Wildfire Smoke and U.S. Law

Abstract

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 efforts 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, environmental law and climate policy have paid relatively little attention to wildfires.  The smoke from these fires—a major cause of illness and death, even thousands of miles from the blazes—is mostly unregulated.  Efforts to impose liability on anyone for wildfires, except electric utilities, 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 impacts 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 liability 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 recommendations for how the law can reduce wildfire smoke and its impacts.