Environmentalists urge 10th Circuit to order EPA rejection of Colorado ozone reduction plan

DENVER (CN) — Environmental groups asked the 10th Circuit on Tuesday to vacate Colorado’s ozone reduction plan which they say does not help the Denver metropolitan area achieve required air quality standards.

Ozone, also known as smog, is harmful to human health, and the Denver Metro North Front Range area — which spans eight counties east of the Rocky Mountains — has failed to meet national ambient air quality standards, or NAAQS, for more than 15 years.

The state is required to submit plans to the Environmental Protection Agency with measures to make reasonable further progress, RFP in agency speak, toward improving air quality for the 3.3 million people who call the area home.

On Oct. 7, 2022, the EPA reclassified the Denver area’s air quality from “serious” to “severe,” lowering the state’s mandated reduction requirements. On May 9, 2023, the federal government then approved most of Colorado’s most recent attainment plan.

The Center for Biological Diversity and 350 Colorado petitioned the 10th Circuit to vacate the state plan, arguing the federal government approved measures that would not bring the state closer to its attainment goals by the July 2027 deadline.

U.S. Circuit Judge Timothy Tymkovich questioned why the court needed to vacate the current plan when another state proposal is in the works and could fix the very issues raised.

“Don’t you have to implement RFPs and vehicle emissions budgets in the new ‘severe’ plan?” the George W. Bush appointee asked.

On behalf of the Center for Biological Diversity, attorney Ryan Maher argued that vacating and fixing the current plan would drive changes to be implemented more quickly than waiting on the next plan.

“EPA has a near unblemished record with missing these deadlines,” Maher said.

U.S. Circuit Judge Joel Carson questioned the wisdom in evaluating pieces of the plan rather than its wholistic impact.

“We’re talking about the RFP and the vehicle budget in the state implementation plan, but to reach ozone goals there are other things in play, aren’t there?” the Donald Trump appointee asked. “How can we just look at these two things when there’s stationary sources? Why not take a wholistic view of the plan?”

Maher said the EPA’s own segmented process did not allow for a wholistic review.

“Normally the RFP would be approved before the plan is in place,” Maher added.

Representing the EPA, attorney Lucy Brown said the state’s plan followed the law.

“The EPA act is designed to help states reach goals over time with increasingly stringent standards,” Brown said. “Petitioners would have EPA throw out the entire plan because Denver did not meet the goals by the set date, but doing so would ignore the plain text of the statute.”

Carson questioned the usefulness of implementing air quality plans that don’t ultimately help the state reach air quality goals and reduce air pollution.

“If Congress had wanted to say that ‘reasonable further progress’ meant whatever number was needed to reach attainment, Congress would have done so,” Brown said.

Asked by Tymkovich whether the agency is on track to reach 2027 attainment goals, Brown said, “The Clean Air Act does set very ambitious timelines and goals.”

U.S. Circuit Judge Nancy Moritz, appointed by Barack Obama, rounded out the panel. The court did not indicate when or how it would decide the issues.

Follow @bright_lamp