 263 more frequent and intense wildfires. Drought, extreme weather, wind conditions and unpredictable weather changes are challenging our ability to use prescribed fire as a tool to combat destructive fires.”319 Ranchers frequently set fires on their own property to clear land and for other purposes.320 Liability standards vary state by state for injuries caused by prescribed burns. In many states landowners may be liable in simple negligence if the fire they set causes damage outside their property. Eleven states have instead adopted a gross negligence standard, making it more difficult for an injured party to recover.321 Notably, a South Carolina law, adopted in 2012, applies the gross negligence standard only to liability caused by the smoke resulting from a prescribed fire.322 A Florida law applies this standard only if the burn was carried out by a “certified prescribed burn man- ager.”323 (At least seven other states provide heightened liability pro- tection for certified burners.324) A California law establishes a Pre- scribed Fire Claims Fund, which will provide coverage for losses where prescribed or cultural burns escape.325 On the other hand, four 319. U.S. FOREST SERV., Statement from Chief Randy Moore on Hermit’s Peak Fire Review (June 21, 2022), https://www.legistorm.com/stormfeed/view_rss/3328855/organization/33661 /title/statement-from-chief-randy-moore-on-hermits-peak-fire-review.html [https://perma.cc /T4QX-UWXB]. See also Colleen Hagerty, The Government Set a Fire in New Mexico. It burned 341,735 Acres, ROLLING STONE (Mar. 10, 2024), https://www.rollingstone.com/politics/politics- features/calf-canyon-hermits-peak-fire-new-mexico-prescribed-burn-1234982093/ [On File with the Columbia Journal of Environmental Law]. 320. Prescribed burning is a tradition for Floridians, ST. JOHNS RIVER WATER MGMT. DIST. (Feb. 9, 2023), https://www.sjrwmd.com/streamlines/prescribed-burning-is-a-tradition-for-floridian s/ [On File with the Columbia Journal of Environmental Law]. 321. The states are Alabama, California, Florida, Georgia, Louisiana, Michigan, Mississippi, Ne- vada, North Dakota, South Carolina, and Tennessee. CLARK, supra note 188, at 23; Jim Brenner & Dale Wade, Florida’s Revised Prescribed Fire Law: Protection For Responsible Burners, in PROCEEDINGS OF FIRE CONFERENCE 2000: THE FIRST NATIONAL CONGRESS ON FIRE ECOLOGY, PREVENTION AND MANAGEMENT 133 (K.E.M. Galley et al. eds., 2003). 322. S.C. CODE ANN. § 48-34-50 (2025). 323. Brenner & Wade, supra note 321. 324. Stephen R. Miller, The Legal Framework of Prescribed Fire: Catalogue of Findings 7–8 (Apr. 15, 2024), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4769687 [On File with the Columbia Journal of Environmental Law]. 325. Prescribed Fire Liability Claims Fund Pilot, CAL. WILDFIRE & FOREST RESILIENCE TASK FORCE, https://wildfiretaskforce.org/prescribed-fire-liability-claims-fund-pilot/ [https://perma.cc/29MY-BMHE] (last visited Mar. 12, 2025). See also Chris Adlam, Landscapes and Communities: Create Federal Indemnity Fund to cover accidental damages from cultural and prescribed fire, in WILDLAND FIRE POLICY RECOMMENDATIONS, FED’N OF AM. SCIENTISTS (2023), https://fas.org/publication/wildland-fire-policy-recommendations/ (recommending establish ment of a similar fund at the federal level). 264 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 50:S states have a strict liability standard for prescribed fire users, mean- ing they are liable regardless of the amount of care they take.326 The revised liability standard may have an impact on landowners’ willingness to conduct prescribed burns; one study found that “pri- vate landowners in counties with gross negligence liability standards burn significantly more hectares than those in counties with simple negligence standards.”327 If a prescribed fire escapes to another property, the owner of the property may seek damages using nuisance or trespass theories. Some states treat prescribed fires as nuisances; others specifically provide that prescribed fires are not a nuisance.328 The federal government is often sued when a prescribed burn es- capes. The government has sovereign immunity, but Congress has partially waived that immunity in the Federal Tort Claims Act of 1948. An exception to the waiver is when the injury is due to a federal em- ployee’s exercise of a “discretionary function or duty.”329 Most, but not all, of the cases have found that this “discretionary function” ex- ception applied to prescribed burns, and therefore the government was not liable under sovereign immunity. But there can be liability if the government’s plan was improper, or its agents did not follow the plan.330 As Professor Robert Keiter has written: As a legal matter, the threat of fiscal liability for fire-related damages has not proven a major impediment to federal prescribed fire policies. The modern courts have not imposed tort or takings liability on the pub- lic land agencies for their fire management decisions, save for one in- stance when agency officials negligently allowed a controlled burn to 326. The states are Connecticut, North Dakota, New Hampshire, and Oklahoma. Jonathan Yoder, Liability, Regulation and Endogenous Risk: The Incidence and Severity of Escaped Pre- scribed Fires in the United States, 51 J.L. & ECON. 297, 307 (2008). 327. Carissa L. Wonkka, William E. Rogers & Urs P. Kreuter, Legal barriers to effective ecosys- tem management: exploring linkages between liability, regulations, and prescribed fire, 25 ECOLOGICAL APPLICATIONS, no. 2382 (2015). 328. Miller, supra note 324, at 8. 329. 28 U.S.C. § 2680(a). 330. Robert H. Palmer III, A New Era of Federal Prescribed Fire: Defining Terminology and Properly Applying the Discretionary Function Exception, 2 SEATTLE J. ENV’TL L. 279 (2012); Charles H. Oldham, Wildfire Liability and the Federal Government: A Double-Edged Sword, 48 ARIZONA STATE L.J. 205 (2016); Keiter, supra note 122; Elias Kohn, Wildfire Litigation: Effects on Forest Management and Wildfire Emergency Response, 48 ENV’T L. 585 (2018); Fla. Dep’t Agric. & Con- sumer Servs. v. United States, No. 4:09-CV-386, 2010 WL 3469553 (N.D. Fla. Aug. 30, 2010); An- derson v. United States, 55 F.3d 1379 (9th Cir. 1995); Foster Logging, Inc. v. United States, 973 F.3d 1152, 1166 (11th Cir. 2020). 2025] Wildfire Smoke and U.S. Law 265 escape and destroy a residential neighborhood. But as a political matter, liability concerns are quite real.331 At least twice, Congress has passed special laws granting compen- sation when fires on federal land went out of control.332 Forest Service efforts to suppress accidental fires or its decisions to let these fires burn are, like prescribed fires, generally immune from liability under the Federal Tort Claims Act’s discretionary function ex- ception.333 However, when the Forest Service fails to carry out its own firefighting policies, such as its incident-command structure or its duty to warn those in the path of a fire, it may be held liable.334 The Court of Appeals for the Federal Circuit has held that the government might be liable for a takings claim where it started a fire on privately- owned land to block the spread of an accidental fire in a national for- est; in denying a motion to dismiss and reversing the trial-level deci- sion, the court found that “there are legitimate questions as to immi- nence, necessity, and emergency” in determining whether “the Government is allowed to take a private citizen’s property without compensation if it could just as easily solve the problem by taking its own.”335 Logging companies336 and railroads337 have been found liable for sparking wildfires. Plaintiffs have had particular success going after electric utility companies whose transmission lines pass through for- ests. About 5% of wildfire ignitions in California are from power lines, and they account for about 11% of the acres burned.338 The courts have held that under the California Constitution, if electric utility equipment causes a fire, the utility is strictly liable for the damages, 331. Keiter, supra note 122, at 358. For a subsequent finding of government liability for the escape of a prescribed burn, see Jury holds Nevada liable for 2017 wildfire that burned homes, 3NEWS (Aug. 18, 2018), https://news3lv.com/news/local/jury-holds-nevadas-forestry-divi- sion-liable-for-17-fire-that-burned-23-homes [https://perma.cc/MZ2U-HWQZ]. 332. Keiter, supra note 122, at 355–56. 333. Strawberry Water Users Ass’n v. United States, 109 F.4th 1287 (10th Cir. 2024); Miller v. United States, 163 F.3d 591, 594 (9th Cir. 1998); McDougal v. U.S. Forest Serv., 195 F. Supp.2d 1229 (D. Or. 2002); Woodward Stuckart, LLC v. United States, 973 F. Supp. 2d 1210, 1213, 1221– 22 (D. Or. 2013), aff’d, 650 F. App’x 380 (9th Cir. 2016). 334. Am. Reliable Ins. Co. v. United States, 106 F.4th 498 (6th Cir. 2024); Reed v. United States, 426 F. Supp. 3d 498, 508-511 (E.D. Tenn. 2019). 335. Trinco Investment Co. v. United States, 722 F.3d 1375 (Fed. Cir. 2013). 336. United States v. Sierra Pac. Indus., 100 F. Supp. 3d 948, 953 (E.D. Cal. 2015). 337. United States v. Union Pac. R.R. Co., 565 F. Supp. 2d 1136 (E.D. Cal. 2008). 338. CAROLYN KOUSKY ET AL., WHARTON RISK MGMT. AND DECISION PROCESSES CTR., WILDFIRE COSTS IN CALIFORNIA: THE ROLE OF ELECTRIC UTILITIES 3 (2018), https://esg.wharton.upenn.edu/wp-con- tent/uploads/2023/07/Wildfire-Cost-in-CA-Role-of-Utilities-1.pdf [https://perma.cc/7FXR- Y367]. 266 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 50:S regardless of whether it is at fault, under a theory of inverse condem- nation.339 California, and perhaps Alabama, are the only states with this doctrine.340 The costs can be extremely high; San Diego Gas & Electric Co. (SDGE) paid out $379 million for the damages from a 2007 fire, and in 2017 the California Public Utilities Commission refused to allow the utility to pass along these costs to its ratepayers, meaning the shareholders would have to pay.341 Pacific Gas & Electric (PG&E) faced even higher costs from the 2017 and 2018 wildfires; it declared bankruptcy in 2019 (again) and emerged in 2020, pled guilty to eighty-four counts of involuntary manslaughter, and reached a $13.5 billion settlement with victims.342 In 2019, California enacted a law called A.B. 1054 that established a $21 billion liability fund to help utilities cover the cost of wildfires caused by their equipment; half of the fund is paid by the state’s largest utilities (PG&E, SDGE, and South- ern California Edison) and half by ratepayers.343 California utilities must create Wildfire Mitigation Plans that require the utilities to shut off power at times of very high fire risk,344 something they have done from time to time, to the great annoyance of their customers.345 The Hawaiian Electric Industries and other companies have tentatively agreed to pay more than $4 billion to resolve lawsuits involving the 2023 fire in Maui that killed 100 people—the deadliest U.S. wildfire in 339. Pac. Bell Tel. Co. v. S. Cal. Edison Co., 208 Cal. App. 4th 1400 (2012); Barham v. S. Cal. Edison Co., 74 Cal. App. 4th 744 (1999). 340. KOUSKY ET AL., supra note 338, at 6. For a discussion of the pertinent cases in Alabama, where an inverse condemnation case involving electric power companies and wildfire has ap- parently not arisen, see William Burkett, Southern Takings: Alabama Eminent Domain, Inverse Condemnation, and Regulatory Takings, 50 CUMB. L. REV. 211 (2019). 341. Jason Fordney, Wildfire Costs Ignite Worry at CPUC, Legislature, RTO INSIDER (Feb. 27, 2018), https://www.rtoinsider.com/20563-wildfire-costs-ignite-worry-at-cpuc-legislature/ [On File with the Columbia Journal of Environmental law]. 342. Ivan Penn, PG&E, Troubled California Utility, Emerges From Bankruptcy, N.Y. TIMES (July 1, 2020), https://www.nytimes.com/2020/07/01/business/energy-environment/pge-bank- ruptcy-ends.html [On File with the Columbia Journal of Environmental Law]; Ivan Penn et al., PG&E Reaches $13.5 Billion Deal with Wildfire Victims, N.Y. TIMES (Dec. 6, 2019), https://www.ny- times.com/2019/12/06/business/energy-environment/pge-wildfire-victims-deal.html [On File with the Columbia Journal of Environmental Law]. See generally KATHERINE BLUNT, CALIFORNIA BURNING: THE FALL OF PACIFIC GAS AND ELECTRIC–AND WHAT IT MEANS FOR AMERICA’S POWER GRID (2022). 343. Myanna Dellinger, Electric Utility Wildfire Liability Reform in California, 49 ENV’T L. REP. 11003 (2019). 344. MICHAEL WARA ET AL., HAMILTON PROJECT, CLIMATE CHANGE AND UTILITY WILDFIRE RISK: A PROPOSAL FOR A FEDERAL BACKSTOP 4 (2024). 345. Matt Simon, Power Shutoffs Can’t Save California From Wildfire Hell, WIRED (Oct. 8, 2019), https://www.wired.com/story/pge-california-power-outage/ [https://perma.cc/CX9H-SE49]. 2025] Wildfire Smoke and U.S. Law 267 the past century.346 Wildfires sparked by electric utilities are a grow- ing problem in many parts of the country. Stanford’s Michael Wara, a leading authority on these issues, and colleagues have proposed en- actment of a federal law, somewhat modeled after California’s A.B. 1054, that would subject utilities to a regulatory process for their fire safety measures, coupled with a risk-pooling insurance mechanism to help cover catastrophic losses.347 3. Employers The federal Occupational Safety and Health Administration (OSHA) has issued multiple regulations requiring employers to protect the safety and health of their workers, but it has no regulations on out- door smoke. In June 2023, when Canadian wildfires were causing haz- ardous air pollution in wide swaths of the U.S., both OSHA348 and the CDC349 circulated suggestions to employers to protect outdoor work- ers from the smoke, such as monitoring the AirNow.gov website to see local air quality conditions; moving work indoors if possible; reducing levels of physical activity; allowing breaks in smoke-free places; and providing the National Institute for Occupational Safety and Health (NIOSH) approved respirators and the N95 mask, which became very familiar during the height of the COVID-19 pandemic. However, these were not binding. OSHA does have a widely applicable regulation that provides that “[a] respirator shall be provided to each employee when such equipment is necessary to protect the health of such em- ployee.”350 The Occupational Safety and Health Act of 1970 (OSHA’s organic statute) has a “general duty clause,” which states that “each em- ployer…shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his 346. Jef Feeley & Mark Chediak, Hawaiian Electric Among Firms in $4 Billion Maui Fire Deal, BLOOMBERG LAW (July 19, 2024), https://news.bloomberglaw.com/insurance/hawaiian-electric- among-firms-eyeing-4-billion-maui-fire-deal [On File with the Columbia Journal of Environmen- tal Law]. 347. WARA ET AL., supra note 344, at 10. 348. OSHA National News Release, US Department of Labor urges employers to have a plan to protect outdoor workers from hazards associated with poor air quality, OCCUPATIONAL SAFETY & HEALTH ADMIN. (June 9, 2023), https://www.osha.gov/news/newsreleases/national/06092023 [On File with the Columbia Journal of Environmental Law]. 349. Maryann M. D’Alessandro et al., Protecting Workers and the Public from Wildfire Smoke, CTRS. FOR DISEASE CONTROL & PREVENTION: NIOSH SCI. BLOG (June 29, 2023), https://blo gs.cdc.gov/niosh-science-blog/2023/06/29/wildfire-smoke/ [https://perma.cc/9N6U-GUUQ]. 350. 29 C.F.R. § 1910.134(a)(2) (2025). 268 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 50:S employees.”351 This arguably requires employers to provide the sort of protections that OSHA and the CDC recommended, but it is so vague that it is difficult to enforce. One law firm has argued, “[i]n light of wildfire smoke, the General Duty Clause implies that employers must proactively engage in risk assessment, establish and implement pro- tective measures, and ensure employees are not subjected to condi- tions that could detrimentally affect their health. Employers must consider factors like air quality and visibility, especially when heavy wildfire smoke infiltrates indoor and outdoor workplaces.”352 There does not appear to be any caselaw on this issue. In August 2024, OSHA proposed its first standard for protecting out- door and indoor workers from heat, but the proposal makes no men- tion of smoke.353 This heat standard has not yet been adopted in final form. Three states have issued their own regulations requiring employers to protect workers from smoke—California, Oregon, and Washing- ton.354 The California regulations require employers to inform em- ployees of the air quality levels, to use engineering controls “when- ever feasible” such as in enclosed buildings where the air is filtered, to provide respirators if PM2.5 levels exceed a certain level, and to mandate use of respirators if levels are even higher.355 They exempt enclosed buildings and vehicles where there is adequate air filtra- tion.356 Oregon’s rules provide that during high smoke conditions ap- propriate actions include “temporarily relocating outdoor workers to available indoor areas or vehicles where the air is adequately filtered, or using portable air purifiers,” and changing employee work loca- tions and schedules “when work permits.”357 Several business groups challenged the Oregon rule in federal court on the grounds that it was unconstitutionally vague and also exceeded the issuing agency’s 351. Occupational Safety & Health Act § 5(a)(1), 29 U.S.C. § 654(a)(1). 352. Workers’ Right During Heavy Wildfire Smoke in New Jersey: A Comprehensive Guide, KOTLAR, HERNANDEZ & COHEN (Sept. 13, 2023), https://peoplefirstlawyers.com/workers-rights- during-heavy-wildfire-smoke/ [https://perma.cc/JRL8-F33M]. 353. Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings, 89 Fed. Reg. 70698 (proposed Aug. 30, 2024). 354. Kathryn P. Fletcher & Theodore G. Lee, Washington State Adopts New, Permanent Wildfire Smoke Regulations, NAT’L L. REV. (Dec. 21, 2023), https://natlawreview.com/article/washington -state-adopts-new-permanent-wildfire-smoke-regulations [https://perma.cc/2MGF-5WVX]; ENV’T L. INST., WILDFIRE SMOKE: STATE POLICIES FOR REDUCING INDOOR EXPOSURE 72–76 (2024). 355. CAL. CODE REGS. tit. 8, § 5141.1 (2025). 356. CAL. CODE REGS. tit. 8 §5141.1(2) (2025). 357. OR. ADMIN. R. 437-002-1081 (2022). 2025] Wildfire Smoke and U.S. Law 269 statutory authority. The court dismissed the suit with prejudice.358 Washington has similar rules though they are somewhat less detailed than those of California and Oregon.359 Washington also requires tem- porary worker housing (such as for farmworkers) to have adequate ventilation.360 Montana has issued guidance, but not regulations, on protecting workers from wildfire smoke.361 When wildfire smoke from Canada shrouded the northeastern states in 2023, several law firms sent out notices warning that work- ers’ compensation claims might be filed by employees who were sick- ened by wildfire smoke while on the job.362 It is not clear if any such claims have actually been filed. Construction contractors have also been warned that they could face a choice between being liable for endangering workers who they require to work during high smoke conditions, or being liable to project owners for not performing the work, though the Associated Builders and Contractors emphasized “contractors need to do what is necessary to put their workers’ health first.”363 Xavier Becerra, former Secretary of Health and Human Services, an- nounced in March 2024 that he was asking health experts to meet reg- ularly in an effort to better protect farmworkers from extreme heat 358. Or. Mfrs. & Com. v. Or. Occupational Safety & Health Div., 2022 WL 17820312 (D. Or. 2022). 359. WASH. ADMIN. CODE §§ 296-820-805–60. 360. WASH. ADMIN. CODE §§ 296-307-16145(11), 246-358-075(11), 296-307-16146, 246-358- 076. 361. MONT. DEP’T OF PUBLIC HEALTH AND HUM. SERVS., WILDFIRE SMOKE & EMPLOYEE HEALTH, https://dphhs.mt.gov/assets/publichealth/Asthma/Wildfire%20Smoke/WildfireSmokeEm- ployeeProtection.pdf [https://perma.cc/X2BX-DYHG]. 362. E.g., Noah L. Dennison et al., Canadian Wildfire Smoke and Potential Workers’ Compensa- tion Claims, GOLDBERG SEGALLA (June 8, 2023), https://www.goldbergsegalla.com/news-and- knowledge/knowledge/canadian-wildfire-smoke-and-potential-workers-compensation- claims/ [https://perma.cc/932Z-J7Q9]; Worker’s Compensation and Smoke Inhalation on the Job, ROBINSON LAW LLC, https://robinsonlwyr.com/workers-compensation-and-smoke-inhalation- on-the-job/ [https://perma.cc/BY8P-BVM2] (last visited Feb. 13, 2025); Wildfire Smoke Expo- sure & Workers’ Compensation, LEVINSON AXELROD (June 12, 2023), https://www.njlaw- yers.com/blog/2023/june/wildfire-smoke-exposure-workers-compensation/ [https://perma. cc/XS9S-XNQJ]. 363. Joe Bousquin, Contractors Could be Liable for Wildfire Smoke Impacts on Workers’ Health, CONSTR. DIVE (Sept. 25, 2020), https://www.constructiondive.com/news/contractors-could-be- liable-for-wildfire-smoke-impacts-on-workers-health/585861/ [https://perma.cc/B77W-YU T5]. 270 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 50:S and wildfire smoke. He said he was inspired to do this because his own father picked crops in California farm fields.364 Early in the COVID-19 pandemic, many people became familiar with the NIOSH-approved N95 or P100 disposable respirators. Use of these kinds of masks has been recommended for those who must work outside in smoky conditions.365 However, these recommenda- tions were not binding. OSHA does have a widely applicable regula- tion that provides that “[a] respirator shall be provided to each em- ployee when such equipment is necessary to protect the health of such employee.”366 One potential complication for employers and others is that various criminal enterprises have manufactured counterfeit N95 masks. In February 2021, federal agents seized approximately 11 mil- lion such masks.367 Several people have been prosecuted for such ac- tions.368 4. Insurance Insurance plays a role, but a limited one, in reducing wildfire risk. For a long time, higher insurance costs did not significantly discour- age development in or near forested areas; people wanted to live 364. Ariel Wittenberg, HHS to Target Heat, Smoke Effects on Farmworkers, CLIMATE WIRE (Mar. 28, 2024), https://www.eenews.net/articles/hhs-to-target-heat-smoke-effects-on-farmwork- ers/ [On File with the Columbia Journal of Environmental Law]. Cf. Danielle Paquette, During California Wildfires, Farmworkers Say They Felt Pressure to Keep Working or Lose Their Jobs, WASH. POST (Nov. 20, 2018), https://www.washingtonpost.com/business/economy/during-cal- ifornia-wildfires-farm-workers-felt-pressured-to-keep-working-or-lose-their-jobs/2018/11/ 20/757f92a0-ec06-11e8-baac-2a674e91502b_story.html [On File with the Columbia Journal of Environmental Law]. 365. ENV’T PROT. AGENCY, WILDFIRE SMOKE: A GUIDE FOR PUBLIC HEALTH OFFICIALS 27–29 (2019), https://www.airnow.gov/sites/default/files/2021-09/wildfire-smoke-guide_0.pdf [https://pe rma.cc/9FW9-DKF7]. 366. 29 C.F.R. § 1910.134(a)(2). 367. DHS Prevents Millions of Counterfeit N95 Masks from Reaching Hospital Workers, First Re- sponders, U.S. IMMIGR. AND CUSTOMS ENF’T (Feb. 17, 2021), https://www.ice.gov/news/re- leases/dhs-prevents-millions-counterfeit-n95-masks-reaching-hospital-workers-first [https:// perma.cc/82MH-27W6]. 368. Phoenix Man Sentenced for Importing Counterfeit N95 Masks from Asia, U.S. ATT’Y’S OFF., DIST. OF ARIZ. (Dec. 30, 2022), https://www.justice.gov/usao-az/pr/phoenix-man-sentenced- importing-counterfeit-n95-masks-asia [https://perma.cc/7VEE-KP6R]; Kyle Iboshi, Feds Seek Lamborghini, Mercedes and Cash from Oregon Man Who Allegedly Sold Fake N95 Masks, KGW8 (Oct. 4, 2023), https://www.kgw.com/article/news/investigations/oregon-man-selling-fake- counterfeit-n95-masks-covid-charged-federal/283-b6f99c61-ee64-4e62-a25b-d21cc898b85 d? [https://perma.cc/U7SL-ETGY]; Feds Charge Michigan Man With N95 Mask Scam Which Burned Bay Area Victims, CBS NEWS (Apr. 28, 2020), https://www.cbsnews.com/sanfran- cisco/news/feds-charge-michigan-man-with-n95-mask-scam-which-burned-bay-area-vic- tims/ [https://perma.cc/P5G6-9974]. 2025] Wildfire Smoke and U.S. Law 271 there and were willing to pay the higher premiums.369 Some carriers are now refusing to sell policies in wildfire-prone areas,370 but this may not be having much impact on home values or sales,371 though it is possible that the Los Angeles fires of 2025 will change that, at least in parts of California. Moreover, some states do not allow insurance companies to raise premiums to fully reflect wildfire risks.372 A Cali- fornia law prohibits insurance companies from canceling a policy while a primary residence is being rebuilt after a disaster and requires them to renew the policy at least once following a total loss.373 How- ever, these policies are typically written for only twelve months. Thus, many homeowners are now rebuilding their homes in areas re- cently (and sometimes repeatedly) destroyed by fire, and they still have their insurance; a year after their first renewal, their policy may be canceled, and they may be relegated to a state-sponsored “last re- sort” insurance program with high premiums and limited coverage.374 369. Ray Rasker, Do Insurance Policies and Rates Influence Home Development on Fire-Prone Lands?, HEADWATERS ECON. (June 28, 2016), https://headwaterseconomics.org/wildfire/solu- tions/insurance-wildfire-home-development/ [https://perma.cc/H3X2-YCHR]. 370. Gloria Oladipo, Insurance Giant Halts Sale of New Home Policies in California due to Wild- fires, GUARDIAN (May 27, 2023), https://www.theguardian.com/us-news/2023/may/27/state- farm-home-insurance-california-wildfires [https://perma.cc/FG4E-E326]; Christopher Fla- velle, Jill Cowan & Ivan Penn, Climate Shocks Are Making Parts of America Uninsurable. It Just Got Worse, N.Y. TIMES (May 31, 2023), https://www.nytimes.com/2023/05/31/climate/climate- change-insurance-wildfires-california.html [On File with the Columbia Journal of Environmental Law]; Nadja Popovich & Brad Plumer, As Wildfires Grow, Millions of Homes Are Being Built in Harm’s Way, N.Y. TIMES (Sept. 9, 2022), https://www.nytimes.com/interactive/2022/09/09/ climate/growing-wildfire-risk-homes.html [On File with the Columbia Journal of Environmental Law]. 371. Hongwei Dong, Climate Change and Real Estate Markets: An Empirical Study of the Im- pacts of Wildfires on Home Values in California, 247 LANDSCAPE & URB. PLAN. 105062 (2024); Mir- iam Greenberg et al., Relational Geographies of Urban Unsustainability: The Entanglement of Cal- ifornia’s Housing Crisis with WUI Growth and Climate Change, 121 PROC. NAT’L ACAD. SCIS., no. e2310080121 (2024). 372. Christopher Flavelle, Why Two Years of Historic Wildfires Haven’t Made Southern Califor- nia Safer, BLOOMBERG NEWS (Aug. 15, 2018), https://www.bloomberg.com/news/articles/2018- 08-15/why-two-years-of-historic-wildfires-haven-t-made-southern-california-safer [On File with the Columbia Journal of Environmental Law]; but see Brianna Sacks, As Wildfire Risks Inten- sify, California Insurance Rates Keep Rising, WASH. POST (Aug. 29, 2024), https://www.washing- tonpost.com/climate-environment/2024/08/29/california-insurance-wildfires-allstate/ [On File with the Columbia Journal of Environmental Law]. 373. CAL. INS. CODE § 675.1 (West 2019). 374. Jessica Wentz, Wildfire Risk In A Warming Climate: Homes Built In The Aftermath Of Wild- fires May Become Uninsurable, CLIMATE L. BLOG (June 25, 2018), https://blogs.law.colum- bia.edu/climatechange/2018/06/25/wildfire-risk-in-a-warming-climate-homes-built-in-the- aftermath-of-wildfires-may-become-uninsurable/ [https://perma.cc/9GNA-SYHQ]. See also CAL. DEP’T OF INS., THE AVAILABILITY AND AFFORDABILITY OF COVERAGE FOR WILDFIRE LOSS IN https://www.washingtonpost.com/climate-environment/2024/08/29/california-insurance-wildfires-allstate/ https://www.washingtonpost.com/climate-environment/2024/08/29/california-insurance-wildfires-allstate/ 272 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 50:S A major question as this is written is how this program, and the real estate market for much of California, will cope in the wake of the Los Angeles fires.375 Where the law does not restrain insurance companies from charg- ing market-based rates, insurance is starting to be effective in induc- ing some building owners in high-hazard areas to build to fire-re- sistant standards; otherwise, they may lose their coverage or have to pay more for it.376 Occasionally, insurance claims are made for economic damage caused by wildfire smoke. In Oregon Shakespeare Festival Ass’n v. Great American Insurance Co., several theater events were cancelled due to wildfire smoke. The court found that this loss was covered be- cause “the infiltration of smoke into the interior of the theater is a cov- ered ‘physical loss of or damage to property’ . . . .”377 United Policyholders, a nonprofit that advances the interests of in- surance policyholders, has advised, “Damage to your home and pos- sessions by smoke and ash is covered in your home policy. Payment for smoke damage to the structure of your home (walls, studs, wall-to-wall carpeting etc.) comes out of your dwelling coverage. Pay- ment for smoke damage to area rugs, clothing, curtains, furniture, etc.) comes out of your contents coverage.”378 However, some homeown- ers have experienced difficulties getting insurance companies to pay for damage caused by wildfire smoke.379 RESIDENTIAL PROPERTY INSURANCE IN THE WILDLAND-URBAN INTERFACE AND OTHER HIGH-RISK AREAS OF CALIFORNIA: CDI SUMMARY AND PROPOSED SOLUTIONS (2017), https://uphelp.org/wp-content/up- loads/2020/08/docs_legal-1053561-v1-cdi_white_paper_availability_affordability_120817.pdf [https://perma.cc/KRR9-NV5X]; Christopher Flavelle, Wildfires Threaten to Make Home Insur- ance Unaffordable, BLOOMBERG NEWS (Jan. 4, 2018), https://www.bloomberg.com/news/arti- cles/2018-01-04/california-says-wildfires-are-making-home-insurance-unaffordable [On File with the Columbia Journal of Environmental Law]. 375. See Lawrence Darmiento, Insurer of last resort may need a bailout, L.A. TIMES (Jan. 19, 2025), https://www.latimes.com/business/story/2025-01-18/california-fair-plan-the-home- insurer-of-last-resort-may-need-bailout-after-fire-losses [https://perma.cc/7CCD-NJ2C]. 376. Jonathan Yoder, Fuel for the Fire: Liability and the Economics of Wildfire Risk, in WILDFIRE POLICY: LAW AND ECONOMICS PERSPECTIVES 51 (Karen M. Bradshaw & Dean Lueck eds., 2012); Rasker, supra note 369. 377. Or. Shakespeare Festival Ass’n v. Great Am. Ins. Co., No. 1:15-cv-01932-CL, 2016 WL 3267247, at *7 (D. Or. June 7, 2016). 378. Smoke and Ash Damage from a Wildfire, UNITED POLICYHOLDERS, https://up- help.org/claim-guidance-publications/smoke-and-ash-damage-from-a-wildfire/ [https://perm a.cc/ET49-3MC7] (last visited Feb. 7, 2025). 379. Kiley Price, Wildfires Leave Toxins in Homes. Insurance Companies Can Do More About It, TIME (Jan. 25, 2024), https://time.com/6588094/wildfires-hidden-toxins-insurance/ [https:// perma.cc/49TX-FZPM]. 2025] Wildfire Smoke and U.S. Law 273 Senator Alex Padilla (D-CA) has introduced the Smoke Exposure Crop Insurance Act of 2023, which would require creation of a crop insurance policy to better insure against wine grape losses due to wildfire smoke.380 However, that bill has made little progress in Con- gress.381 5. Smoke Across Borders Wildfires in Canada have caused serious smoke conditions in the United States. Canada is the second largest country in the world (be- hind Russia), and more than 43% of its land area is forest.382 Like the United States, Canada had a long history of fire suppression, leading to a buildup of fuel.383 But stifling smoke crossing national borders is a global phenomenon. Fires in Indonesia have repeatedly blanketed Singapore, Malaysia, and beyond.384 In May 1998, the entire state of Texas was under an air quality alert, and visibility was impaired as far north as Wisconsin, because of smoke from fires thousands of miles away in Mexico.385 Smoke from China has long sickened people in South Korea, though that situation is improving.386 A country does not bear legal responsibility if it experiences a natu- ral disaster such as a volcanic eruption or an earthquake that leads to damage in other countries. But if the disaster was caused or worsened by human actions, legal questions arise. The Indonesian smoke plumes largely came from farmers and landowners starting fires to 380. Smoke Exposure Crop Insurance Act of 2023, S. 2134, 118th Cong. (2023). See also Smoke Exposure Crop Insurance Act of 2023, H.R. 4308, 118th Cong. (2023). 381. See All Information (Except Text) for S.2134 - Smoke Exposure Crop Insurance Act of 2023, CONGRESS.GOV, https://www.congress.gov/bill/118th-congress/senate-bill/2134/all-info [On File with the Columbia Journal of Environmental Law] (last visited Feb. 7, 2025). 382. Canada, GLOB. FOREST WATCH, https://www.globalforestwatch.org/dashboards/coun- try/CAN/?category=land-cover&location=WyJjb3VudHJ5IiwiQ0FOIl0%3D [On File with the Co- lumbia Journal of Environmental Law] (last visited Feb. 7, 2025). 383. Marc-André Parisien et al., Fire Deficit Increases Wildfire Risk for Many Communities in the Canadian Boreal Forest, 11 NAT. COMMC’NS, no. 2121, at 1, 4–5 (2020). 384. See, e.g., Michael Brauer & Jamal Hisham-Hashim, Fires in Indonesia: Crisis and Reaction, 32 ENV’T SCI. & TECH. 404A, 404A (2011). 385. John H. Cushman Jr., Texans Coping with Smoke Cloud and Fires in Mexico, N.Y. TIMES (May 18, 1998), https://www.nytimes.com/1998/05/18/us/texans-coping-with-smoke-cloud- from-fires-in-mexico.html [On File with the Columbia Journal of Environmental Law]; R.A. Pep- pler et al., ARM Southern Great Plains Site Observations of the Smoke Pall Associated with the 1998 Central American Fires, 81 BULL. AM. METEOROLOGICAL SOC’Y 2563, 2563 (2000). 386. China’s Pollution Spills Over to South Korea, as Does the Benefits of its Policies, ENERGY POL’Y INST. AT THE UNIV. OF CHI. (Mar. 27, 2023), https://epic.uchicago.edu/insights/chinas-pollu- tion-spills-over-to-south-korea-as-does-the-benefits-of-its-policies/ [https://perma.cc/QW9E- EEX2]. 274 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 50:S clear land for crops or development. These actions were tolerated by the Indonesian government. If government action or inaction leads to smoke that darkens the skies across borders, can the law assist the downwind countries? Several principles of international law would seem to apply. Most importantly, the “no-harm rule” provides that states have a sovereign right to exploit their resources, but they must ensure that their exer- cise of this right does not damage the environment of other states or areas outside their jurisdiction. This rule has been recognized in sev- eral arbitral and judicial decisions387 and United Nations declara- tions.388 One commentator has suggested that Brazil’s forest manage- ment policies during the presidency of Jair Bolsonaro, which led to massive wildfires, violated these principles as well as the no-harm rule under the Convention on Biological Diversity.389 The existence of these principles does not mean there is always a legal remedy for their breach. A remedy would have to be imposed by a court or other tri- bunal, and a fundamental principle of international law is that states are not subject to the jurisdiction of a tribunal unless they have con- sented. In December 2024, the International Court of Justice (ICJ) heard arguments in a case originally brought by the island nation of Vanuatu claiming that its survival is threatened by GHG emissions from other countries.390 However, the most the ICJ can do here is is- sue an advisory opinion; the largest emitters, China and the U.S., are not among the countries that have consented to give the ICJ the power to issue a binding ruling in such a case.391 Moreover, getting to the ICJ 387. See, e.g., Trail Smelter (U.S./Can.), 3 R.I.A.A. 1905, 1965 (Ottawa Convention 1941); Corfu Channel (U.K. v. Alb.), Judgment, 1949 I.C.J. 4, 22 (Apr. 9); Pulp Mills on River Uruguay (Arg. v. Uru.), Judgment, 2010 I.C.J. 14, ¶ 101 (Apr. 20). 388. See, e.g., U.N. Conference on the Human Environment, Declaration of the U.N. Conference on the Human Environment, prin. 21, U.N. Doc. A/CONF.48/14/Rev. 1 (June 16, 1972); U.N. Con- ference on Environment and Development, Rio Declaration on Environment and Development, prin. 14, U.N. Doc. A/CONF.151/26/Rev.1 (Vol. I), annex I (Aug. 12, 1992). 389. Ruslan Klafehn, Burning Down the House: Do Brazil’s Forest Management Policies Violate the No-Harm Rule Under the CBS and Customary International Law?, 35 AM. U. INT’L L. REV. 941, 945 (2020). 390. Stephanie van den Berg, Vanuatu urges World Court to recognize climate change harms, REUTERS (Dec. 2, 2024), https://www.reuters.com/business/environment/world-court-open- climate-change-hearings-2024-12-02/ [On File with the Columbia Journal of Environmental Law]. 391. ZACHARY VERMEER & DAPO AKANDE, PRIOR CONSENT BY STATES TO THE JURISDICTION OF INTERNATIONAL COURTS AND TRIBUNALS IN INTER-STATE DISPUTES 3, 25–26, (2019), https://www.elac.ox.ac.uk/wp-content/uploads/2023/10/PriorConsent_Final_Report.pdf [https://perma.cc/5NJU-Y7QM]. 2025] Wildfire Smoke and U.S. Law 275 for an advisory opinion requires a majority vote of the United Nations General Assembly.392 Vanuatu launched a successful campaign for that because so many countries are concerned about climate change,393 but a similar cam- paign to protect the U.S. from Canadian wildfires is difficult to imag- ine. In 2024, the International Tribunal on the Law of the Sea ruled that GHGs that acidify and otherwise damage the oceans violate a provi- sion of the U.N. Convention on the Law of the Sea that requires states to prevent, reduce, and control marine pollution from anthropogenic GHG emissions; but here too, the tribunal could only issue a non-bind- ing advisory opinion.394 Most importantly, it is not clear how an advisory ruling on Canadian wildfires, for example, would actually reduce the fires or the smoke. It might increase political pressure on the Canadian government to act, but that government presumably is already facing pressure from its own citizens, who are more directly affected by the smoke than U.S. citizens. As Professor Nicholas Robinson has written, forest fires in- voke various principles of international environmental law but, “[i]t is hard to see how the concepts of liability in international re- sponsibility may be a useful concept to either deter future [forest fires] or insist on measures to prevent the fires. It is evident that tra- ditional international public law has little to offer to solve the prob- lems of transnational forest fire air pollution.”395 Instead, he argues that international cooperation is more produc- tive. For example, Congress has approved several regional compacts among states to provide mutual aid in fighting wildland fires; two of 392. U.N. Charter art. 96. 393. Michael Birnbaum, How a Small Island Got the World’s Highest Court to Take on Climate Justice, WASH. POST (Mar. 29, 2023), https://www.washingtonpost.com/climate-solutions /2023/03/29/vanuatu-international-court-un/ [On File with the Columbia Journal of Environ- mental Law]. 394. Margaretha Wewerinke-Singh & Jorge E. Viñuales, More than a Sink: The ITLOS Advisory Opinion on Climate Change and State Responsibility, CLIMATE LAW: A SABIN CTR. BLOG (June 7, 2024), https://blogs.law.columbia.edu/climatechange/2024/06/07/more-than-a-sink-the-it- los-advisory-opinion-on-climate-change-and-state-responsibility/ [https://perma.cc/SV3E-AR 94]. 395. Nicholas A. Robinson, Forest Fires as a Common International Concern: Precedents for the Progressive Development of International Environmental Law, 18 PACE ENV’T L. REV. 459, 467 (2001). 276 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 50:S these (the Great Lakes Forest Fire Compact and the Northeastern For- est Fire Protection Compact) also include Canadian provinces.396 There are examples of international agreements that have effec- tively addressed transboundary air pollution. The Canada-United States Air Quality Agreement of 1991 was originally designed to ad- dress acid rain and was amended in 2000 to concern ground-level ozone.397 A 2023 review by the countries’ environmental agencies concluded that the agreement has been successful in dealing with these two issues, but that fine particulate matter from wildfires is a problem that is increasingly causing transboundary air pollution problems.398 The two countries could build upon the Air Quality Agreement to foster stronger cooperation in fighting wildfires.399 They did so in June 2023 using a different mechanism—a memoran- dum of understanding between the U.S. Departments of Agriculture and Interior and Natural Resources Canada, pledging mutual aid dur- ing wildfire emergencies and other extreme events.400 Another framework for international cooperation is the Convention on Long-Range Transboundary Air Pollution, which was signed in 1979 and entered into force in 1983.401 It has fifty-one parties (in- cluding the United States and Canada402) and eight protocols, most of which address specific pollutants (e.g., persistent organic pollutants, 396. EACG Representation, E. AREA COORDINATION CTR., https://gacc.nifc.gov/eacc/eacg/agen cy_representation/agency_representation.htm [https://perma.cc/9KUG-8UCB] (last visited Feb. 7, 2025). 397. Canada-United States Air Quality Agreement, U.S.-Can., Mar. 13, 1991, T.I.A.S. No. 11,730; Canada-United States Air Quality Agreement: overview, GOV’T OF CAN., https://www.can- ada.ca/en/environment-climate-change/services/air-pollution/issues/transboundary/can- ada-united-states-air-quality-agreement-overview.html [https://perma.cc/WV6P-HZ49] (last modified Nov. 26, 2024). 398. ENV’T & CLIMATE CHANGE CAN. & U.S. ENV’T PROT. AGENCY, REVIEW AND ASSESSMENT OF THE CANADA-U.S. AIR QUALITY AGREEMENT (AQA), at ii–iv (2023), https://www.epa.gov/sys- tem/files/documents/2024-03/review-and-assessment-of-the-canada-us-aqa-508-compli- ance.pdf [https://perma.cc/J5FM-7E58]. 399. Madison Gaffney, Only Bilateral Agreements Can Stop Wildfires: Why Diplomacy Through the U.S.-Canada Air Quality Agreement (AQA) Is a Solution for Wildfire Related Transboundary Pollution, VT. J. ENV’T L., Summer 2022, at 1, 28. 400. Canada and the United States Commit to Enhanced Wildland Fire Cooperation, U.S. DEP’T OF THE INTERIOR (June 28, 2023), https://www.doi.gov/wildlandfire/canada-and-united-states- commit-enhanced-wildland-fire-cooperation [https://perma.cc/HEZ7-CGYK]. 401. Convention on Long-Range Transboundary Air Pollution, Nov. 13, 1979, 1302 U.N.T.S. 217. 402. Id. 2025] Wildfire Smoke and U.S. Law 277 heavy metals, sulfur, and nitrogen oxides).403 A new protocol could be adopted for wildfire smoke or PM2.5. Particular efforts have been undertaken in southeast Asia to ad- dress smoke that crosses borders. In 2014, the Singapore Parliament enacted the Transboundary Haze Pollution Act imposing criminal and civil liability on agri-business companies involved in fires outside of Singapore that cause haze in the country.404 Aside from difficult is- sues of proof and causation, the law could only be enforced against companies with assets or other presence in Singapore.405 It is not clear if any cases have actually been brought under this law. As a tiny but prosperous island state located between two much larger states, Malaysia and Indonesia, Singapore has led regional efforts to control the haze coming from its neighbors.406 The Association of Southeast Asian Nations (ASEAN) has adopted various agreements on control- ling haze including the ASEAN Agreement on Transboundary Air Pol- lution (AATHP).407 In 2024, the Human Rights Commission of Malaysia (“SUHAKAM”) issued a detailed report to address the problem of haze pollution. The report found that the haze was coming from fires in Malaysia, Indone- sia, and other countries in southeast Asia. It acknowledged that exist- ing laws were too weak to address the problem and recommended several changes in domestic law and negotiations to try to develop “a protocol to the AATHP to establish a legally binding commitment by each Member State to enact domestic legislation to hold to account its 403. See, e.g., Protocols to the Convention on Long-Range Transboundary Air Pollution, in- cluding the Protocol on the Reduction of Sulphur Emissions, July 8, 1985, 1480 U.N.T.S. 215, and the Protocol on Persistent Organic Pollutants, June 24, 1998, U.N. Doc. ECE/EB.AIR/104; U.N. Economic Commission for Europe, Protocols, https://unece.org/protocols [On File with the Co- lumbia Journal of Environmental Law] (last visited Feb. 7, 2025). 404. Transboundary Haze Pollution Act 2014, No. 24 of 2014 (Sing.). 405. Alan Khee-Jin Tan, The ‘Haze’ Crisis in Southeast Asia: Assessing Singapore’s Transbound- ary Pollution Act 2014, at 21, 41–42 (Nat’l Univ. of Sing., Working Paper No. 2015/002, 2015). 406. Helena Varkkey, Emergent Geographies of Chronic Air Pollution Governance in Southeast Asia: Transboundary Publics in Singapore, 32 ENV’T POL’Y & GOVERNANCE 348, 351 (2022). 407. ASEAN SECRETARIAT, EXECUTIVE SUMMARY OF THE FINAL REVIEW OF THE ROADMAP ON ASEAN COOPERATION TOWARDS TRANSBOUNDARY HAZE POLLUTION CONTROL WITH MEANS OF IMPLEMENTATION 1 (2022), https://asean.org/wp-content/uploads/2022/06/Executive-Summary-Haze-Roadm ap-Review-E-PUB-21Jun22.pdf [https://perma.cc/9WMT-TVL6]; Varkkey, supra note 406; Lau- ren Mai, Extinguishing a Point of Contention: Examining Transboundary Haze in Southeast Asia, DIPLOMAT (Nov. 28, 2023), https://thediplomat.com/2023/11/extinguishing-a-point-of-con- tention-examining-transboundary-haze-in-southeast-asia/ [On File with the Columbia Journal of Environmental Law]; Samantha Ho, Asean Still Lacks Legal Redress Against Transboundary Haze, in Focus Ahead of Leaders’ Meeting, ECO-BUSINESS (June 5, 2023), https://www.eco-busi- ness.com/news/asean-still-lacks-legal-redress-against-transboundary-haze-in-focus-ahead-of- leaders-meeting/ [On File with the Columbia Journal of Environmental Law]. 278 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 50:S citizens and corporations domiciled in its own jurisdiction for their contribution to land and/or forest fires in other Member States.”408 In sum, there do not currently appear to be any options to secure redress (either through money damages or injunctive relief) from the courts for cross-boundary smoke. Diplomacy remains a potential tool, and it would be supported by principles of international law. C. Building near the Woods As climate change makes wildfires more frequent and intense, peo- ple who live near or in forested areas are in peril, leading to a policy of aggressive fire suppression. If people live nearby, it is much more challenging to let fires burn or to set prescribed fires. Dealing with this peril, and with the suppression of natural wildfires, poses legal issues that are key to coping with wildfire smoke. There is a legal term for these areas: the Wildland-Urban Interface, or WUI (pronounced “WOO-EE”).409 Several federal and state statutes and regulations define the WUI in different ways, but the basic con- cept is areas where buildings are near or within undeveloped wildland.410 As urban areas grow, the borderline pushes outward into the trees.411 The WUI is the fastest-growing land use type in the co- terminous United States. The number of houses in the WUI has been rapidly growing and was forty-four million in 2020.412 Today, about one in three houses and one tenth of the land area in the coterminous United States is in the WUI.413 Sixty percent of new homes built in the United States since 1990 have been constructed in the WUI, convert- ing wildlands to WUI at a rate of approximately four thousand acres 408. SUHAKAM, SILENT ENEMY: REPORT ON HAZE POLLUTION & THE RIGHT TO CLEAN AIR 43 (2024), https://suhakam.org.my/wp-content/uploads/2024/09/SUHAKAM-Report-on-Haze- Pollution-Right-to-Clean-Air.pdf [https://perma.cc/5LQK-ZQZE]. 409. This is not only a U.S. phenomenon. Franz Schug et al., The Global Wildland-Urban Inter- face, 621 NATURE 94, 94 (2023). 410. Stephen R. Miller, Planning for Wildfire in the Wildland-Urban Interface: A Guide for West- ern Communities, 49 URB. LAW. 207, 213 (2017). 411. Prashant Gopal & Noah Buhayar, California’s Housing Crunch is Pushing Developers Deeper into Dangerous Fire Zones, CLAIMS J. (Nov. 25, 2019), https://www.claimsjour- nal.com/news/west/2019/11/25/294252.htm [https://perma.cc/42A7-3SJD]. 412. Volker C. Radeloff et al., Rising Wildfire Risk to Houses in the United States, Especially in Grasslands and Shrublands, 382 SCIENCE 702, 706 (2023). See also Nadja Popovich & Brad Plumer, Homes Built in Harm’s Way, Even as Wildfires Grow Larger, N.Y. TIMES (Sept. 9, 2022), https://www.nytimes.com/interactive/2022/09/09/climate/growing-wildfire-risk-homes. html [On File with the Columbia Journal of Environmental Law]. 413. Volker C. Radeloff et al., Rapid Growth of the US Wildland-Urban Interface Raises Wildfire Risk, 115 PROC. NAT’L ACAD. SCIS. 3314, 3314 (2018). 2025] Wildfire Smoke and U.S. Law 279 per day and two million acres per year.414 These homes are especially vulnerable to wildfires; 69% of buildings destroyed by wildfire in the U.S. are located in the WUI, and in California, that number rises to 75%.415 Of the privately-owned wildlands in the western states, only about 16% of the acreage is now developed; the remaining 84% is available for development if state and local governments allow it.416 Thus, state and local governments will play central roles in determining how many buildings and people are endangered by the fires that climate change is worsening. Governments have three major regulatory tar- gets to reduce the risk: the development of land, the construction of buildings, and the land around buildings. No federal or state statute specifically prohibits or discourages de- velopment in the WUI.417 Restricting development in the WUI would prevent fire damage there and make it easier to carry out prescribed fires, but it is rarely politically acceptable. (The same issues arise with respect to development in areas threatened by coastal or inland flood- ing.) Barring any use of private property can make a town liable to a claim for compensation for a regulatory taking.418 Developers of res- idential subdivisions are sometimes told to keep the houses away from the portions of their property that are especially vulnerable to fire (as also routinely happens with wetlands and the like419); that is usually not a taking.420 Monrovia, a suburb of Los Angeles, spent $24 million (mostly from a bond issue) to buy 1,416 acres of WUI land from willing sellers, so there was no takings issue.421 But few places are willing to spend 414. BOOZ ALLEN HAMILTON, 2014 QUADRENNIAL FIRE REVIEW: FINAL REPORT 28 (2015), https://www.forestsandrangelands.gov/documents/qfr/2014QFRFinalReport.pdf [https://pe rma.cc/8XFY-YWD4]. 415. Heather Anu Kramer et al., High Wildfire Damage in Interface Communities in California, 28 INT’L J. WILDLAND FIRE 641, 641 (2019). 416. ROSS GORTE, HEADWATERS ECON., THE RISING COST OF WILDFIRE PROTECTION 1 (2013), http://i2.cdn.turner.com/cnn/2014/images/06/25/fire-costs-background-report.pdf [https:/ /perma.cc/N5VW-ETCA]. 417. Lauren Ashley Week, Climate Change in Unincorporated California: The Consequences of Limited Regulation for Land Use, Lodging, and Livelihoods in the Wildland Urban Interface, 52 URB. LAW. 539, 549–54 (2024). 418. Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1027–31 (1992). 419. Blake Hudson, Fighting Fire with Fire? Adjusting Regulatory Regimes and Forest Product Markets to Mitigate Southern United States Wildfire Risk, 33 J. ENV’T L. & LITIG. 33, 44 (2018). 420. Murr v. Wisconsin, 582 U.S. 383, 406 (2017); Palazzolo v. Rhode Island, 533 U.S. 606 (2001). 421. Char Miller, A Way to Break the Terrifying Pattern of Fire and Flood, L.A. TIMES (Jan. 11, 2018), https://www.latimes.com/opinion/op-ed/la-oe-miller-post-fire-strategies-20180111- story.html [https://perma.cc/J9QV-GGDD]. 280 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 50:S taxpayer money to buy land so it cannot be built on, and regulations to restrict development are often rejected as an infringement on pri- vate property rights, as a threat to the local tax base, and even “creep- ing socialism.”422 The federal government also pays much of the cost of fighting fires in the WUI, reducing the incentive for state and local governments to restrict risky development.423 Even modest efforts to require local residents to take some of the burden of protecting them- selves are fragile. In 2011, the California legislature levied a fee of up to $150 on people who live in areas where the state, rather than the municipality, has to deal with wildfires; but it was so unpopular that Governor Jerry Brown scrapped it.424 Where wildfire has destroyed houses in the WUI, new or rebuilt houses usually pop up again within a few years.425 Where development is allowed in the WUI (which it usually is), the buildings can at least be made more fire resistant. This really matters. One of the greatest dangers in a wildfire is burning embers—also called firebrands—that can be blown long distances by the wind, fall on a roof, burn through, and ignite the whole building. Wood shingle and wood shake roofs are especially vulnerable; clay, composite and metal roofs, much less so. There are guidelines for materials and de- signs for roofs, siding, windows, gutters, vents, and other building el- ements to make them fire resistant; these guidelines are incorporated into the building codes of some towns, and some insurance policies, for structures in wildfire danger zones.426 In 2016, President Obama 422. Richard Manning, Combustion Engines, HARPER’S (Aug. 2018), https://harpers.org/ar- chive/2018/08/lolo-peak-rice-ridge-mega-fires/ [https://perma.cc/9X24-W3UF]. 423. Tania Schoennagel, et al., Adapt to More Wildfire in Western North American Forests as Climate Changes, 114 PROC. NAT’L ACAD. SCIS. 4582, 4582–90; HEADWATERS ECON., REDUCING WILDFIRE RISKS TO COMMUNITIES (2014), https://headwaterseconomics.org/wp-content/up- loads/Paper-Reducing-Wildfire-Risk.pdf [https://perma.cc/93ST-Z8DT]. 424. Christopher Flavelle, Why Is California Rebuilding in Fire Country? Because You’re Paying for It, BLOOMBERG BUS. WK. (Mar. 1, 2018), https://www.bloomberg.com/news/features/2018- 03-01/why-is-california-rebuilding-in-fire-country-because-you-re-paying-for-it [On File with the Columbia Journal of Environmental Law]. 425. Patricia M. Alexandre et al., Rebuilding and New Housing Development After Wildfire, 25 INT’L J. WILDLAND FIRE 138 (2015). 426. INT’L CODE COUNCIL, INT’L WILDLAND-URBAN INTERFACE CODE (2018 ed.); INS. INST. FOR BUS. & HOME SAFETY, BEST PRACTICES GUIDE FOR WILDFIRE – COMMERCIAL PROPERTIES (2015), https://ad- ventistrisk.org/Adventist_Risk/media/ARMSiteContent/Safety%20Resources/English/IFS- IBHS-Best-Practices-Guide-Wildfire-NAD-CAN-EN.pdf [https://perma.cc/8H7H-GFDS]; UNIV. OF NEV. COOP. EXTENSION, FIRE ADAPTED COMMUNITIES: THE NEXT STEP IN WILDFIRE PREPAREDNESS (2011), https://extension.unr.edu/publication.aspx?PubID=2980 [https://perma.cc/L2LP- ZXE9]; Jack D. Cohen, Preventing Disaster: Home Ignitability in the Wildland-Urban Interface, 98 J. FORESTRY, no. 3, at 15–21 (2000); Stephen L. Quarles et al., Home Survival in Wildfire-Prone 2025] Wildfire Smoke and U.S. Law 281 issued an executive order requiring federal buildings in the WUI to comply with such guidelines.427 As is almost always the case, these rules apply only to new and modified buildings; old ones need not be retrofit, so they remain a danger to themselves and neighboring struc- tures. Some buildings with precious contents are built with especially strong fire protections. For example, the Getty Center museum, in a fire-prone area of Los Angeles, was built with 1.2 million square feet of travertine stone covering the outside walls, crushed rock on the roofs, outdoor sprinklers to cool the glass windows, fire-resistant aca- cia shrubs close to the buildings, and a pressurized air filtration sys- tem to keep out the smoke.428 Another important legal tool in protecting against wildfire is requir- ing “defensible space”—keeping vegetation some distance (typically 100–200 feet) away from buildings. Short of that, some places have “weed ordinances” that say properties must be kept free of weeds. Here, too, guidelines are sometimes incorporated into law.429 Los An- geles has an especially strong ordinance, and its fire department also posts a list of “goat vendors” from which property owners can rent a Areas: Building Materials and Design Considerations, UNIV. OF CAL. AGRIC. & NAT. RES., no. 8393 (May 2010). 427. Exec. Order No. 13,728, Wildland-Urban Interface Federal Risk Mitigation, 81 Fed. Reg. 32223 (May 18, 2016); see also FED. EMERGENCY MGMT. AGENCY, IMPLEMENTATION GUIDELINES FOR EXECUTIVE ORDER 13728 WILDLAND-URBAN INTERFACE FEDERAL RISK MANAGEMENT (2016), https://www.usfa.fema.gov/downloads/pdf/eo13728_guidelines.pdf [https://perma.cc/CAX9 -TU6X]. 428. John Schwartz, Why the Getty Center’s Art Stayed Put as Fires Raged Nearby, N.Y. TIMES (Dec. 12, 2017), https://www.nytimes.com/interactive/2017/12/12/arts/design/getty-cen- ter-fire-evacuation.html [On File with the Columbia Journal of Environmental Law]; John Gittel- sohn, How Museums Fight Fires, Floods and Climate Change, BLOOMBERG NEWS (Dec. 15, 2017), https://www.bloomberg.com/news/articles/2017-12-15/how-art-museums-fight-wildfires- floods-and-climate-change [On File with the Columbia Journal of Environmental Law]; Kathe- rine Gammon, How LA’s Getty Center Built a Fire-Proof Fortress for Priceless Art, GUARDIAN (Oct. 28, 2019), https://www.theguardian.com/us-news/2019/oct/28/california-wildfires-getty- fire-museum-art [https://perma.cc/3VJG-SPC5]. The Getty Center survived the 2025 Los Ange- les fires, but it was a close call. Christopher Knight, Fire could have destroyed the Getty’s irre- placeable art. Should the museum move?, L.A. TIMES (Mar. 13, 2025), https://www.latimes.com/entertainment-arts/story/2025-03-13/should-getty-center-villa- museum-move-out-of-wildfire-zone [https://perma.cc/N5ST-UNBA]. 429. NAT’L FIRE PROT. ASS’N, COMMUNITY WILDFIRE SAFETY THROUGH REGULATION: A BEST PRACTICES GUIDE FOR PLANNERS AND REGULATORS (2013), https://unifiedfire.org/wp-content/uploads/Fire- wise-Wildfire-Best-Practices-Guide-for-Planners-and-Regulators.pdf [https://perma.cc/C8F9- TP8K]; Stephen R. Miller, Planning for Wildfire in the Wildland-Urban Interface: A Guide for West- ern Communities, 49 URB. LAW. 207 (2017). 282 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 50:S herd of these non-mechanized brush clearers.430 The biggest prob- lems with weed ordinances are maintenance and enforcement— many property owners do not keep the weeds trimmed, and few towns have the resources and political will to issue violation no- tices.431 Much of that task falls to homeowners associations; roughly 24% of the national housing stock and more than 60% of all new con- struction are in developments run by these associations.432 Home- owners can be required to sign covenants that specify allowable veg- etation, adding legal teeth but not ensuring enforcement. Other non-regulatory efforts have also had limited success. The Na- tional Fire Protection Association has a program called Firewise Com- munities that encourages control of vegetation, fire-resistant building materials, public education, and the like.433 However, only 2% of some 70,000 high-risk communities are certified as “Firewise.” Insur- ance companies have inspected less than 3% of the 46 million homes in at-risk communities for wildfire survivability. Only 10% of these communities have adopted a WUI code.434 California has adopted binding regulations for both building mate- rials (such as roofs and siding) and defensible space in the WUI,435 though the state is behind in implementing this law.436 After a severe fire in Oakland in 1991, the state legislature required mapping of high fire risk areas, and obliged home sellers to disclose to prospective 430. Fire Hazard Reduction Programs, L.A. COUNTY FIRE DEP’T, https://fire.lacounty.gov/fire- hazard-reduction-programs [https://perma.cc/8A2C-8EXQ] (last visited Feb. 6, 2025). 431. CHRIS DUERKSEN ET AL., FIRE PROT. RSCH. FOUND., ADDRESSING COMMUNITY WILDFIRE RISK: A REVIEW AND ASSESSMENT OF REGULATORY AND PLANNING TOOLS (2011). 432. Miller, supra note 429. 433. Public Education: Firewise USA, NAT’L FIRE PROT. ASS’N, https://www.nfpa.org/Public-Ed- ucation/By-topic/Wildfire/Firewise-USA/Become-a-Firewise-USA-site [https://perma.cc/JL7 U-6GDX] (last visited Mar. 12, 2025). 434. BOOZ ALLEN HAMILTON, supra note 414, at 29. This figure may be out of date, but no more recent one has been found. 435. Wildland Hazard & Building Codes, CALFIRE, http://calfire.ca.gov/fire_preven- tion/fire_prevention_wildland_codes [https://perma.cc/5MMT-XF9Q] (last visited Mar. 13, 2025). 436. Tran Nguyen, California Is Years Behind Fire-Proofing Homes Under Law, ASSOCIATED PRESS (Jan. 17, 2025), https://apnews.com/article/california-defensible-space-zone-zero-em- ber-resistant-73739a63eafc6239753152f19e7cc81f [On File with the Columbia Journal of Envi- ronmental Law]; Emily Pontecorvo, The Five Feet That Could Prevent the Next Palisades Fire: Cal- ifornia Passed a New Fire Safety Law More Than Four Years Ago. It Still Isn’t in Force, HEATMAP (Jan. 14, 2025), https://heatmap.news/climate/los-angeles-fires-zone-zero [https://perma. cc/C22M-N8X5]. 2025] Wildfire Smoke and U.S. Law 283 buyers if the property is in such an area.437 California and Oregon are the only states that require such disclosures.438 It is not surprising that more states do not require this, as it lowers a house’s sales price if it is disclosed to be at high risk of wildfire.439 Oregon’s mapping has not gone smoothly. In 2021 the state legisla- ture enacted a law that required the State Forestry Department to work with Oregon State University to develop a statewide map of wildfire risk, and to release it within one year.440 When the map was released, it led to controversy and loud protests from homeowners who were distressed to see their houses within the areas designated as high risk.441 The state rescinded the map and announced it would prepare a new one after more extensive community outreach. The new map was released in July 2024, not much different than the prior one.442 Time will tell how well it is received, but some early reports were not positive.443 California’s fire hazard mapping system is perhaps the strongest in the country (one survey rated California the top-ranked state in forest 437. Jeffrey G. Wagner, Natural Hazard Disclosure: Failure to Comply with 1998 Law May Ren- der Seller of Property or Agent Liable for Actual Damages, CAL. BAR J. (Aug. 1999), https://archi ve.calbar.ca.gov/archive/calbar/2cbj/99aug/mclestdy.htm [https://perma.cc/LP6N-9NAG]; Carolyn Kousky et al., In Harm’s Way: Homeowner Behavior and Wildland Fire Policy, in WILDFIRE POLICY: LAW AND ECONOMICS PERSPECTIVES 178 (Karen M. Bradshaw & Dean Lueck eds., 2012). 438. Lauren Sommer, Millions of Homes Are at Risk of Wildfires, but It’s Rarely Disclosed, NPR (Oct. 21, 2020), https://www.npr.org/2020/10/21/924507691/millions-of-homes-are-at- risk-of-wildfires-but-its-rarely-disclosed [https://perma.cc/9P7H-NJW4]. See also Rebecca K. Miller et al., Factors Influencing Adoption and Rejection of Fire Hazard Severity Zone Maps in Cal- ifornia, 50 INT’L J. DISASTER RISK REDUCTION, no. 101686 (2020) (discussing California’s move from voluntary to mandatory disclosure). 439. Emily Joiner et al., Disclosing Wildfire Risks in Home Sales, RES. MAG. (Jan. 2024), https://www.resources.org/common-resources/disclosing-wildfire-risks-in-home-sales/ [htt ps://perma.cc/F9L3-CL7R]. 440. Or. S.B. 762, § 7 (2021). 441. Kylie Mohr, Fire Risk Map Ignites Controversy, HIGH COUNTRY NEWS (Jan. 1, 2023), https://www.hcn.org/issues/55-1/north-wildfire-fire-risk-map-ignites-controversy/ [https:// perma.cc/5CAZ-WPG6]. 442. April Ehrlich, Oregon Releases New Draft Wildfire Hazard Map, OR. PUB. RADIO (July 18, 2024), https://www.opb.org/article/2024/07/18/oregon-releases-new-draft-wildfire-haz- ard-map/ [https://perma.cc/5CAZ-WPG6]. The final version of the map was released in January 2025. Bobby Corser, Oregon’s New Wildfire Maps Address Criticism, Clarify Hazard Zones, NBC16 (Jan. 7, 2025), https://nbc16.com/news/local/oregons-new-wildfire-maps-address-criticism- clarify-hazard-zones-salem-oregon-department-of-forestry-firefighters-fire [https://perma.cc /G7TW-SK9K]. 443. Justin Higginbottom, County Commissioners Raise Concerns over Draft Wildfire Hazard Map, JEFFERSON PUB. RADIO (Aug. 27, 2024), https://www.ijpr.org/environment-energy-and- transportation/2024-08-27/county-commissioners-raise-concerns-over-draft-wildfire-haz- ard-map [https://perma.cc/X7UD-C6NZ]. 284 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 50:S management444), but it is imperfect. For example, certain rules apply only to areas mapped as “very high severity.” The state provides the maps but local jurisdictions can change them.445 In 2017, the Coffey Park suburb of Santa Rosa burned to the ground during the Tubbs Fire (which until 2018 was the most destructive fire in the state’s history); the flames had been some distance away, but they threw off fire- brands that ignited the houses. The city (to its later regret) had omit- ted Coffey Park from its own “very high severity” map, exempting it from some fire protection requirements.446 About 30% of the houses that burned in the Tubbs Fire were outside the WUI altogether, but their destruction resulted from the fires inside the WUI.447 Moreover, back in 1964 another fire had burned some 53,000 acres along a nearly identical path as the Tubbs Fire of 2017, though it did little damage because few buildings were there; in the intervening half a century this fire-vulnerable area had become heavily populated.448 Notwithstanding its history of fires, the Coffey Park area has been re- built to even greater density than before the 2017 fire, with the en- couragement of the city.449 444. CONSTANCE L. MCDERMOTT ET AL., EARTHSCAN, GLOBAL ENVIRONMENTAL FOREST POLICIES: AN INTERNATIONAL COMPARISON (2010). 445. CAROLYN KOUSKY & RAY RASKER, HEADWATERS ECON., LESSONS FOR WILDFIRE FROM FEDERAL FLOOD RISK MANAGEMENT PROGRAMS 20–21 (2014), https://headwaterseconomics.org/wp-con- tent/uploads/Paper-Lessons-For-Fire-From-Floodrisk.pdf [https://perma.cc/R54K-CA4K]. 446. Doug Smith & Nina Agrawal, Despite Clear Risks, Santa Rosa Neighborhood that Burned Down Was Exempt from State Fire Regulations, L.A. TIMES (Oct. 15, 2017), https://www.latimes.com/local/lanow/la-me-ln-coffey-park-explainer-20171011-story.html [https://perma.cc/ST2G-ESTB]; Irvin Dawid, Wildfire Destroys Santa Rosa Neighborhood Outside of Fire Hazard Zone, PLANETIZEN (Oct. 20, 2017), https://www.planetizen.com/news/2017/10 /95385-wildfire-destroys-santa-rosa-neighborhood-outside-fire-hazard-zone [https://perma. cc/NYV3-7U5N]. 447. Manning, supra note 422. 448. Jason G. Goldman, Living on the Edge: Wildfires Pose a Growing Risk to Homes Built Near Wilderness Areas, SCI. AM. (June 1, 2018), https://www.scientificamerican.com/article/living- on-the-edge-wildfires-pose-a-growing-risk-to-homes-built-near-wilderness-areas/ [https://pe rma.cc/AUA4-AXKD]. 449. J.K. Dineen, The Tubbs Fire Leveled Parts of This Bay Area City; It’s Been Rebuilt with More Housing Density, S.F. CHRON. (Nov. 13, 2023), https://www.sfchronicle.com/bayarea/arti- cle/tubbs-fire-santa-rosa-housing-18435848.php [On File with the Columbia Journal of Envi- ronmental Law]; Dale Kasler & Ryan Sabalow, Burned-Out California Town Ignores Stricter Build- ing Codes, Even with Wildfire Threat, SACRAMENTO BEE (Nov. 15, 2019), https://www.sacbee .com/news/california/fires/article236909028.html [On File with the Columbia Journal of Envi- ronmental law]; Resilient City Zoning, CITY OF SANTA ROSA, https://www.srcity.org/2674/Resili- ent-City-Zoning [https://perma.cc/RW9C-ZL6A] (last visited Mar. 13, 2025). The City of Santa Rosa maintains a website, “Resilient City Recovery Maps,” showing the rebuilding of the areas that were destroyed in the Tubbs fire. Resilient City Recovery Maps, CITY OF SANTA ROSA, https://santarosa.maps.arcgis.com/apps/MapSeries/index.html [https://perma.cc/ZU6F-6QY J] (last visited Mar. 13, 2025). 2025] Wildfire Smoke and U.S. Law 285 Though few states require fire disclosures when selling a home, the nonprofit First Street Foundation has produced a model that predicts wildfire hazards for all U.S. homes.450 Fire suppression (putting out wildfires) creates a fire deficit—the difference between the rate of burning before humans arrived, and the current rate (whether wildfire or prescribed fire) plus thinning.451 This fire deficit increases the risk of wildfires to communities in the WUI because when the fires do come, they are more severe.452 When there is a fire, burning embers can travel so fast that notifying WUI residents of impending danger is a challenge. A heat wave devel- ops over days, giving time for door-to-door visits; a wildfire can leap miles in a few hours or even minutes.453 During the Tubbs Fire, many people went to bed oblivious to then-distant fires, only to wake up with the fire on top of them. Some were unable to escape; the fire killed at least forty-three people and destroyed at least 8,900 homes and structures.454 Most of those who died were senior citizens who were not able to move fast enough to flee.455 Officials have begun us- ing emergency alert systems to send alarms to smartphones, but there is sometimes uncertainty over just how broadly to send out the alerts.456 If you didn’t charge your phone, left it at the other end of the house, have the ringer turned off, have poor hearing and are not wear- ing hearing aids, or are in an area with poor cell phone reception or 450. Judson Boomhower, Adapting to Growth Wildfire Property Risk, 382 SCIENCE 638, 639 (2023). 451. U.S. DEP’T OF AGRIC., TOWARD SHARED STEWARDSHIP ACROSS LANDSCAPES: AN OUTCOME-BASED INVESTMENT STRATEGY 10 (2018), https://www.fs.usda.gov/sites/default/files/toward-shared- stewardship.pdf [https://perma.cc/WX22-8M7B]. 452. Marc-Andre Parisien et al., Fire Deficit Increases Wildfire Risk for Many Communities in the Canadian Boreal Forest, 11 NATURE COMMC’NS 2121 (2020). 453. Joseph Serna, Without Warning: Redding Fire Moved Faster Than Evacuation Orders, Leav- ing a Deadly Toll, L.A. TIMES (Aug. 18, 2018), https://www.latimes.com/local/lanow/la-me-red- ding-fire-reconstruct-20180818-htmlstory.html [https://perma.cc/5CDF-6EPC]. 454. Derek Watkins, How California’s Most Destructive Wildfire Spread, Hour by Hour, N.Y. TIMES (Oct. 21, 2017), https://www.nytimes.com/interactive/2017/10/21/us/california-fire- damage-map.html [On File with the Columbia Journal of Environmental Law]; Alex Dobuzinskis, Death Toll from California Blazes Rises to 43, After Teen Dies, REUTERS (Oct. 30, 2017), https://www.reuters.com/article/world/death-toll-from-california-blazes-rises-to-43-after- teen-dies-idUSKBN1D005H/ [On File with the Columbia Journal of Environmental Law]. 455. Majority of North California Fire Victims Were Senior Citizens, NBC BAY AREA (Oct. 19, 2017), https://www.nbcbayarea.com/news/local/north-bay-fires-victims/35581/ [https://pe rma.cc/R2YQ-7GBE]. 456. Brianna Sacks, This Is How California Officials Alerted Millions of People as Wildfires Ap- proached Homes, BUZZFEED NEWS (Dec. 6, 2017), https://www.buzzfeednews.com/article/bri- annasacks/as-wildfires-rip-through-southern-california-heres-how [https://perma.cc/4BK7- 27UE]. 286 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 50:S the fire has already burned down the cell tower, you may not receive the alarm. Opponents of proposed developments in the WUI have sometimes litigated under CEQA. In two cases brought by the Center for Biologi- cal Diversity and then joined by the California Attorney General, courts halted WUI projects because the environmental impact re- views had not adequately examined the public safety risks.457 The Governor’s Office of Planning and Research issued guidelines on con- sidering climate change under CEQA, and the Attorney General took the unusual step of issuing guidance on how wildfire risks should be considered under CEQA.458 Several other attempts to challenge WUI projects based on inadequate CEQA review of wildfire risks have been unsuccessful.459 Under the state’s CEQA guidelines, one of the factors to be considered in whether a full environmental impact report is re- quired under CEQA is whether “[d]ue to slope, prevailing winds, and other factors, [the project would] exacerbate wildfire risks, and thereby expose occupants to pollutant concentrations from a wildfire or the uncontrolled spread of a wildfire.”460 It may seem that the WUI is inhabited mainly by wealthy people who enjoy living in scenic areas, but that is untrue. One study found that around one-third of the residents of the WUI in the western states 457. Ctr. for Biological Diversity v. Cnty of Lake, No. CV421152 (Cal. Super. Ct. Jan. 4, 2022); People’s Notice of Motion and Motion for Leave to Intervene, No. 37-2019-00038820-CU-TT- CTL (Cal. Super. Ct. July 23, 2021). In later proceedings in the former matter, the Court of Appeal found that the final environmental report failed to provide “meaningful information” regarding the project’s “potential impact of exacerbating wildfire ignitions.” People ex rel. Bonta v. County of Lake, No. A165677, at 2 (Cal. Ct. App. Oct. 23, 2024); Judge Finds Environmental Review of Huge Otay Ranch Project Failed to Account for Wildfire Risks, TIMES OF SAN DIEGO (Oct. 7, 2021), https://timesofsandiego.com/politics/2021/10/07/judge-finds-environmental-review-of- huge-otay-ranch-projects-failed-to-account-for-wildfire-risks/#google_vignette [https://perm a.cc/VN4H-SADX] (discussing the context for the latter decision). 458. ROB BONTA, OFF. OF THE ATT’Y GEN. OF CAL., BEST PRACTICES FOR ANALYZING AND MITIGATING WILDFIRE IMPACTS OF DEVELOPMENT PROJECTS UNDER THE CALIFORNIA ENVIRONMENTAL QUALITY ACT (2022), https://oag.ca.gov/system/files/attachments/press-docs/2022.10.10%20-%20Wild- fire%20Guidance.pdf [https://perma.cc/W9HM-X4E9]. 459. See William W. Abbott et al., Emerging Issues in Evaluating Wildfire Impacts Under CEQA, LAND USE LAW BLOG (May 24, 2023), https://blog.aklandlaw.com/2023/05/uncatego- rized/emerging-issues-in-evaluating-wildfire-impacts-under-ceqa-a-resource-guide-2/ [https://perma.cc/XM88-2R4Y]; Arthur F. Coon & Mathew C. Henderson, Attorney General’s Guidance on ‘Best Practices’ for CEQA Analysis Of and Mitigation For Wildfire-Related Impacts is Long on Litigation and Policy Advocacy, Short on Neutral Legal Analysis, CEQA DEVELOPMENTS (Nov. 23, 2022), https://www.ceqadevelopments.com/2022/11/23/attorney-generals-guid- ance-on-best-practices-for-ceqa-analysis-of-and-mitigation-for-wildfire-related-impacts-is- long-on-litigation-and-policy-advocacy-short-on-neutral-leg/ [https://perma.cc/MA4Y-LYYZ]. 460. ASS’N OF ENV’T PROFESSIONALS, 2024 CEQA STATUTES & GUDELINES 357 app. G no. XX/b (2024). 2025] Wildfire Smoke and U.S. Law 287 lack incomes sufficient to meet basic economic needs.461 Poor areas will be especially hit hard by wildfires because they lack the financial resources to rebuild or to protect themselves; many of the residents have highly insecure livelihoods, and those who live in mobile homes or rural cabins are especially at risk.462 Banning new development in the WUI would allow more prescribed burning and protect people and property from the flames; but this is not workable in most places as it would worsen already severe hous- ing shortages, though infill development in existing cities could ad- dress some of the problems.463 Building codes and defensible space requirements effectively reduce risks, but they do little to address the smoke issue (except that they reduce the number of structures that burn and generate their smoke). Moreover, it appears, at least in Cal- ifornia, that most houses that are destroyed by wildfires are rebuilt in ways that are similarly vulnerable to the originals.464 Overall, building in the WUI is a significant inhibitor of the pre- scribed fires critical to minimizing wildfires and wildfire smoke. Legal tools exist to stop this building in the WUI and mitigate the damage to the houses there, but there is seldom the political will to use them, and the challenges in building a massive number of new homes in “safe” areas are daunting. Some scholars call for a lessened focus on “man- aged retreat” from wildfire-prone regions and more attention to building homes and neighborhoods that are more resilient to the fires that will come.465 461. KATHY LYNN, NATURAL HAZARDS OBSERVER, WILDFIRE AND RURAL POVERTY: DISASTROUS CONNECTIONS 10 (2003), https://scholarsbank.uoregon.edu/server/api/core/bitstreams/d4e c6337-85ee-4cd7-9df1-282c5ac2297f/content [On File with the Columbia Journal of Environ- mental Law]. 462. Kellen Browning & Michael Finch II, Wildfire Areas Have High Poverty and Small Tax Ba- ses. Will That Affect Future Construction?, SACRAMENTO BEE (Aug. 16, 2018), https: //www.govtech.com/em/preparedness/wildfire-areas-have-high-poverty-and-small-tax-ba- ses-will-that-affect-future-construction.html [https://perma.cc/P464-KY8E]; Timothy W. Col- lins, The political ecology of hazard vulnerability: marginalization, facilitation and the production of differential risk to urban wildfires in Arizona's White Mountains, 15 J. POL. ECOLOGY 21 (2008). 463. Eric Biber & Moira O’Neill, Building to Burn? Permitting Exurban Housing Development in High Fire Hazard Zones, 48 ECOLOGY L.Q. 943 (2021); F. NOEL PERRY ET AL., NEXT 10 & UC BERKELEY CTR. FOR CMTY. INNOVATION, REBUILDING FOR A RESILIENT RECOVERY: PLANNING IN CALIFORNIA’S WILDLAND URBAN INTERFACE (2021). 464. H. Anu Kramer et al., Post-wildfire rebuilding and new development in California indicates minimal adaptation to fire risk, 107 LAND USE POL’Y, no. 105502 (2021). 465. Liz Koslov & Kathryn McConnell, There Is No Way to Retreat From the Risk of Wildfires, N.Y. TIMES (Jan. 19, 2025), https://www.nytimes.com/2025/01/19/opinion/los-angeles-wild- fires-burn.html [On File with the Columbia Journal of Environmental Law]; Kathryn McConnell & Liz Koslov, Critically assessing the idea of wildfire managed retreat, 19 ENV’T RSCH. LETTERS, no. 041005 (2024). 288 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 50:S VI. DEFENDING AGAINST SMOKE So far, this Article has focused on how to reduce the amount of smoke that is generated, primarily by starting more prescribed fires and allowing more natural fires to burn, all to reduce the size of wild- fires, the damage they do, and the smoke they generate. Now, we turn to what can be done when the smoke comes. To begin with, other sources of air pollution should be minimized on high-smoking days. Some cities restrict truck entries, halt con- struction and the operations of polluting industrial facilities, and dis- courage outdoor grilling.466 This reduces the cumulative impacts of wildfire smoke and other sources of pollution. But much else can be done to help people who might be exposed to smoke. A. Warnings People with asthma or other respiratory conditions, the elderly, and others who are medically vulnerable should stay home during smoky conditions. If they do not have air conditioning at home and it is hot and smoky, they should go to cooling centers if available. Outdoor work should be restricted. Schools may be closed and outdoor events canceled if the smoke is bad enough. If the decision to do any of these cannot be made until the smoke has already arrived and is visible or can be smelled, chaos or disorder can result, and many people will be exposed to unhealthy smoke. Thus, much advance notice of a smoke condition is critical. This advance notice requires three things: monitoring what is hap- pening with the fire and smoke, modeling to predict where the smoke will go, and communicating with the people needing the information. The CAA calls for a nationwide air quality monitoring system,467 and requires states to establish systems to “monitor, compile, and analyze data on ambient air quality.”468 Despite some efforts at improvement, large swaths of rural America still have no air quality monitors.469 The 466. Smoke in the City: Recommendations for NYC Government to Protect New Yorkers from Poor Air Quality Events, 5BORO (June 15, 2023), https://fiveboro.nyc/smoke-in-the-city-recom- mendations-for-nyc-government-to-protect-new-yorkers-from-poor-air-quality-events/ [https ://perma.cc/UHS9-UYCJ]. 467. 42 U.S.C. § 7619(a). 468. 42 U.S.C. § 7410(a)(2)(b)(i). 469. Matthew Brown & Padmananda Rama, Gaps in US wildfire smoke warning network leave many exposed, ASSOCIATED PRESS (Aug. 26, 2021), https://apnews.com/article/health-fires-envi- ronment-and-nature-wildfires-science--9da6e376edb5648bed06f326e30c97d1 [On File with https://perma.cc/UHS9-UYCJ https://perma.cc/UHS9-UYCJ 2025] Wildfire Smoke and U.S. Law 289 government website AirNow.gov has real-time information about air quality around the country, and the government has several related programs to provide such information.470 Likewise, the state of Wash- ington posts a map called the Washington Smoke Blog, a partnership among state, county, and federal agencies, and tribes.471 However, the information on these sites is only as good as the monitors they rely on. In 2022, Google acquired a company called BreezoMeter, which pro- vides similar information.472 PurpleAir, which was started in 2015 by a “self-proclaimed tech and electronics geek” in Utah named Adrian Dybwad, sells air quality monitors of his design473 ranging in cost be- tween $209 and $289474 so that people can determine their own ex- posure, and these monitors generate data that is fed into a freely avail- able website.475 Some cities, including Washington, D.C., loan PurpleAir sensors to residents.476 Another company, IQAir,477 offers a somewhat similar service. In June 2023, after Canadian wildfires led to extremely high levels of smoke in New York City, the mayor was criticized for waiting the Columbia Journal of Environmental Law]; Sam Metz, Parts of now smoky rural Nevada lack government air monitors, ASSOCIATED PRESS (Sept. 18, 2020), https://apnews.com/general-news- b79ce80d22f17897413e940649731825 [On File with the Columbia Journal of Environmental Law]; ON FIRE: THE REPORT OF THE WILDLAND FIRE MITIGATION AND MANAGEMENT COMMISSION 101 (2023), https://www.usda.gov/sites/default/files/documents/wfmmc-final-report-09-2023.p df [On File with the Columbia Journal of Environmental Law]; Yuzhou Wang, Julian D. Marshall & Joshua S. Apte, U.S. Ambient Air Monitoring Network Has Inadequate Coverage under New PM2.5 Standard, 11 ENV’T SCI. & TECH. LETTERS 1220 (2024). See also Brenna C. Kelly et al., Racial and Ethnic Disparities in Regulatory Air Quality Monitor Locations in the US, 7 J. AM. MED. ASS’N NETWORK, no. e4499005 (2024). 470. ENV’T PROT. AGENCY, WILDFIRE SMOKE: A GUIDE FOR PUBLIC HEALTH OFFICIALS 33–37 (2019), https://document.airnow.gov/wildfire-smoke-guide.pdf [https://perma.cc/9FW9-DKF7]. 471. WASH. SMOKE BLOG, https://wasmoke.blogspot.com/ [https://perma.cc/RUW5-U9LE] (last visited Mar. 17, 2025). 472. Elihay Vidal, Google acquires Israeli climatetech startup BreezoMeter for over $200 mil- lion, CTECH (Sept. 20, 2022), https://www.calcalistech.com/ctechnews/article/sycbrdpbi [https://perma.cc/7WAN-EKDZ]. 473. Michelle Robertson, The story behind PurpleAir, which has become a necessity for Bay Area summers, SFGATE (Sept. 9, 2022), https://www.sfgate.com/news/article/The-story-behind- website-Bay-Area-PurpleAir-16393480.php [On File with the Columbia Journal of Environmen- tal Law]. 474. PURPLEAIR, https://www2.purpleair.com/products/list [https://perma.cc/M9NE-9K2V ] (last visited Dec. 13, 2024). 475. PURPLEAIR, https://map.purpleair.com/air-quality-standards-us-epa-aqi?opt=%2F1% 2Flp%2Fa10%2Fp604800%2FcC0#1/25/-30 [https://perma.cc/K5SF-6C9D] (last visited Dec. 13, 2024). 476. The PurpleAir Monitoring Project, D.C. DEP’T OF ENERGY & ENV’T, https://doee.dc.gov/ser- vice/purpleair-monitoring-project [https://perma.cc/XUM7-MJRJ] (last visited Dec. 13, 2024). 477. AirVisual Pro Indoor Monitor, IQAIR, https://www.iqair.com/us/air-quality-monitors/ [https://perma.cc/WQ5S-3F74] (last visited Mar. 17, 2025). 290 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 50:S several hours to issue an alert.478 A civic organization recommended that the City push an emergency alert message to all mobile devices in the area, similar to AMBER alerts for missing children, but this has not been done.479 Smoke that has traveled a long distance may lose its smell but not its dangers, so people may be exposed to high levels of PM2.5 and other pollutants in smoke and not realize it.480 This wildfire smoke in- creases the need for monitoring. In 2019, Congress passed, and President Trump signed a lengthy bill known as the John D. Dingell, Jr. Conservation, Manage- ment, and Recreation Act.481 One short provision requires the Secre- taries of Agriculture and Interior to establish the Interagency Wildland Fire Air Quality Response Program, which involves assign- ing “air resource advisors” to manage wildland fires.482 These advi- sors set up carbon monoxide and PM2.5 monitors, model wildfire smoke dispersion, and engage in outreach “to help the public and fire- fighters understand existing and predicted air quality, potential smoke health effects, how to reduce exposure, and how to recognize and mitigate safety hazards.”483 The program also uses meteorologi- cal models to help establish “the prescribed fire planning horizon.”484 The Infrastructure Investment and Jobs Act of 2021 and the Consol- idated Appropriations Act of 2023 contain substantial funds for air quality monitoring, modeling, and related activities.485 The National Defense Authorization Act for Fiscal Year 2024 authorizes the “Fire- Guard Program,” in which members of the National Guard may “ag- gregate, analyze, and assess multi-source remote sensing information for interagency partnerships in the detection and monitoring of 478. Ivan Pereira, New York City’s ‘smoke wave’ response time for warnings criticized, ABC NEWS (June 7, 2023), https://abcnews.go.com/US/new-york-citys-smoke-wave-response-time- warnings/story?id=99914653/ [https://perma.cc/V4KP-T4FP]. 479. 5BORO, supra note 466. 480. Sandra E. Hemmingway, Even when you don’t smell the smoke, it can affect your health, AIR QUALITY RSCH. CTR. (Sept. 21, 2023), https://aqrc.ucdavis.edu/news/even-when-you-dont- smell-smoke-it-can-affect-your-health. [https://perma.cc/LXT8-S3TJ]; Jayme DeLoss, Smoke in the air? Beware, and don’t trust your nose, CO. STATE UNIV. (June 9, 2023), https://source.colos- tate.edu/smoke-in-the-air-beware-and-dont-trust-your-nose/ [https://perma.cc/2DK8-VSAX]. 481. John D. Dingell, Jr., Conservation, Management, and Recreation Act of 2019, Pub. L. No. 116-9, 133 Stat. 580 (2019). 482. 133 Stat. 617, 43 U.S.C. § 1748b-1(f). 483. INTERAGENCY WILDLAND FIRE AIR QUALITY RESPONSE PROGRAM, 2021 ANNUAL REPORT: A NATION IN WILDFIRE SMOKE 1 (2021). 484. Id. at 10. 485. Liz Johnson, Congressional Efforts to Minimize the Impacts of Wildfires, NAT. RES. & ENV’T, Spring 2024, at 54. 2025] Wildfire Smoke and U.S. Law 291 wildfires, and to support any emergency response to such wild- fires.”486 In November 2023, twenty members of Congress wrote to EPA, NOAA, and the CDC asking that smokewave alerts be issued via the nationwide Wireless Emergency Alerts system.487 At the state level, in 2018, the California Legislature enacted a law requiring the state “to enhance air quality and smoke monitoring, and to provide a public awareness campaign regarding prescribed burns.”488 Efforts to expand monitoring and public alerts are growing in several other states.489 Obtaining the monitoring data is the first step. Turning that into predictions is very challenging, as there are an extraordinary number of variables—the nature, extent, moisture content, etc., of the vegeta- tion being burned; efforts to put the fires out; current and expected weather conditions at all points between the fire(s) and those who will be exposed; and the topography along the way, just to mention a few. While the techniques are improving rapidly, it has been said that “smoke forecasts today are about as reliable as weather forecasts were forty-five years ago.”490 Several government agencies have issued guidance on what to do in case of heavy wildfire smoke conditions.491 Many state and local agencies have smoke response plans. A California statute requires each county to develop a strategy for use in the case of a “significant 486. National Defense Authorization Act for Fiscal Year 2024, Pub. L. No. 118-31, § 515, 137 Stat. 136 (2023). 487. Kellie Lunney, Democrats Want Wildfire Smoke Added to Severe Weather Alerts, BLOOMBERG GOV’T (Nov. 3, 2023), https://news.bgov.com/bloomberg-government-news/demo- crats-want-wildfire-smoke-added-to-severe-weather-alerts [On File with the Columbia Journal of Environmental Law]. 488. CAL. PUB. RES. CODE § 4495 (2025). 489. Blaine Friedlander, Cornell expands wildfire smoke sensor network in New York, CORNELL CHRON. (Oct. 25, 2023), https://news.cornell.edu/stories/2023/10/cornell-expands-wildfire- smoke-sensor-network-new-york [https://perma.cc/4JWY-SDJF]; Kristoffer Tigue, The Midwest Could Be in for Another Smoke-Filled Summer. Here’s How States Are Preparing, INSIDE CLIMATE NEWS (May 20, 2024), https://insideclimatenews.org/news/20052024/midwest-smoky-sum- mer-prep/ [https://perma.cc/JE5C-Z5UR]. 490. Carolyn Kormann, Why It’s So Hard to Forecast Wildfire Smoke, NEW YORKER (Aug. 8, 2023), https://www.newyorker.com/science/elements/why-its-so-hard-to-forecast-wildfire- smoke [https://perma.cc/TN52-TC9K]; e-mail from Jeff Masters, Metereologist for Yale Climate Connections, (Sept. 5, 2024) [On File with the Columbia Journal of Environmental Law]. 491. E.g., ENV’T PROT. AGENCY, supra note 470; Are YOU Smoke Ready?, INTERAGENCY WILDLAND FIRE AIR QUALITY RESPONSE PROGRAM (2024), https://www.wildlandfiresmoke.net/smoke-ready [https://perma.cc/MDM7-FUL4]; WASH. DEP’T OF HEALTH, Severe Smoke Episodes, in WASHINGTON STATE COMPREHENSIVE EMERGENCY MANAGEMENT PLAN, WILDFIRE RESPONSE, app. 5, attachment 1 (2018), https://doh.wa.gov/sites/default/files/legacy/Documents/4300/ESF8-Appendix5-At t1-SevereSmokeEpisodes.pdf?uid=64b72ee109ab1 [https://perma.cc/SG4N-R7WC]. 292 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 50:S air quality event caused by wildfires or other sources.”492 A Washing- ton state statute directs state agencies to “conduct community en- gagement and outreach related to wildfire smoke risks and impacts, particularly in regions of the state that experience disproportionately high levels of air contaminants and pollutants.”493 B. Reducing Residential Exposure During high smoke conditions, the most common advisory issued is to stay indoors. As EPA has indicated, “[t]he effectiveness of this strat- egy depends on how well the building limits smoke from coming in- doors and on efforts to minimize indoor pollution sources. Staying in- doors will provide some protection from smoke, especially in a tightly closed, air-conditioned home where the air conditioner recirculates indoor air.”494 In one California study, the concentration of PM2.5 in buildings without air conditioning and some older buildings nearly tripled during wildfire days.495 In 2008, California enacted a require- ment that new homes have mechanical ventilation,496 and in 2023, in the wake of the COVID-19 pandemic, the CDC set a target of five air changes per hour in buildings.497 These requirements can be met us- ing fans that bring in air from the outside; without filtration, such as that provided by air conditioners, this ventilation can bring wildfire smoke inside a building. The American Society of Heating, Refrigerat- ing and Air-Conditioning Engineers (ASHRAE) has issued a guideline, “Protecting Building Occupants from Smoke During Wildfire and Pre- scribed Burn Events,” that calls for (among other things) filters on air intakes and on internal air circulation systems.498 ASHRAE and the Association of Home Appliance Manufacturers have developed 492. Cal. A.B. 619 § 3; CAL. HEALTH & SAFETY CODE § 107250(f). 493. Wash. H.B. 1578 § 2. 494. ENV’T PROT. AGENCY, supra note 470, at 18. 495. Yutong Liang et al., Wildfire Smoke Impacts On Indoor Air Quality Assessed Using Crowdsourced Data In California, 118 PROC. NAT’L ACAD. SCIS., no. e2106478118, at 1 (2021). 496. WANYU R. CHAN ET AL., LAWRENCE BERKELEY NAT’L LABORATORY, VENTILATION AND INDOOR AIR QUALITY IN NEW CALIFORNIA HOMES WITH GAS APPLIANCES AND MECHANICAL VENTILATION 13 (2020). 497. Brenda Goodman, CDC Sets First Target For Indoor Air Ventilation To Prevent Spread Of Covid-19, CNN (May 12, 2023), https://www.cnn.com/2023/05/12/health/cdc-new-ventila- tion-target/index.html [https://perma.cc/8CL4-V98E]. 498. Tom Javins et al., Protecting Building Occupants From Smoke During Wildfire and Pre- scribed Burn Events, AM. SOC’Y HEATING, REFRIGERATING AND AIR-CONDITIONING ENG’RS J., March 2021, at 38. See also Patrick Sisson, The Quest for the Smoke-Proof Building, BLOOMBERG (June 12, 2023), https://www.bloomberg.com/news/articles/2023-06-12/wildfire-smoke-draws-atten- tion-to-indoor-air-quality-technology [On File with the Columbia Journal of Environmental Law]. 2025] Wildfire Smoke and U.S. Law 293 standards for ventilation and air cleaning equipment for various ap- plications in order to maintain adequate indoor air quality in the face of wildfire smoke.499 The filters should have a high MERV rating (Min- imum Efficiency Reporting Value), but it is important that the house’s air handler be strong enough to suck the air through the thickness of a high-efficiency filter.500 There is no general law in the U.S. requiring air conditioning. Few, if any, state or local laws expressly require building owners to protect their occupants against wildfire smoke. The usual housing codes and landlord-tenant codes have language concerning safe and healthful conditions and habitability that arguably could be applied to un- healthful smoke levels, but they are not specific enough to actually in- duce owners to install air conditioning.501 A bill requiring air condi- tioning in residential buildings was introduced into the New York City Council in July 2024, in the midst of a heat wave;502 it was not enacted, and it would have been in tension with the city’s law requiring decar- bonization of buildings. In some states, certain people, especially those with low incomes or certain medical conditions, are able to secure financial assistance to purchase air filters and air conditioners, and to pay for the power to run air conditioners, through various government programs. These include Medicaid, the Children’s Health Insurance Program, the Low- Income Home Energy Assistance Program, asthma programs funded by the CDC, home weatherization programs funded by the Depart- ment of Energy, or home repair programs funded by the Department of Housing and Urban Development.503 499. ENV’T PROT. AGENCY, supra note 470, at 19–24; ENV’T L. INST., supra note 354, at 9–14. See also Wildfire Smoke Factsheet: Indoor Air Filtration, ENV’T PROT. AGENCY, https://www.epa.gov/sites/default/files/2018-11/documents/indoor_air_filtration_factsheet- 508.pdf [On File with the Columbia Journal of Environmental Law] (last visited Mar. 31, 2025). 500. DAVID POGUE, HOW TO PREPARE FOR CLIMATE CHANGE: A PRACTICAL GUIDE TO SURVIVING THE CHAOS 429 (Simon & Schuster 1st ed., 2021) 501. ENV’T L. INST., supra note 354, at 77–80; Michael B. Gerrard, Heat Waves: Legal Adaptation to the Most Lethal Climate Disaster (So Far), 40 U. ARK. LITTLE ROCK L. REV. 515, 537–38 (2018). 502. Ali Bauman, NYC Landlords Would Be Required To Provide Air Conditioning For Tenants Under Newly Introduced Bill, CBS NEWS (July 19, 2024), https://www.cbsnews.com/newyork/ news/nyc-air-conditioning-bill/ [https://perma.cc/8S45-7NV5]. 503. ENV’T L. INST., supra note 354, at 60–67; ANDREA NISHI, DIANA HERNANDEZ & MICHAEL B. GERRARD, COLUMBIA CTR. ON GLOBAL ENERGY POL’Y, ENERGY INSECURITY MITIGATION: THE LOW INCOME HOME ENERGY ASSISTANCE PROGRAM AND OTHER LOW-INCOME RELIEF PROGRAMS IN THE US 5, 23–26 (2023), https://scholarship.law.columbia.edu/faculty_scholarship/4196 [https://perma.cc/NC C3-DBEQ]. 294 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 50:S C. Cleaner Air Centers Some cities have established “cleaner air centers” for people who cannot safely stay home during high smoke conditions because, for example, they lack air conditioning or filtration. During normal con- ditions, these places are often community centers, armories, libraries, theaters, church recreation halls, or other uses. Many of them are also used as cooling centers during high heat days, or shelters for people displaced by floods, wildfires, or other conditions. FEMA may provide support for these centers during a presidentially declared emergency or a major disaster. State and local emergency management agencies implement emergency shelter programs.504 California and Oregon (two states where wildfires have been espe- cially severe) have enacted legislation specifically for cleaner air cen- ters.505 Seattle and San Francisco are among the cities that have es- tablished such centers.506 D. Schools Children are especially at risk from wildfire smoke.507 Children benefit from regular physical activity, but breathing smoky air while engaging in such activity is bad for them, and EPA has issued guidance on what levels of air quality should lead to restrictions on outdoor ac- tivity.508 However, even indoors the air can be harmful on smoky days. An Environmental Law Institute (ELI) study published in 2023 found that most states have ample authority to address ventilation in schools, but most current state policies lack clear ventilation and 504. ENV’T L. INST., supra note 354, at 45–47. 505. Id. at 47–53. 506. Todd Woody & Linda Poon, NYC, DC Lag Western States in Wildfire Smoke Preparations, BLOOMBERG LAW (June 9, 2023), https://news.bloomberglaw.com/environment-and-energy/ nyc-dc-follow-example-of-western-states-to-set-wildfire-policy [On File with the Columbia Journal of Environmental Law]; Claire Elise Thompson, Threatened By Wildfire Smoke, West Coast Cities Are Piloting Clean-Air Centers, GRIST (Aug. 2, 2023), https://grist.org/looking-for- ward/threatened-by-wildfire-smoke-west-coast-cities-are-piloting-clean-air-centers/ [On File with the Columbia Journal of Environmental Law]. 507. Stephanie M. Holm, Mark D. Miller & John R. Balmes, Health Effects of Wildfire Smoke in Children and Public Health Tools: A Narrative Review, 31 J. EXPOSURE. SCI. & ENV’T EPIDEMIOLOGY 1 (2021). 508. ENV’T PROT. AGENCY, AIR QUALITY AND OUTDOOR ACTIVITY GUIDANCE FOR SCHOOLS (2014), https://document.airnow.gov/air-quality-and-outdoor-guidance-for-schools.pdf [On File with the Columbia Journal of Environmental Law]. 2025] Wildfire Smoke and U.S. Law 295 filtration requirements.509 Another ELI study found that “[f]ew states have established minimum air filtration standards for existing codes other than the building code requirement in effect at the time of con- struction or system installation, and those building codes typically in- clude minimal if any filtration efficiency standards.”510 The importance of ventilation and filtration became more of a pressing issue at the height of the COVID-19 pandemic, and findings emerged that schools with good ventilation and filtration had fewer COVID-19 cases than the much larger number of schools without them.511 California adopted legislation in 2022 that sets minimum fil- tration efficiency and ventilation standards for existing schools. Mon- tana’s health agency adopted regulations relating to infiltration of out- door air and filtration efficiency for public schools. A Connecticut law requires schools to undertake comprehensive ventilation evaluations every five years, though the law does not set minimum filtration effi- ciency requirements.512 High smoke often leads to the cancellation of outdoor events, whether or not they are associated with schools. The state of Wash- ington has issued formal guidance on when this should be done.513 E. Federal Assistance The Stafford Act is the principal federal statute for disaster prepa- ration, response and recovery. It is administered by FEMA. The stat- ute authorizes the President to declare a major disaster upon request from a governor or Tribal chief executive.514 The Stafford Act defines a “major disaster” as: any natural catastrophe (including any hurricane, tornado, storm, high water, winddriven water, tidal wave, tsunami, earthquake, volcanic eruption, landslide, mudslide, snowstorm, or drought), or, regardless of cause, any fire, flood, or explosion, in any part of the United States, which in the determination of the President causes damage of sufficient sever- ity and magnitude to warrant major disaster assistance under this Act 509. ENV’T LAW INST., VENTILATION IN SCHOOLS: A REVIEW OF STATE POLICY STRATEGIES i-ii (2023). 510. ENV’T L. INST., supra note 354, at 82. 511. Apoorva Mandavilli, Bad Ventilation Remains Threat to U.S. Students, N.Y. TIMES (Aug. 27, 2023), https://www.nytimes.com/2023/08/27/health/schools-indoor-air-covid.html [https: //perma.cc/K3SR-F53Q]. 512. ENV’T L. INST., supra note 354, at 82–85. 513. WASH. DEP’T OF ECOLOGY & WASH. DEP’T OF HEALTH, GUIDANCE FOR CANCELING OUTDOOR EVENTS OR ACTIVITIES AND CLOSING SCHOOLS (2024), https://doh.wa.gov/sites/default/files/leg- acy/Documents/4300/334-428-WildfireSmokeClosureGuidance_final3.pdf?uid=625f19d9df cc0 [On File with the Columbia Journal of Environmental Law]. 514. 42 U.S.C. § 5170. 296 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 50:S to supplement the efforts and available resources of States, local gov- ernments, and disaster relief organizations in alleviating the damage, loss, hardship, or suffering caused thereby.515 FEMA has received several state requests to declare a major disas- ter based on extreme heat events, but it has never granted such a re- quest;516 while wildfires have often led to disaster declarations in the burned areas, there have been no disaster declarations for the areas affected by the smoke but not the flames.517 On June 17, 2024, the Center for Biological Diversity (CBD), on behalf of itself and thirty other NGOs and labor unions, petitioned FEMA to institute a rulemak- ing to include extreme heat and wildfire smoke as major disasters un- der the Stafford Act.518 The petition argues that the “any natural ca- tastrophe including” language in the statute means that the list of specific types of disasters that follows is not exclusive, and that the number of people who die from extreme heat and smoke events war- rants treating such events as disasters that warrant federal assistance. The petition asks FEMA to amend its regulations to add extreme heat and smoke events to the list of disasters that qualify for various forms of disaster assistance. The petition states that “emergency funding for smoke events would allow governments to erect clean air community centers; pro- vide crucial supplies, like air filtration technology and masks; and sup- ply medical services and related supplies for those harmed by the health effects of smoke.”519 FEMA’s director has publicly reacted positively to the CBD peti- tion,520 but as of this writing, FEMA has not acted on the petition.521 515. 42 U.S.C. § 5122(2) (emphasis added). 516. Michael B. Gerrard, Killer Heat Waves Warrant FEMA Action Under New Authority, BLOOMBERG LAW (July 23, 2024), https://www.bloomberglaw.com/bloomberglawnews/envi- ronment-and-energy/XBFDOSTC000000?bna_news_filter=environment-and-energy [On File with the Columbia Journal of Environmental Law]. 517. Petition for Rulemaking, Pursuant to the Administrative Procedure Act, to Include Extreme Heat and Wildfire Smoke as Major Disasters Under the Stafford Act, CTR. FOR BIOLOGICAL DIVERSITY (June 17, 2024), https://www.biologicaldiversity.org/programs/energy-justice/pdfs/EMBAR GOED_FEMA-Petition-on-Heat-and-Wildfire-Smoke.pdf [https://perma.cc/65JC-AWSL]. 518. Id. 519. Id. at 49. 520. Gabe Castro-Root, Heat and Smoke Could Qualify as Disasters, FEMA Chief Says, BLOOMBERG LAW (July 25, 2024), https://news.bloomberglaw.com/environment-and-en- ergy/heat-and-smoke-could-qualify-as-disasters-fema-chief-says [On File with the Columbia Journal of Environmental Law]. 521. E-mail from Jean Su, Dir. of Energy Justice Program, Center for Biological Diversity (Dec. 15, 2024) [On File with the Columbia Journal of Environmental Law]. 2025] Wildfire Smoke and U.S. Law 297 VII. WHAT THE LAW CAN DO The law can do much to reduce greenhouse gas emissions.522 How- ever, so much heat is baked into the system (especially the oceans), and so many emissions will continue around the world regardless of any imaginable regulations and technologies, that the earth will con- tinue to warm for at least several more decades.523 But in the mean- time, there is much the law can do to help people and communities reduce wildfire smoke and its impacts. As a general matter, federal and state policies should be modified to generally leave wildfires alone if they do not threaten buildings or in- frastructure. This will continue the natural process of clearing away the forest fuel that otherwise leads to much more intense and danger- ous fires. In areas where fires must be suppressed, prescribed burns and (where necessary) mechanical thinning should be conducted vig- orously, without unnecessary clearcutting and other destructive ac- tions. The environmental review of these actions should be expedited through the use of more categorical exclusions from NEPA, narrower scopes for EISs, more programmatic EISs (allowing many projects to be considered together), and other means. State permitting processes should be streamlined to reduce the “bureaucratic friction” that inhib- its prescribed burns.524 An automated system could be developed to integrate smoke and air permitting, as is done in parts of California. Financing prescribed burning and mechanical thinning is a major challenge.525 A great deal of money goes to suppressing wildfires; much less goes to starting prescribed fires. For example, California fire agencies in 2020 spent $2.2 billion on fire suppression and $300 million on everything else, including fuels management.526 During the period 2019 through 2023, the federal government spent an average of just under $3 billion per year on fire suppression.527 The amount 522. See MICHAEL B. GERRARD & JOHN C. DERNBACH, LEGAL PATHWAYS TO DEEP DECARBONIZATION IN THE UNITED STATES (2019). 523. Press Release, World Meteorological Organization, Greenhouse Gas Concentrations Surge Again To New Record In 2023 (Oct. 28, 2024), https://wmo.int/news/media-cen- tre/greenhouse-gas-concentrations-surge-again-new-record-2023 [https://perma.cc/73DX-Q 83F]. 524. CTR FOR L., ENERGY, & THE ENV’T, UNIV. OF CAL., BERKELEY L. SCHOOL, supra note 220, at 43. 525. SCHULTZ, supra note 190, at 17. 526. MICHAEL WARA, STANFORD WOODS INST. FOR THE ENV’T, A NEW STRATEGY FOR ADDRESSING THE WILDFIRE EPIDEMIC IN CALIFORNIA 14 (2021). 527. NATIONAL INTERAGENCY FIRE CENTER, Suppression Costs, https://www.nifc.gov/fire-infor- mation/statistics/suppression-costs [On File with the Columbia Journal of Environmental Law] (last visited Mar. 17, 2025). 298 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 50:S of federal money spent on prescribed burning is on the order of $500 million per year.528 In contrast, anticipated expenditures on clean en- ergy under the Inflation Reduction Act and the Infrastructure Invest- ment and Jobs Act have been estimated at more than $430 billion from 2022 through 2031,529or $43 billion/year. A major purpose of these expenditures is to transition from fossil fuels to clean energy in an ef- fort to reduce GHG emissions. Thus, the annual amount the federal government spends (without regard to state, city and private expend- itures) on clean energy is about ninety times the amount spent on pre- scribed fires, even though wildfires—some of which could have been reduced by prescribed fires—are going a long way to wiping out the GHG reductions caused by clean energy. Two of the leading academic experts on wildfires, William Boyd and Michael Wara, have different proposals for financing prescribed burns. As noted above, Boyd would impose liability on the federal government for the CO2 emissions from its burning forests. Wara, fo- cused on California, would set up a new state agency with a starting budget of around $500 million to conduct prescribed burns and other fuel management on state and private lands.530 The federal govern- ment, which owns about 57% of the forested lands in California,531 would presumably take care of its own. Natural fires and prescribed burning should be treated the same as each other under the CAA. The current regulations that ignore smoke from wildfires but strongly regulate smoke from prescribed fires go in the wrong direction. Air quality regulators should approve pre- scribed burns unless there are strong reasons for denial; and, as one commentator suggested, “exclude uncontrolled wildfires from the ex- ceptional events rule in order to incentivize the use of prescribed fires and managed wildfires for air quality management.”532 A new cate- gory of “landscape emissions” could be created, subject to different penalties and incentives. Prescribed fire could be defined as a 528. Lea Schram von Haupt, Fighting Fire with Fire: Proposed Legislation Would Address the Fire Deficit, UNIV. OF ARIZ., NATURAL RES. USE & MGMT. CLINIC (Oct. 11, 2021), https://west- ernlandsblog.arizona.edu/fighting-fire-fire-proposed-legislation-would-address-fire-deficit [On File with the Columbia Journal of Environmental Law]. 529. DANIEL C. STEINBERG ET AL., NAT’L RENEWABLE ENERGY LABORATORY, EVALUATING IMPACTS OF THE INFLATION REDUCTION ACT AND BIPARTISAN INFRASTRUCTURE LAW ON THE U.S. POWER SYSTEM 1 (2023). 530. Id. at 15. 531. Id. at 12. 532. Ben Richmond, Beyond the Exceptional Events Rule: How the Local Implementation of Air Quality Regulations Affect Wildfire Policy, 46 ECOLOGY L.Q. 343, 369–70 (2019). 2025] Wildfire Smoke and U.S. Law 299 “reasonably available control technology” and could be included in state implementation plans.533 More states should follow the examples of the six states that shield those who undertake prescribed burns, or allow it on their land, from liability up to a gross negligence standard. Development in the WUI should be disfavored. While complete bans on use of privately-owned land could be deemed a taking, there is no legal obligation to extend public infrastructure such as roads and sewers into undeveloped areas, to provide tax or other incentives to build there, or to lease public land. Transfer of development rights programs can allow landowners to derive value from their land while building elsewhere.534 However, it must be acknowledged that re- stricting development in the WUI is in tension with the need in some areas for much more housing. In WUI areas that are being developed, building codes should re- quire fire-resistant construction and materials and adequate defensi- ble space for new buildings. Reconstruction of areas damaged by wild- fire should be discouraged, and where it is allowed, building should be to new, heightened standards. Incentives such as tax credits and rebates should be provided to encourage retrofit of existing buildings in the WUI to make them fire resistant, and application and processing fees should be waived. Cities should provide free fire vulnerability audits (similar to energy efficiency audits). Retrofitting should be mandatory (after an adequate warning period) for the most danger- ous conditions, such as wooden roofs, in high hazard areas. Where permissible, federal and state financial assistance to facilities in the WUI should be conditioned on adherence to fire resistance standards. New subdivisions, campuses, and other large developments in the WUI should be designed with buffers against wildfires such as wet- lands, open meadows, and ballfields. Inspections and enforcement should ensure compliance with defen- sible space and weed-clearing requirements. Homeowner associa- tions should be required to carry this out in the areas they control. In such areas, property purchasers should be required to sign covenants obligating them to comply with these requirements. 533. Several of these techniques were proposed in Alistair Hayden & Susan Prichard, Consider modifying the Clean Air Act to incentivize increased use of beneficial fire, in WILDLAND FIRE POLICY RECOMMENDATIONS, FED’N OF AM. SCIENTISTS, supra note 325. 534. Sarah J. Stevenson, Banking on TDRs: The Government’s Role as Banker of Transferable Development Rights, 73 N.Y.U. L. REV. 1329 (1998). 300 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 50:S FEMA (or states applying FEMA guidelines) should prepare and fre- quently update maps of fire hazard zones. These maps should be available online and be provided to all prospective purchasers, ten- ants and builders so that they are aware of the risks in the places they are contemplating buying, leasing or building. Insurance companies could use these maps in setting rates. Public education campaigns should be conducted to help residents and businesses be aware of fire risks and precautions. Public education is also needed to increase tol- erance for the smoke from prescribed fires. The governments in the WUI with zoning and building code author- ity—typically counties or municipalities—should be required to share in firefighting costs, to give them added incentives to consider fire risks. States should not restrict the ability of insurance companies to raise rates to reflect true wildfire risks, or to refuse to renew policies based on these risks. States, perhaps through their public utility commissions, should provide clear guidance to electric utilities about vegetation removal and other actions necessary to reduce fire risk, and should assure rate recovery for these expenditures. Utilities that follow this guidance should not be subject to strict liability should fires ensue, but only lia- bility based on negligence. More measures should be undertaken to defend people against smoke: better warning systems, enabled by more air quality monitors; more air conditioners and air filters If all of this is done, people and communities will be much better able to cope with the extreme temperatures and increased fires that are in our future. I. Introduction II. Wildfires: Growth, Causes, and Impacts A. Growth and Causes of Wildfires B. Impacts of Wildfire Smoke III. Ever-changing Fire Suppression Policies IV. Prescribed Fire: The Principal Solution V. Legal Impediments to Prescribed Fire A. Regulation of Prescribed Fire 1. Clean Air Act 2. NEPA 3. State Approvals B. Liability 1. Emissions 2. Starting Intentional Fires 3. Employers 4. Insurance 5. Smoke Across Borders C. Building near the Woods VI. Defending Against Smoke A. Warnings B. Reducing Residential Exposure C. Cleaner Air Centers D. Schools E. Federal Assistance VII. What the Law Can Do