10th Circuit: EPA must revisit Colo. smog plan

Downtown Denver skyline. Photo credit: Visit Denver

A federal appeals court has ordered EPA to go back to the drawing board on its smog plan for Colorado. The Denver skyline is pictured. Visit Denver

Pamela King, E&E News reporter, Jan 6, 2021

EPA must go back to work on its approval of a plan to address smog and acid rain in Colorado after a ruling yesterday from a federal appeals court.

In a short order, the 10th U.S. Circuit Court of Appeals granted the agency’s unopposed request to revisit its approval of Colorado’s infrastructure state implementation plan under the 2015 ozone National Ambient Air Quality Standards. The group that had challenged EPA hailed the order as a win for public health and the environment in the Centennial State.

“When faced with having to explain to a court its rationale for approving Colorado’s flawed plan to reduce asthma-causing smog and acid rain, the EPA had no choice but to admit its errors,” said Robert Ukeiley, a senior attorney with the Center for Biological Diversity.

“This decision is a victory for Colorado’s people and special places like Rocky Mountain National Park. “It means that one day, in the not-too-distant future, we’ll have clearer, healthier air.”

The center challenged EPA for failing to consider the impact of air pollution from Colorado on downwind states.

Attorneys for the group also noted that Colorado does not have legal authority to regulate pollution from industrial agriculture operations. They cited research showing a doubling of ammonia in precipitation along Colorado’s Front Range between 1984 and 2017. Ammonia comes primarily from industrial agriculture and leads to acid rain.

The 10th Circuit’s order follows a Dec. 31 request from EPA that the court allow the agency to revisit parts of the Colorado plan to account for “information that was not available or analyzed at the time of its action.” EPA asked the court to allow the agency to review the plan approval without scrapping it altogether to “provide regulatory certainty without harming the public interest.” EPA did not immediately respond to a request for comment on yesterday’s order.