DENVER (CN) - While two environmental groups considered Colorado's plan to clean up Front Range air pollution to be full of hot air, the 10th Circuit on Tuesday found the plan followed the Clean Air Act and rejected a petition for review of the Environmental Protection Agency's approval.
"The downstream consequences of the EPA's standalone approval of reasonable-further-progress demonstrations appear less dire than petitioners suggest," U.S. Circuit Judge Nancy Moritz wrote in an 18-page opinion.
Ozone, also known as smog, is harmful to human health, and the Denver Metro North Front Range area - which spans eight counties east of the Rocky Mountains - has failed to meet national ambient air quality standards for more than 15 years.
The state is required to submit plans to the EPA with measures to make reasonable further progress toward improving air quality for the 3.3 million people who call the area home.
On Oct. 7, 2022, the EPA reclassified the Denver area's air quality from "serious" to "severe," lowering the state's mandated reduction requirements. On May 9, 2023, the federal government then approved most of Colorado's most recent attainment plan.
The Center for Biological Diversity and 350 Colorado petitioned the 10th Circuit to vacate the state plan, arguing the federal government approved measures that would not bring the state closer to its attainment goals by the July 2027 deadline.
After hearing arguments in September, the 10th Circuit panel disagreed. In analyzing the critique, Moritz accused the environmental group of resisting a "common-sense" reading of the law that clearly distinguished making reasonable further progress from meeting attainment goals.
"Reasonable further progress ensures that states consistently reduce their emissions over time and prevents states from delaying implementation of emissions-control strategies until just before the attainment deadline," the Obama appointee wrote. "It does not, alone, ensure that a state will achieve attainment. That is why the Clean Air Act separately requires states to submit attainment demonstrations."
The EPA's approval of Colorado's air quality plan did not let the state off easy, Mortiz wrote, since continued failure to clean up the air continues to results in stricter requirements from the federal government.
"That is why, notwithstanding the outcome of this action, Colorado is currently required to develop and submit state implementation plan revisions consistent with the heightened requirements for 'severe' nonattainment areas," Mortiz wrote.
Attorney Ryan Maher, who represented the Center for Biological Diversity in court, warned that the government wasn't doing enough to clean up air pollution.
"Colorado and EPA have repeatedly failed to produce a plan that actually reduces dangerous levels of ozone," Maher said via email. "It's a devastating blow to public health and the environment. The ongoing failure to put an effective plan in place to reduce ozone levels assures millions of people will continue breathing polluted air."
A spokesperson for the EPA said the agency is reviewing the decision.
George W. Bush-appointed U.S. Circuit Judge Timothy Tymkovich and Donald Trump-appointed U.S. Circuit Judge Joel Carson signed onto the opinion.
Source: Courthouse News Service
