The Brief

A legal loophole has allowed the U.S. Environmental Protection Agency to strike pollution from clean air tallies in more than 70 counties, enabling local regulators to claim the air was cleaner than it really was for more than 21 million Americans.

Regulators have exploited a little-known provision in the Clean Air Act called the “exceptional events rule” to forgive pollution caused by “natural” or “uncontrollable” events — including wildfires — on records used by the EPA for regulatory decisions, a new investigation from The California Newsroom, MuckRock and the Guardian reveals.

In addition to obscuring the true health risks of pollution and swerving away from tighter control on local polluters, the rule threatens the potency of the Clean Air Act, experts argue, at a time when the climate crisis is posing an unprecedented challenge to the health of millions of Americans.

Where the EPA — which monitors air quality — has agreed to exclude bad air days from analysis, “we may have a sort of stable, relatively rosy picture when it comes to our regulatory world in terms of air-quality trends,” said Vijay Limaye, a climate and health epidemiologist at the Natural Resources Defense Council (NRDC), a nonprofit advocacy group.

The truth is more complicated, and the air dirtier.

Matt Cowdrey, Mark Paiz and Kyle Ortega get ready to paddle out and surf Ocean Beach in San Francisco under an orange-red sky caused by wildfires on Sep. 9, 2020.

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Beth LaBerge

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KQED

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“The true conditions on the ground in terms of the air that people are breathing in, day after day, week after week, year after year, is increasingly an unhealthy situation,” Limaye said.

For the summer of 2023, more than 20 states so far, from Wyoming to Wisconsin to North Carolina, have flagged air-quality readings that were far higher than normal. Most of these days came in June, as skies in the midwest and eastern U.S. were blanketed with Canadian wildfire smoke.

We pored over thousands of pages of regulatory documentation, correspondence and contracts, and analyzed hard-to-find public data to better understand how local regulators make use of the exceptional events rule, as global heating sparks extreme wildfires more often.

We found that, since 2016, when the EPA last revised the guidance on exceptional events:

• Local regulators in 21 states filed requests with the agency to forgive pollution and, in 20 of those states, had them approved.
• In total, local regulators made note of almost 700 exceptional events. The EPA agreed to adjust the data on 139 of them.
• The adjustments came in more than 70 counties across 20 states. The affected areas stretched from the forested Oregon coast to the Ohio Rust Belt, from the craggy Rhode Island coastline down to the bayous of Louisiana.
• In more than half of the states where exceptional events were forgiven, industry lobbyists and business interests pressed to make that happen, sometimes as the only public voice in the regulatory process. Also, to protect the status quo, some regulators spent millions of taxpayer dollars doing research for and making exceptional events requests, sometimes working hand in hand with industry stakeholders.

Meeting air-quality standards matters a lot to industry and politicians. Violations can add up to stricter, more costly and potentially unpopular pollution controls.

Critics say the growing use of the exceptional events rule for wildfires is of deep concern. “You need to level with the public about the number of days when the air quality was unhealthy,” said Eric Schaeffer, a former regulator who directs the Environmental Integrity Project.

“We have saved more lives in this country because we cleaned up the air than almost any other environmental policy,” said Michael Wara, the director of the climate and energy policy program at Stanford’s Woods Institute for the Environment. “And that’s what’s being undermined.”

“The world has changed,” he said. “We are living in a different world when it comes to wildfire and all of its consequences, including air pollution.”

In response to written questions, the EPA said it takes all air pollution seriously.

The 49 Bridge over the south Yuba River in Nevada county, California, is a popular area for hikers and advanced river activities. A legal loophole has allowed regulators to strike pollution from clean air tallies in more than 70 counties, including Nevada county.

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“Wildland fire and smoke pose increasing challenges and human health impacts in communities all around the country,” Khanya Brann, an EPA spokesperson, wrote. “EPA works closely with other federal agencies, state and local health departments, tribal nations, and other partners to provide information, tools, and resources to support communities in preparing for, responding to, and reducing health impacts from wildland fire and smoke.”

The EPA also pointed to “mitigation plans,” in which air districts that have experienced repeated exceptional events must create plans for educating and notifying the public about the pollution risk, as well as “steps to identify, study, and implement mitigating measures” like limiting use of wood-burning stoves and wetting down unpaved roads before dust storms.

More ‘toxic soup’ and more paperwork

In the US, clean-air policy long allowed local governments to write off some wildfire smoke on a case-by-case-basis as “unrealistic to control” or “impractical to fully control”. But in 2005, the Republican senator Jim Inhofe of Oklahoma, who has long denied the climate crisis, won a years-long battle to amend the Clean Air Act. The new rule gave local officials more opportunity to exclude pollution from regulatory consideration for an array of events, from fireworks displays and volcanic eruptions to wildfires and even unusual traffic events.

At first, the rule was used most successfully in a handful of south-western communities where high winds created a recurring problem of dust pollution. Over time, local regulators have turned to exceptional events for wildfires more and more often to reach air-quality goals.

Our analysis of local and EPA records found that in 2016, air agencies flagged 19 wildfire events as potential exceptional events. In 2018 and 2021, 52 and 50 wildfire events were flagged. In 2020, 65 were.

“The uptick in exceptional events is absolutely consistent with what we see in the air pollution data,” said Marshall Burke, an associate professor of global environmental policy at the Stanford Doerr School of Sustainability. Smoke is accounting for a higher proportion of overall air pollution, and it’s going up quickly, Burke said — not just in the western U.S., but nationwide.

The Nevada County Consolidated Fire District office in Nevada City, Calif., on Oct. 4, 2023.

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No state is blamed more for smoke pollution than California, followed by Oregon and Canadian provinces, according to our analysis. Western states are more likely to point fingers at each other, while states in the midwest and north-east place the blame on Canadian provinces like Alberta and Saskatchewan.

Wildfire smoke is a dirty and complicated polluter. Limaye, of the NRDC, called it a “toxic soup of air pollution.” It carries soot and ash, regulated as particulate pollution, as well as hydrocarbons and other gases that, cooked in sunlight, help form ground-level ozone. It’s a growing concern for public health, both near the source and thousands of miles away. Smoke, especially from a long-burning fire, can travel long distances and linger at dangerous levels for weeks at a time.

We analyzed data recorded at air monitors nationwide. For every U.S. county, on a day where the EPA excluded any data, we counted that day. Our analysis found that the total number of wildfire-related bad air days erased from regulatory consideration in counties nationwide was nearly double that of bad air days related to high winds: 236 compared to 121.

When wildfire caused air pollution, the rule was applied to more monitor readings over multiple days, not just to exclude particulate pollution but also smog or ozone.

“It is a lot of time,” said John Walke, a lawyer for the NRDC.

One or two violations at a single air monitor can flip an area from meeting air standards to missing the mark, according to Walke. Three or four violations over several years can prompt increasingly strict local pollution controls. “So a lot is riding on one, or two, or three violations,” he said.

A smokier future

The recent experience of California’s Nevada County may offer a glimpse of a smokier future. So far, the exceptional events rule has removed 16 days from the record there in the last five years.

Julie Hunter, the interim director of the Northern Sierra Air Quality Management District, in her office in Grass Valley, California, on Oct. 4, 2023. Wildfire smoke is like a “pancake,” settling flat across the rural valley, she says.

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Andri Tambunan

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Ozone levels are rising in the background in this foothill community, according to Julie Hunter, the interim chief for the northern Sierra air quality management district. She said more trucks and warmer temperatures are to blame. More frequently now, she said, wildfire smoke is like a “pancake,” settling flat across the rural valley, stuck until conditions change.

During one fire in 2021, a thick plume of smoke covered the sun in the town of Grass Valley. “We couldn’t see past down the driveway,” said Dr. Alinea Stevens, the medical director at the Chapa-De Indian Health clinic in town.

Stevens remembered doctors and nurses moving among patients under the menacing amber skies, N95 masks snug on their faces to protect against COVID-19 — and wildfire smoke.

Over hours, the clinic’s security guards got lightheaded and developed headaches. “We told them, you need to wear N95 masks, too,” Stevens said. “That kind of prolonged exposure to those things was very real.”

After fires in 2018 and 2020, the EPA wiped more than two weeks of ozone pollution in the district from the record. That didn’t get Nevada county all the way to a clean bill of health, but local regulators avoided having to tighten rules on local emissions. Hunter, the local regulator, said her district is likely to seek more exceptional events there, including for fires in the last two years.

Firefighters from Costa Mesa and Huntington Beach battle the Bond Fire in Santiago Canyon.

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“If we take out wildfire smoke as one of the things that we look at, then we’re not going to be addressing problems that really affect our community here,” said Stevens, who directs the health clinic. The surge of asthma and other health problems from smoke can be overlooked when it happens in a rural community, she said: “I think it’s maybe a way that we don’t put enough attention into fixing something that can be fixed.”

Officials at the California air resources board (CARB) stress that state law works toward mitigating the effects of climate change, and state policies are supposed to minimize the risk of catastrophic fire.

“We really are trying to pull out all the stops,” Michael Benjamin, the chief of CARB’s air-quality planning and science division, said. Practically, he added: “We and the air districts in California will continue to take advantage of the exceptional events provisions in the Clean Air Act to try to show attainment.”

When it comes to showing attainment, the stakes are high.

Scrubbing smoke from regulatory accounting allows local governments and business to continue as usual, since the practice obscures the toll wildfires take on public health.

It also ignores the ways that the climate crisis is altering how people decide where to live across the U.S.

Alinea Stevens, the medical director at the Chapa-De Indian Health Clinic, on Oct. 4, 2023 in Grass Valley, California. During a fire in 2021, a thick plume of smoke covered the sun in Grass Valley.

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Andri Tambunan

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‘We are all inheriting this’

In 2017, Maitreyi Siruguri and her husband woke in the night to a sky lit unnaturally orange. They left their Santa Rosa home with their young children in the early hours of the morning; the fire that eventually swirled through went on to kill 22 people and destroy more than 5,600 structures.

Afterward, “I was starting to sense the emotional drain, from everyone having to go through this,” she said. She searched the internet with worry about how smoke could harm her children, then three and seven years old.

In 2021, they left for the suburbs of Chicago. They could afford to buy a house; the family would be closer to friends and relatives — and further, she hoped, from wildfire and smoke.

Growing up in India in the 1980s and 1990s, and working as a climate educator, Siruguri knows very well that there is no escape hatch leading away from environmental problems. “We are all inheriting this, in every part of the world,” she said.

Wara, of Stanford’s Woods Institute, argues that such an inheritance requires investment. Rather than trying to protect the status quo, he said, governments could make a new cost-benefit analysis.

“It would not be unreasonable” to boost spending significantly to manage public and private lands to minimize smoke, “something like what we think is reasonable when it comes to coal-fired power plants, which is billions of dollars per year,” he said. “Because the harms that are being created by the smoke are large.”

This summer, as air quality worsened across Illinois from Canadian fires, Siruguri worried anew in Naperville. On a late July day, when smoke pollution had returned, she brought her child to soccer camp, and asked the camp’s director whether the air was healthy.

Downtown Nevada City on Oct. 5, 2023.

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He didn’t have an answer. “He was like, well, we kind of wait till somebody tells us what to do or you make the decision for your child,” she said.

Siruguri believes the government must work to stop climate change, including by switching energy sources away from fossil fuels. She believes that when officials talk to the public, they should be honest about how smoke is changing air over time.

“It’s hard for the general public to know. The next time I see bad air quality, I will be looking for how that’s getting recorded,” Siruguri said. “It is concerning that these decisions are made behind the scenes, almost.”

Walke of the NRDC agreed: “The worst possible outcome is lying to the American people about whether the air they breathe is safe or unsafe .”

In Southern California

Just off the 405 freeway at the border of Costa Mesa and Santa Ana, a block down from IKEA and a couple of business parks over, you'll find Darkroom.

It's the kind of address where you'd expect to find a dentist's office or a logistics company — instead, it's home to some of the most inventive food in Orange County, and arguably beyond, anchored by a formidable wine program featuring small producers.

The location is a deliberate choice by Zach Scherer, Darkroom’s chef-owner, that has turned the restaurant into a growing word-of-mouth destination. For Scherer, hiding in plain sight was never a compromise. It was the plan.

Inside Darkroom

The interior of the restaurant is a completely different story. Its decor matches that of an angsty teenager who shops at Hot Topic, with an affinity for industrial and goth music, and a bit of new wave mixed in.

Darkroom's interior leans into its irreverent, gallery-meets-Hot Topic aesthetic.

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Your eyes might take a minute to adjust to the low light before a friendly server wearing a tattered band T-shirt greets you and escorts you to your table.

Scherer wears his nonconformist attitude with pride — and intention. "If you're a little too serious, Orange County won't love it," he said, and it shows: the room is built to feel like the opposite of a hushed tasting menu.

Chef Zach Scherer (right) and Drew Adams work the pass together — the same partnership they describe as "like a band."

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Scherer runs the kitchen with longtime partner Drew Adams — a lifelong Orange County resident — who also oversees the pastry program. The two think of Darkroom's identity "like a band," Scherer said: a shared core sound, no matter who's guesting on a given dish. (Their tasting-menu concept, Chrysalis, runs out of the same kitchen some nights — a five-course tasting menu happening in parallel.)

The menu

Start off with the Scotch olives, fried Castelvetrano olives with anchovy and lamb merguez, served over spiced sumac yogurt. Meanwhile, a couple of slices of their zucchini bread with koji butter, topped with silky jamón serrano, provide some comforting bites.

Grilled and marinated Jimmy Nardello peppers — a short-season ingredient the kitchen deliberately doesn't overwork.

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From there, seasonal produce takes center stage, with grilled, marinated Jimmy Nardello peppers served with fennel-pollen labneh and sprinkled with walnut dukkah, hitting equal notes of sweet, spicy, nutty, and fresh. Followed by honeynut squash from Weiser Farms — poached in a light broth known as nage, made with bits of country ham and horseradish, topped with rainbow chard, a dish that reads Southern-meets-European.

The Darkroom burger, cut in two — only 10 are made a night.

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Cap things off with The Darkroom burger, cut in half, made with dry-aged beef, molten Comté cheese, and gooey caramelized onions, served between soft, glossy brioche-style buns, swimming in a light au poivre bath. It's a dish that, like the others, exhibits strong technique but still wears its fun on its sleeve — all the makings of a truly memorable meal.

The philosophy

Scherer's goal is to make the Orange County food scene nationally competitive with San Francisco, New York, and Chicago — and the seasonal fluency on display that night, from summer's last Jimmy Nardellos to fall's first honeynut squash, is the technical proof behind that claim.

The fried Scotch olives — Castelvetranos stuffed with anchovy and lamb merguez, set over sumac yogurt.

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The menu's dynamic approach — its ability to oscillate between cuisines — reflects that same nonconformist identity, reinforcing the idea that the food doesn't take itself too seriously, just like the space around it.

Scherer's ambitions don't stop at Darkroom's walls; he's also developing Three Eyed Tiger, a cocktail-forward concept nearby.

"The food we're making now is the food that I'm the most proud of, because it really shows our identity," said Scherer.

A San Bernardino County Superior Court judge on Tuesday rejected Chino Valley Unified School District’s request to dissolve an injunction blocking its policy requiring employees to notify parents when students identify as transgender or use different names or pronouns at school.

Judge Michael Sachs upheld his 2024 injunction blocking Chino Valley Unified from enforcing a policy the school board adopted in 2023. The policy required district employees to notify parents within three days if their student asked to go by a name or pronoun different from official school records or join a sex-segregated program, such as athletics, that did not correspond to those records.

The school district had asked Sachs to overturn a permanent injunction after the U.S. Supreme Court issued an emergency docket ruling in a separate case, Mirabelli v. Bonta. The district argued that the ruling affirmed parents’ constitutional right to be informed about information critical to their children’s health and well-being.

Sachs rejected the request, saying his injunction does not conflict with the Supreme Court’s ruling. During Tuesday’s hearing, he distinguished between the two cases, saying the school policy at issue in the Mirabelli case required school employees to withhold information from parents when asked.

“The school’s policy essentially mandated that staff lie to the parent about their child, and the court did not accept that,” Sachs said of Mirabelli v. Bonta.

The Chino case involves a different question: whether school employees can be required to disclose a child’s gender identity to their parents.

“There is no mandatory duty for the school district to voluntarily release information about the student,” Sachs said in court.

Chino Valley Unified was disappointed by the ruling, said Emily Rae, the district’s attorney and president of the California Justice Center, a conservative legal nonprofit focused on protecting individual liberty.

“The main problem is that it puts the burden on parents to know whether they’re having a secret kept from them,” Rae said.

Rae said Sachs’ ruling misinterpreted the Mirabelli opinion, which she said made clear that schools should not withhold information from parents. She said it was too soon to say whether the district would appeal the ruling or make changes to any of its policies.

Sonja Shaw, president of the Chino Valley Unified school board and a candidate for state superintendent of public instruction, also criticized the ruling. In an interview with EdSource, she called the proceedings a “kangaroo court” that has caused “so much confusion.”

Shaw said she planned to ask the superintendent whether the district could ask all parents to check a box: “Do you want secrets to be held from you?”

“They shouldn’t have to do that,” she said. “At the end of the day, it’s insane we have to go through all these hoops to uphold a parent’s right to know.”

Christine Parker, senior staff attorney with the ACLU Foundation of Southern California, said the ruling was consistent with the Supreme Court’s order in Mirabelli v. Bonta and other applicable law.

“The court got it right: Blanket policies like Chino Valley USD’s, in which school employees must — in all circumstances — disclose a student’s gender identity to their parents, remain unlawful in California,” Parker said in a statement to EdSource.

Another pending case referenced in Tuesday’s proceedings was the City of Huntington Beach v. Newsom, which hinged on a dispute over AB 1955, known as the SAFETY Act. The law, signed by Newsom in 2024, bars school districts from requiring staff to disclose a student’s sexual orientation or gender identity to parents. It went into effect before the injunction in the Chino Valley Unified case.

In the wake of the Mirabelli v. Bonta case, the Ninth Circuit Court of Appeals issued a preliminary injunction for parents in the City of Huntington Beach v. Newsom who sued to block enforcement of the SAFETY Act.

This story was originally published by EdSource. Sign up for their daily newsletter.

An earthquake with a magnitude of 3.1 struck near Compton Thursday afternoon and was felt in Downey, Long Beach and surrounding areas.

No damage would be expected from a quake with that level of shaking, according to the U.S. Geological Survey.

A number of small earthquakes northeast of today's were felt earlier this month.

We have earthquake resources

We don't want to scare you, but the Big One is coming. We don't know when, but we know it'll be at least 44 times stronger than Northridge and 11 times stronger than the Ridgecrest quakes in 2019. To help you get prepared, we've compiled a handy reading list:

• Your guide to surviving the Big One
• For earthquakes, forget the 'go-bag.' Here's how to prepare
• How to not get life-threatening diarrhea after a major earthquake
• 10 earthquake-related questions to ask your landlord immediately
• How to prepare for an earthquake if you have a disability

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