In big EPA win, court denies challenges to ozone designations

Source: Jeremy P. Jacobs, E&E reporter • Posted: Wednesday, June 3, 2015

A federal appeals court today rejected a series of challenges from states, environmental groups and energy companies to U.S. EPA’s determinations of which parts of the country meet its standard for ozone, a main component of smog.

In May 2012, EPA finalized its attainment and nonattainment designations for its 2008 ozone air standard of 75 parts per billion. If the agency finds a county or area does not meet the standard, that area must undertake significant and often expensive steps to reduce ozone emissions.

Mississippi, Texas, Indiana, Delaware and Connecticut all challenged EPA’s nonattainment findings for some of their counties. Environmental groups argued that 15 other counties that were found in attainment shouldn’t have been. And, in another claim, the groups argued that Utah’s Uinta Basin — home to oil and gas development and some of the country’s worst ozone pollution — should not have been dubbed “unclassifiable.”

In a nearly 90-page opinion, the U.S. Court of Appeals for the District of Columbia Circuit rejected all of those claims, handing EPA a significant victory.

“Because EPA complied with the Constitution, reasonably interpreted the [Clean Air Act’s] critical terms and wholly satisfied — indeed, in most instances, surpassed — its obligation to engage in reasoned decision-making, we deny the consolidated petitions for review in their entirety,” the court wrote.

The consolidated cases featured all types of arguments, and the court refuted each one. Some of the most high-profile challenges involved the Uinta Basin, as well as Wise County, Texas, which lies near Dallas and is home to significant natural gas and oil development. Like the Uinta Basin, Wise County has historically had the country’s worst ozone pollution.

EPA separated Wise County from the Greater Dallas-Fort Worth Metroplex and classified it as in attainment with the previous ozone standard in 1997. In assessing the newer limit, however, EPA found it failed to meet the 2008 standard.

Various companies, including Devon Energy Corp. and Targa Resources Corp., contended that EPA misapplied a multi-factor test to label the county in nonattainment. Specifically, they criticized the agency for relying on meteorological factors, including wind.

But the court deferred to EPA’s expertise in the area.

“Barring an unreasonable or irrational application of the ‘scientific data within [the EPA’s] technical expertise,'” the court wrote, quoting precedent, “we cannot say that the EPA acted arbitrarily or capriciously.”

In the Uinta Basin, WildEarth Guardians contended that the area should have been characterized as in nonattainment, not “unclassifiable.”

The problem in the area is that, until recently, there were no ozone monitoring stations in the basin. In a 2007 settlement with Kerr-McGee Corp., EPA required the Oklahoma-based company to install monitors in northeast Utah. EPA argued that it could not rely on data from those monitors to determine whether the area was in attainment for the 2008 standard, saying the data did not meet EPA’s “quality assured and quality certified” standard for the years necessary for the attainment determinations (Greenwire, Oct. 21, 2014).

Again, the court sided with the agency’s expertise.

“EPA reasonably declined to rely on data that it considered of insufficient quality for designation purposes,” it wrote.

Other challenges were similarly rejected, including Connecticut and Delaware’s attempt to draw a nonattainment area spanning more than 15 upwind states because of ozone pollution that drifts into their borders.

A Sierra Club attempt to force EPA to reclassify 15 counties as nonattainment instead of attainment was also dismissed.

Click here for the opinion.

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