City Smog Standards Sent Back to EPA Drawing Board

The Standard Oil Refinery in El Segundo, Calif., on May 25, 2017, with Los Angeles International Airport in the background and the El Porto neighborhood of Manhattan Beach, Calif., in the foreground. . (AP Photo/Reed Saxon, File)

WASHINGTON (CN) — The D.C. Circuit ordered federal reconsideration Friday of whether parts of more than a dozen counties near Denver, Chicago and other major cities meet national air quality standards for smog.

Driven by Illinois and environmental groups, the cases trace back to 2015, when the Environmental Protection Agency tightened the national air quality standards for ground-level ozone, colloquially known as smog. High levels of smog can cause significant health problems, including wheezing and respiratory infections, as well as environmental damage. 

States and the EPA work together to determine where the air quality standards are and are not being met. Within one year of the EPA issuing updated air quality standards, states must file with the agency their proposals for both the boundaries of the areas the EPA evaluates and whether those areas are meeting the air quality standards.

An area’s designation determines the strictness of the emissions controls it faces, but the decision is complicated by the fact that pollutants like ozone do not stay confined to the particular geographic area where they originate.

After receiving state proposals in October 2016, the EPA sought to push off the final decision on the designations for a year. Two rounds of lawsuits eventually caused the EPA to finalize its designations in April 2018.

This led to another round of suits from environmental groups, states and local governments, which argued the EPA made serious legal and procedural errors in determining which areas were in compliance with the air quality standards.

“The challenged designations for the 2015 [National Ambient Air Quality Standards] reveal an agency acting in violation of the Clean Air Act, and contrary to the record before it, offering no reasonable or rational connections between the facts it found and the choices it made,” the challengers argued in an appellate brief last year.

On Friday, the D.C. Circuit largely sided with the challengers to the designations. Walking through the decisions made on each challenged area in granular detail, the three-judge panel found the agency made a variety of errors in evaluating data from the counties and making its designations.  

Robert Ukeiley called the decision a “critical step forward” for cutting back on smog in areas around the country. He said the ruling Friday likely means the areas will be subject to stricter regulations after the EPA reaches its new decision. 

“Hopefully EPA and the state governments learn their lessons and are going to do the right thing to use this as an opportunity to protect kids from getting poisoned,” Ukeiley said in an interview. “I just can’t think of anything, in my opinion, more important that the government does than protect kids and others from getting poisoned.”

In a 51-page unsigned opinion, the judges found the EPA was inconsistent in how it evaluated data from comparable areas, including by determining some areas were meeting air quality standards but not others with better or equal underlying data. For other areas, it did not adequately consider the potential for a county to contribute to pollution in surrounding areas, the court ruled.

The court highlighted the case of one county outside of Denver where the EPA had misstated the location of a mountain ridge it said separated the site of major oil and gas production from the Denver area.

“In light of EPA’s conflicting characterizations of the topographical and meteorological data, its central reliance on one — apparently mistaken — interpretation of those data to justify the Weld County nonattainment boundary is arbitrary and capricious,” the opinion states. 

Friday’s ruling sends most of the designations back to the EPA with instructions for the agency to reconsider them “as expeditiously as practicable.” The agency will now have to reconsider its designation in counties in Missouri, Illinois, Michigan, Colorado, Texas, Wisconsin and Indiana. 

The agency agreed to a remand in the challenges to a handful of the counties, including El Paso County, Texas, and counties near Milwaukee.

The only designation the court declined to disturb was for a portion of Lake County, Indiana. The court found the agency reasonably explained and justified its decision to move from designating the entire county as in nonattainment, to later cabining the decision to the northern part of the county that borders Chicago.  

Brian Urbaszewski the director of environmental health programs for the Respiratory Health Association, said the D.C. Circuit’s decision will be important to improving air quality in cities like Chicago, though he is “a little wary” of what the agency will do on remand.

“We’re glad that the court finally decided the EPA needed to do a better job,” Urbaszewski said in an interview.

U.S. Circuit Judges David Tatel, a Clinton appointee, Thomas Griffith, a George W. Bush appointee, and Cornelia Pillard, an Obama appointee, issued the unanimous decision.

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