A federal appeals court ruled Friday that the EPA erred when it found at least seven counties in five states were meeting federal ozone limits, and the court ordered the agency to rework the designations for all the challenged areas using the latest science.
The U.S. Court of Appeals for the District of Columbia Circuit, in a per curiam decision, sided with multiple environmental groups led by Clean Wisconsin. The groups claimed the Environmental Protection Agency didn’t follow its own scientific and technical record when it decided many counties nationwide had met the 2015 ozone pollution standard of 70 parts per billion.
“It’s a big win for public health and the environment,” said Ann Weeks, senior attorney for Clean Air Task Force, who argued the case on behalf of Clean Wisconsin in November. “The court recognized these decisions should have been made on science grounds and rational bases, and not arbitrarily on political considerations.”
The court said the EPA has to redo the designations “as expeditiously as practicable” for all but one of a dozen areas that were subject to the legal challenge, including Racine County, Wis.
An EPA spokesperson said the agency is reviewing the decision.
The counties where the court remanded the EPA’s designations are in Colorado, Michigan, Missouri, Illinois, and Wisconsin. But the court said it wasn’t persuaded that Indiana’s Lake County designation was unreasonable.
The agency had also requested a voluntary remand for Racine County and some other areas in Wisconsin, as well as areas in Illinois, Indiana, and Texas during oral arguments in November. The court granted those remands on Friday but asked for explanations.
“We treat EPA’s decision not to defend those designations as a concession that they are arbitrary and capricious,” the judges wrote.
A voluntary remand means the court would send the attainment determinations back to the agency for further review of new or supplemental information, without making a ruling on those areas.
If an area is found to violate federal ozone limits, the Clean Air Act requires local or state regulators to implement extra steps to control pollution from motor vehicles, power plants, and other industrial sources that burn fossil fuels and release ozone-forming pollutants.
The judges noted that an area’s designation is important because it determines how stringent applicable emission controls must be. Although the EPA has ultimate authority to determine each area’s attainment status, “states have ‘primary responsibility’ for ensuring that the geographic areas within their borders either maintain attainment status or progress towards it,” the judges wrote.
The D.C. Circuit panel of judges, however, stopped short of vacating the designations, saying such a move would leave areas “unclassified” for the purposes of the 2015 standards.
“And nothing about that status will immediately subject the areas to more stringent environmental controls. We accordingly remand the unlawful attainment designations to EPA without vacating them,” Judges Thomas B. Griffith, David S. Tatel, and Cornelia T.L Pillard wrote.
Racine County Controversy
The EPA’s finding that Racine County in particular was in compliance with federal ozone standards has come under fire recently, after the agency’s correspondence and documents revealed that political appointees of President Donald Trump ignored the advice of the agency’s own scientists.
The EPA initially planned to designate Racine County as being out of compliance, but reversed course after Trump touted the county as the planned home for Taiwan-based Foxconn’s $10 billion flat-screen manufacturing plant.
Both the Wisconsin attorney general’s office and the Texas Commission for Environmental Quality that backed EPA’s designations said they were reviewing the decision.
Among industry groups, El Paso Electric Co., and the Greater El Paso Chamber of Commerce defended the EPA’s ozone designation.
Aaron Streett, a partner at Baker Botts LLP who during arguments opposed EPA’s voluntary remand of El Paso, couldn’t immediately be reached for comment.
Clean Wisconsin, Center for Biological Diversity and Sierra Club along with a host of other groups sued the EPA in January 2019 over its ozone determinations, accusing it of reversing its position on certain areas without explanation, drawing irrational boundaries, and making other allegedly arbitrary and capricious determinations of attainment with the standards.
The EPA defended the merits of most of its ozone attainment designations, but had requested a voluntary remand for a smaller subset of areas including Wisconsin’s Racine and Colorado’s Weld counties. The agency said it was entitled to a high level of deference when it came to its experts’ technical conclusions.
Colorado’s Weld County is the hub of the state’s oil and gas activity. EPA deemed the northern edge of this county as meeting ozone limits when evidence was showing the contrary.
“With this ruling the region’s oil and fracked gas operators finally have to stop spewing dangerous levels of asthma-causing smog pollution that damages the health of people, wildlife and the wild places that make Colorado so special,” Robert Ukeiley, senior attorney with the Center for Biological Diversity, told Bloomberg Law Friday.
Ukeily represented the National Parks Conservation Association, the Board of County Commissioners of Boulder County in Colorado, and the Sierra Club over EPA’s failure to designate northern Weld County, in Colorado, as a nonattainment area.
Failure to Explain
Seth Johnson, an attorney with environmental nonprofit Earthjustice who wasn’t involved in this litigation but was tracking its outcome, said the court reaffirmed that “the EPA has got to explain itself before taking actions that fly in the face of scientific evidence.”
Kevin Minoli, a former EPA general counsel during the Trump administration, agreed with Johnson that the EPA has to be able to explain that action and then be able to defend it.
“What the court’s decision says is that EPA failed to do that multiple times when it made these designations. The EPA just couldn’t tie its decisions to the data and the record before it,” said Minoli, now an environmental attorney with Alston & Bird LLP.
On the possibility of EPA appealing the decision, Minoli said he can’t speak for EPA. But he added, “I don’t know if it is in EPA’s interest to appeal because they have been given the opportunity to better explain and tie their decisions to the record.”
Ground-level ozone occurs when emitted nitrogen oxide and volatile organic compounds react to sunlight. Even at low levels, ozone pollution has been tied to respiratory problems, such as asthma, particularly for children and the elderly.
The Sierra Club has received funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg. Bloomberg Law is operated by entities controlled by Michael Bloomberg.
The case is Clean Wisconsin v. EPA, D.C. Cir., No. 18-1203, 7/10/20.