Sierra Club wins small victory in clean air battle with Detroit

CINCINNATI (CN) — A Sixth Circuit panel’s reading of the Clean Air Act led it to revoke Detroit’s ozone attainment status, even as it upheld the EPA’s decision to exclude wildfire-affected data from the city’s air quality tests.

Sierra Club petitioned the Sixth Circuit to review the U.S. Environmental Protection Agency’s (EPA) decision granting Michigan’s request to ease air-pollution restrictions in the Detroit metro area.

The EPA’s compliance ruling came after excluding June 2022 testing data, based on elevated ozone readings it claimed were caused by neighboring Canadian wildfires.

Sierra Club argued the exclusion was arbitrary and that Detroit met federal ozone standards only because the data was removed.

The panel disagreed with Friday’s opinion, finding ample evidence supported the EPA’s “exceptional-event” request.

Specifically, findings of brown carbon at the Detroit testing site on the two days air samples were collected were indicative of wildfire smoke, despite the Sierra Club’s claim that the state cherry-picked its sampling data.

“The evidence Michigan provided was extensive, consisting of a comparison of the June 24 and 25 exceedances with historical concentrations, figures showing the progression of smoke plumes over North America using satellite imagery, calculations of trajectories originating from the largest fire sites … and a matching-day analysis,” Senior U.S. Circuit Judge Helene White said.

White, a George W. Bush appointee, also rejected Sierra Club’s claim that Detroit met ozone standards only because the pandemic reduced auto traffic.

She noted ozone levels actually rose from 2019 to 2020 and agreed with the EPA that Detroit’s gains stemmed from lasting state measures, including tighter nitrogen oxide controls and lower-evaporation gasoline.

But the panel sided with Sierra Club on one point, granting its request to revoke Detroit’s attainment status because the region failed to comply with required reasonably available control technology (RACT) standards.

The decision rested on the timing of Michigan’s attainment application and the specific wording of the legislation, both of which White analyzed in her opinion.

Michigan sought attainment status for Detroit in January 2022, but the EPA reclassified the region as “moderate” nonattainment in February 2023.

That reclassification came with updated RACT requirements, which Sierra Club said the state and city failed to meet — even as the EPA approved Detroit’s attainment status in May 2023.

The EPA argued RACT compliance should be measured as of the application date, but the appeals court rejected that view.

Its decision was based in no small part on the use of the present-perfect tense phrase “has met” in the statutory language.

“Congress elected to use the present-perfect ‘has met,’ which ‘denotes past action with an abiding effect or continuing relevance’ and not ’noncontinuing compliance,’” White said. “Accordingly, the phrase ‘has met’ requires that all applicable requirements must be met until the date of redesignation.”

The agency pushed back, arguing the tense could be a way for Congress to stress the importance of past events — such as achieving air quality attainment standards — but the panel determined that interpretation would render the word “has” meaningless.

“The statute clearly contemplates escalating requirements even when a state has submitted a request to redesignate an area to attainment. The nonattainment scheme in the CAA adjusts an area’s obligations based on its failure to comply with the statute’s deadline for achieving attainment.

“It is the state’s failure to meet the deadline, not a finding that the state’s air quality has worsened, that triggers a bump-up in the CAA requirements. When a state fails to meet its deadline, it is bumped up, and the stricter requirements go into effect,” White said.

Michigan cannot skirt the deadline requirement, according to the panel, and its failure to submit a revised improvement plan that properly implements RACT requirements precludes the City of Detroit from attaining attainment status.

Senior U.S. Circuit Judge R. Guy Cole Jr., an appointee of Bill Clinton, and U.S. Circuit Judge Stephanie Dawkins Davis, an appointee of Joe Biden, also sat on the panel.

The EPA said it is reviewing the decision.

Attorneys for Sierra Club did not respond to a request for comment.

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