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Friday, August 23, 2019

Seventh Circuit upholds EPA decision that Chicago meets ozone standards

By Jonathan Bilyk | Dec 23, 2014

A federal appeals court has upheld the U.S. Environmental Protection Agency’s decision to declare the Chicago area, as well as portions of the St. Louis and Milwaukee metropolitan areas, have reduced ozone-causing emissions to the levels required by federal law.

The ruling relieves the states of Wisconsin and Illinois of more stringent emissions monitoring and control procedures, and rejects the Sierra Club’s contention federal regulators have not done enough to ensure the emissions levels would remain permanently that low.

The U.S. Seventh Circuit Court of Appeals on Dec. 16 ruled the EPA had sufficient reasoning to support its 2012 decision to redesignate the areas known as the Greater Chicago and Milwaukee-Racine metropolitan areas, as well as the Illinois portion of the St. Louis metro area, as complying with the ozone-related emissions standards dictated under the Clean Air Act and through the 1997 National Ambient Air Quality Standard for ozone.

The Sierra Club had challenged the redesignation of the regions, saying the EPA had relied on a faulty analysis incorporating too little data to sufficiently demonstrate supposed reductions in ozone-causing emissions were tied to “permanent and enforceable regulation” rather than temporary shifts in emissions level better ascribed to shifting weather patterns or reduced industrial and automotive outputs linked to the onset of the Great Recession.

The federal appeals panel, however, said the Sierra Club asked too much of the agency – or at least more than what was required under the Clean Air Act.

“EPA has demonstrated that it ‘examined the relevant data and articulated a satisfactory explanation for its action including a rational connection between the facts found and the choice made, that the agency’s decision was based on a consideration of the relevant factors, and that the agency has made no clear error of judgment,’” the panel held.

The opinion was authored by Judge Joel M. Flaum, with judges Michael S. Kanne and Diane S. Sykes concurring.

The redesignations of the three regions have been pending since 2008-2009, when the states of Wisconsin and Illinois asked the EPA to declare air quality and emissions levels for nitrogen oxides had improved in the regions sufficiently to demonstrate they had attained the 1997 standards.

The emissions, designated as NOx, have been linked to the formation of ozone pollution. They have been commonly produced by industrial sources, such as power plants and certain factories, as well as emissions from gasoline and diesel-powered vehicles, among others.

The EPA said the states had presented data from at least three years, demonstrating measures they had undertaken to mandate emissions control, coupled with various federal regulations on motor fuels, succeeded in reducing emissions sufficiently to redesignate the areas from “nonattainment” to “attainment.”

The Sierra Club then challenged those findings in court, saying it believed the emissions reductions were only temporary and would rebound, and insisted the EPA be required to keep the more stringent requirements in place for the three regions.

While the EPA had accurately portrayed the current state of emissions activity in the three regions, and correlated those reductions to regulations and control programs, the agency needed a more exacting investigation to conclude the reductions actually had been caused by and could be sustained by those regulations and control measures rather than “the possible effects of the economic recession, fuel prices and ‘other impermanent conditions’ on the reductions in ozone (and ozone precursor) levels.”

The Seventh Circuit, however, sided with the EPA.

While conceding the Sierra Club had standing to sue over the potential for ozone emissions to climb again in the future, the panel said the EPA had done what was required of it by the law in evaluating and granting the states’ request to redesignate the regions.

“At bottom, the CAA (Clean Air Act) required EPA to confirm the necessary ozone reduction and tie it to a ‘permanent and enforceable’ drop in precursor emissions (VOC and NOx) resulting from ‘permanent and enforceable’ regulation,” Flaum wrote for the panel. “EPA did that.”

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