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The Clean Air Act isn’t helping.

Wildfire smoke is making air pollution in the United States a lot worse, as anyone in New York City last week can attest. Yet the regulatory tools that have done so much to reduce emissions from cars and smokestacks may actually be getting in the way of effectively managing forests in order to prevent massive, out of control fires.
The increasing importance of wildfire smoke, and the structural policy changes required to fight it — from overhauling forestry practices to worldwide reductions in greenhouse gas emissions — may require a rethinking of how public policy is supposed to protect people from pollution.
Catalytic converters in cars have visibly cleared the air even in the most traffic-jammed cities; getting rid of lead in gasoline has made children smarter; efforts to fight acid rain were so successful that the paucity of it is now seen as a reason to ignore current environmental problems. But all these efforts were aimed at limiting emissions from particular sources, like factories and vehicles, not fires that consume tens of thousands of acres across a mixture of federally managed and privately held land.
This is the paradigm of pollution policy, Kirsten Engel, a law professor at the University of Arizona, told me. Policymakers go to “particular point sources” like factories, cars, and refineries to keep the pollutants they generate below national standards. “Of course wildfires don’t fit that paradigm," she said. “They’re not a point source that’s easily controlled.”
Under the Clean Air Act, states and regions are mandated to meet National Ambient Air Quality Standards, levels of six air pollutants that the EPA sets out — including the tiny particulates that wildfires spew out, known as PM2.5. But many of those wildfire days are essentially not counted under the Clean Air Act rules, as they’re ruled to be “exceptional.” The logic behind this framework is that states should not be held responsible for emissions they can’t reasonably control. Without the exceptional event framework, extreme wildfire events could essentially force mass shutdowns of industry in regions affected by it.
But the framework is being pushed to its limits. Utah State University researcher Liji David found that, between 2000 and 2017, “Wildland fires were the primary driver for PM2.5 exceptional events,” with regions in the western United States having the most such events. This means that a growing source of a form of pollution that’s supposed to be limited under the Clean Air Act is not even falling within the law’s purview. And this is having dramatic effects on air pollution nationally, to the point of partially reversing the gains under the Clean Air Act.
According to research by Stanford economist Marshall Burke and others, “since 2016, wildfire smoke has significantly slowed or reversed previous improvements in average annual PM2.5 concentrations in two-thirds of U.S. states, eroding 23% of previous gains on average in those states (equivalent to 3.6 years of air quality progress) and over 50% in multiple western states.”
Research by Marissa Childs, who contributed to the Burke paper, found that some Western areas “saw decadal increases in an annual smoke PM2.5...comparable in absolute magnitude to the reduction in PM2.5 brought about by the Clean Air Act in the US.”
The solution, explained Michael Wara, a researcher at Stanford, is a complete rethinking of forestry, indoor air quality, and of course, emissions reductions. This would entail overhauling forest management, including a massive increase in prescribed burns on federal, state, and private land. These intentional fires can remove fuel from a forest floor that would spark a larger, uncontrolled fire. Doing controlled burns adequate to the scale of the wildfire challenge would require essentially a total reversal of about a century of forest management policy in the United States.
Here the Clean Air Act isn’t merely silent, as it can be with wildfire, but may be actively inhibiting good policy. Whereas wildfire smoke can and often does get waived by states under the exceptional event framework, smoke from a prescribed burn can often is still counted or the prescribed burns are not done at all in order to maintain compliance with air quality standards. Advocates for controlled burns argue that the net amount of smoke — and therefore pollution — would be lower with a more aggressive and permissive policy for prescribed burns.
According to a Government Accountability Office report, officials at the Department of Interior want more leeway to conduct prescribed burns but feel inhibited by the EPA's use of the exceptional events rule and air quality standards. Land management officials also warned that their hands will be increasingly tied in areas that are already above or near the upper limit of air quality standards, particularly, as the EPA has proposed, if those standards become more strict.
One legal scholar has argued that the exceptional events designation should be flipped on its head entirely, and that the Environmental Protection Agency “should only exempt pollution from wildfire smoke when states take steps to mitigate extreme and increasing wildfire risk through effective land management with prescribed burns.”
“The EPA is philosophically at this point still not convinced of that idea,” Wara said.
Even beyond the rules around exceptional events, Wara said, more funding and a different culture of forest management are needed. “We don’t have a workforce, we don’t have a budget, we don’t have a career line that would support this kind of work. If you’re going to treat land in any way at the scale we’re talking about, we need an army,” Wara said.
Beyond wildfire prevention, there’s also the immediate responses to bad air, namely well insulated homes and workspaces with adequate filtration. “In the meantime you can’t let people die,” Wara said. “People need protection,” including air filters for seniors, who are at a higher risk of negative health outcomes from smoke.
“The most basic idea of the Clean Air Act and all environmental laws is to protect people and protect public health,” Wara said. “It’s not climate change, it’s not cute little creatures. The big political movement that drove change was to protect people. And I think we need to get back to that basic idea when it comes to the Clean Air Act.”
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The proposal resolves an issue that has bedeviled the industry since 2022.
Is Rosemont about to be BAAJA blasted away?
In a 2022 decision formally titled Center for Biological Diversity v. U.S. Fish & Wildlife Service, the Ninth Circuit Court of Appeals ruled that Rosemont Copper Company its claim under the General Mining Act of 1872 did not give the company license to dump literally millions of tons of waste rock on adjacent Forest Service land. Though Rosemont argued that the use fell under the law’s provisions for “mill sites” on public lands used for mining, the court found that because the parcel in question lacked valid mining claims of its own, the Mining Act did not justify its use under its own permissive regime.
The conservative energy group ClearPath Action described the decision as “a significant departure from long-held mining practices.” Industry groups said that the decision would vastly extend and complicate the process of mining on public lands by putting areas with mineral claims into a separate legal and permitting category from adjacent land that had customarily been considered part of the mining development.
Almost immediately after the court decision, the mining industry and its allies in Congress got to work trying to “fix” the Rosemont decision in order to restore the pre-2022 status quo.
One proposed fix — the Mining Regulatory Clarity Act — has been introduced several times in both houses of Congress, including as far back as 2023 in a Senate bill co-sponsored by Catherine Cortez Masto of Nevada and Jim Risch of Idaho.
Another version of the bill, sponsored by Nevada Republican Mark Amodei, Nevada Democrat Steven Horsford, and Alaska Republican Mark Begich, passed the House of Representatives late last year with a handful of Democratic votes. Both bills would have explicitly established that miners could claim public land for waste rock disposal as long as it was “reasonably necessary” and “reasonably incident” to mineral development.
Now they may all be getting their wish. The comprehensive permitting bill introduced by Republican and Democratic leaders in the Senate known as the Bipartisan American Affordability and Jobs Act, includes the full text of the Mining Regulatory Clarity Act
Both parties have been trying to jumpstart the domestic mining and critical minerals industry, especially for materials key to energy sectors, such as copper and lithium. The long lead time it takes to permit and open a mine is one of the major barriers to developing the domestic mining industry (along with nasty price competition from overseas miners and refiners, especially those controlled by Chinese firms).
This is not the first time a bipartisan permitting bill has included what’s known a “Rosemont fix.” There was also one in the 2024 Energy Permitting Reform Act, and in the Senate FREEDOM Act introduced by Cortez Masto and Arkansas Republican Tom Cotton this past summer.
You may have noticed lots of Nevadans associated with these bills. That’s because “Nevada is to mining as Texas is to oil and gas,” Aaron Mintzes, deputy policy director of Earthworks, a frequent and vigorous adversary of the mining industry, told me
While environmental groups generally supported the Rosemont decision, some groups supporting the clean energy industry backed the Mining Regulatory Clarity Act, including Bipartisan Policy Center’s lobbying arm, the clean energy trade group Advanced Energy United, and the Zero Emission Transportation Association, which includes several copper and lithium companies among its members. (Mintzes described ZETA as “the lithium mining lobby” and an “outlier” among clean energy groups in supporting the Mining Regulatory Clarity Act.)
Instead of a technical fix that would comply with the spirit of existing law, Mintzes described the changes to mining regulation in BAAJA as giving mining companies “a nearly unlimited amount of public lands for their waste dumps, for their roads, for their pipelines, for their transmission lines, and for any other purpose that would be reasonably incident to mining.” That goes beyond the mill sites envisioned by the 1872 law, he said.
The National Mining Association, on the other hand, praised the bill Wednesday, with its president Rich Nolan saying in a statement that the existing permitting process is “mired in duplication, endless litigation and uncertainty,” and that “elected officials on both sides of the aisle have long acknowledged that the status quo cannot continue.”
Albert Gore, the executive director of the Zero Emission Transportation Association, told me that there was a “broad recognition” among miners, refiners, and operators that the Rosemont decision required a statutory fix.
“It needed to be clarified in order to remove uncertainty. It's hard enough to invest in mineral production in the United States,” Gore said.
BAAJA’s mining provisions also include the Abandoned Hardrock Mine Fund, which would be funded by maintenance fees collected by the Department of the Interior under the same 19th century mining law. This fund would support a program established by the 2021 Bipartisan Infrastructure Law to clean up abandoned mining sites.
In a transcript of a strategy call between environmental organizations on the BAAJA published by Punchbowl, Mintzes described the fund as “the one good thing I spotted in this bill so far.”
Exploratory projects are making a splash in Maine and Alaska.
A legal brawl is brewing over what could be the nation’s first underwater data centers.
Two subsidiaries of a new LLC named DeepGreen have applied for “preliminary” permits from the Federal Energy Regulatory Commission that would give four years of permission for studies and analysis towards constructing underwater data centers off remote coastlines in Maine and Alaska. The data centers as proposed would be powered entirely by tidal energy, as in, the power of waves themselves – a technological innovation from hydropower still being piloted around the world. Project descriptions submitted to FERC lay out what these data centers would look like in broad strokes: hundreds of hydrokinetic turbines, dozens of underwater “data center pods,” and miles of subsea cable. The permits would not authorize construction, which would need its own lengthy review process. But these early green lights would tee both areas up for years of potential conflict over hypotheticals that feel real to those on the ground.
There are upsides from purely a carbon emissions perspective. Relying on tidal energy suggests they’d be greenhouse gas-free, powered by the energy of the ocean. It would also eliminate the land use problem that upends so many AI data center projects. There are also clear environmental risks, as they’re also being suggested in ocean areas often coveted for protection, off coastlines where it’s unclear if the neighboring communities will accept them.
DeepGreen’s Alaska project is proposed within a more than 1,000-acre channel of the Cook Inlet, an estuary coveted by fishermen and wildlife conservation advocates, where fights over resource development already occur often. The upstart company’s Maine project is planned for the northernmost tip of the state, in the Bay of Fundy, which shares a transnational border with Canada. Canadian tidal power generation for the general populace marginally exists today in the Bay of Fundy – with major stipulations for marine life protection because it affects the general nature of water currents.
It’s crucial to note neither project has much information available online, sans brief text file project descriptions available through FERC’s online filing database. There is no public-facing website to date for the project, or for DeepGreen itself. When I contacted Louis Wolfson, a vice president at the company who is listed on company filings, he declined to talk about the developments over the phone and suggested I contact him at an email address listed in FERC application documents. That email address uses a website – “DeepGreenCoastal.com” – that does not seem to exist.
Still, we already know enough to say both development areas are likely to require substantial federal review. Not only does their presence in these waters almost necessitate it but both development areas receive considerable whale traffic. DeepGreen has already acknowledged a need to coordinate passive acoustic monitoring and “non-invasive study methodologies” with the National Marine Fisheries Service, the federal marine protection agency run out of NOAA. The Bay of Fundy is a prominent summer home for the endangered North Atlantic Right Whale and the National Marine Fisheries Service has already intervened in the FERC case for the Maine project, signalling in its filing that Endangered Species Act and fish habitat consultations “may be necessary for the project.”
The Center for Biological Diversity has also filed motions to intervene in both FERC cases, which they tell me is a prelude to potential litigation. “Putting one of these in the ocean just seems like a dystopian nightmare but it was especially alarming because of the areas they want to put these in,” Kristen Monsell, CBD Oceans Program Litigation Director, told me in an interview. “[The motions] are a step required in order for us to participate in the permitting process at FERC and then preserve our ability to challenge the decision in court if we think that’s necessary.”
In Maine, the coastline neighbors are the city of Eastport, which is vociferously opposed to this data center being built. The city passed a moratorium on data center development in response to the project and filed a request to intervene in its FERC case this week. “The City's concerns include potential effects on fisheries, marine habitat, water quality, currents, sediment, underwater noise, electromagnetic fields, equipment heat, existing uses of the waterway, and access to marine resources,” the city stated. “Questions also remain about equipment failure, storm damage, emergency response, equipment recovery, site restoration, and eventual decommissioning. These concerns are specific to the proposed placement and extended operation of computing and energy infrastructure on and beneath the seabed.”
In Alaska, DeepGreen doesn’t face a situation like Eastport with a bustling tourist destination-turned-nemesis, but there’s still quite a bit of local confusion and consternation.
The Kenai Peninsula Borough, which is the equivalent of a county-level government, is currently neutral on the development. But the Alaska Commercial Fisheries Conservation Alliance, a newly-formed nonprofit that includes fishing permit holders in the Cook Inlet, submitted a filing to FERC claiming the project site doesn’t properly take into account existing fishing permit holders and that “a preliminary permit proceeding that advances a project of this scale without any commercial fishing impact assessment” would fail the agency’s public interest obligations.
I asked DeepGreen if it had any comment on the litigation risk around their projects. This is what Louis Wolfson provided: “Preliminary permits under the Federal Power Act do not authorize construction or physical disturbance. Their sole purpose is to establish priority while environmental, bathymetric, and technical feasibility studies are conducted. Stakeholder participation is an expected and healthy part of the FERC regulatory process. DeepGreen welcomes the engagement of conservation organizations, local communities, and regulatory resource agencies as we evaluate whether these sites can deliver low impact, zero carbon infrastructure in full compliance with federal environmental laws."
And more of the week’s biggest fights around project development
1. Ottawa County, Michigan – A congressional district House Democrats are targeting for control of the Lower Chamber is now a battleground over solar development on farmland, and I’m waiting to see if President Trump gets involved.
2. Texas – The Lone Star State sure is action-packed right now, huh? Let’s break down a few of the most important fights.
3. Lincoln County, Oklahoma – A massive wind project in rural Oklahoma is now on hold amidst continued local opposition, according to a Republican member of the state legislature.
4. Clinton County, Indiana – Well hey, at least some places are still approving some things. Like in rural Indiana, where a community actually voted for considering a data center.