WildEarth Guardians sues EPA over Front Range smog

DENVER — A federal lawsuit that seeks to force the Environmental Protection Agency to designate Front Range counties as non-compliant with the 2008 National Ambient Air Quality Standard will proceed, even though Gov. Jared Polis on Friday announced that the state would withdraw a request for an extension from the EPA.

WildEarth Guardians, based in Santa Fe, N.M., filed suit against EPA administrator Andrew Wheeler, March 26, over his failure to determine whether Denver and surrounding communities were compliant with ozone standards. The case was filed in U.S. District Court in Denver.

The current Denver Metro-North Front Range nonattainment area includes Adams, Arapahoe, Boulder, Broomfield, Denver, Douglas and Jefferson counties, along with portions of Larimer and Weld counties.

Polis on March 29 released a statement announcing that the state would withdraw a request for an extension to come into compliance with the ozone standards.

“There’s too much smog in our air, and instead of hiding behind bureaucracy and paperwork that delay action, we are moving forward to make our air cleaner now,” Polis said.

Polis highlighted several areas in which Colorado is attempting to improve air quality, including development of a zero-emissions vehicle standard, reforming oil and gas laws to prioritize public health and safety, and advancing efforts to achieve 100 percent renewable energy.

Daniel Timmons, an attorney with WildEarth Guardians, said the group is pleased with Polis’ action.

“We fully support that,” he said. “We think it’s a great indication that he’s taking this air-quality problem seriously.”

But he said the group will want to hear more about the governor’s plans before “taking the pressure off the EPA.”

If anything, said Rebecca Fischer, climate and energy program attorney with WildEarth Guardians, Polis’ action strengthens the organization’s case.

“It definitely strengthens our lawsuit because it takes away EPA’s excuse for not acting,” Fischer said. “It’s not going to moot our lawsuit because EPA is required to make the finding either way.”

WildEarth’s lawsuit outlines the long history of non-compliance for the Front Range.

“For nearly a decade, high ozone levels, much of it from oil and gas operations, have harmed the health of Coloradans, causing asthma and other respiratory impacts,” Fischer said in a prepared statement announcing the lawsuit. “EPA’s failure to take action on this issue and find that the Denver area is continuing to violate federal air quality standards is a gross abdication of its responsibility to protect our public health and environment.”

The suit alleges that Wheeler violated the Clean Air Act by missing a Jan. 20, 2019, deadline to determine whether the Denver Metro-North Front Range Area complied with the 2008 National Ambient Air Quality Standards for ozone by the applicable deadline of July 20, 2018.

WildEarth notes that the EPA designated the area in non-compliance in May 2012. Colorado was then required to implement air-quality regulations to bring the area into compliance by July 20, 2015.

Air quality still did not meet the ozone standard by that date, and the then-EPA administrator bumped up the nonattainment status from “marginal” to “moderate” as of June 3, 2016. Colorado was required to bring the area into compliance by July 20, 2018.

“The administrator’s failure to make this legally-required determination is delaying clean air for the Denver Metro-North Front Range Area,” the lawsuit states. “Existing publicly-available data indicates that the Denver Metro-North Front Range Area likely failed to meet the 2008 Ozone Standards by the attainment date.”

If Wheeler determines that the area is not in compliance, “EPA would be required as a matter of law to ‘bump up’ the classification of the area from Moderate to Serious,” according to the lawsuit, thereby requiring Colorado to adopt more-stringent safeguards to promote clean air.

“In essence, the administrator’s delay is forcing the residents of and visitors to the Denver Metro-North Front Range Area to endure greater air pollution and public health risks than the law allows,” the lawsuit states.

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