Special Topics in Environmental Management

AGs Sue EPA for Ozone Nondesignations

Fifteen attorneys general (AGs) have filed a complaint with the U.S. District Court for the Northern District of California, requesting that the court order the EPA to meet its Clean Air Act (CAA) nondiscretionary obligation to declare which areas of the country are in nonattainment with the Agency’s 2015 National Ambient Air Quality Standards (NAAQS) for ozone. According to the AGs, the failure to designate nonattainment areas poses risks to human health because states do not have to plan to meet the standards until they are told they have areas in nonattainment.


Section 107(d)(1)(B) of the CAA requires the EPA administrator to promulgate designations of attainment, nonattainment, or unclassifiable for the NAAQS for all areas of the country as expeditiously as practicable but in no case later than 2 years after the date the Agency promulgates a new NAAQS. The EPA promulgated a new ozone NAAQS on October 1, 2015. On November 6, 2017, the Agency issued designations only for areas classified as attainment or attainment/unclassifiable. No nonattainment designations were made.

Insufficient information

The CAA allows the EPA to extend its deadline to issue NAAQS designations by up to 1 year if the Agency has “insufficient information” to issue them. In a June 6, 2017, letter to U.S. governors, Administrator Scott Pruitt initially explained the reasoning for the absence of designations and his decision to apply the 1-year extension. Specifically, said Pruitt, the Agency lacked “the most recent air quality data,” as required by the CAA, because of three factors: (1) an incomplete understanding of the role of background ozone levels; (2) appropriately accounting for international transport of air pollution; and (3) timely consideration of exceptional events demonstrations.

Nothing missing

But the AGs and environmental groups asserted that there was no substance to the claims of insufficient information. For example, in a letter to Pruitt, Connecticut Governor Dannel Malloy wrote that the 2015 ozone NAAQSs were based on ambient ozone concentrations measured between 2013 and 2015 by over 1,100 monitoring stations located throughout the country and certified and submitted to the EPA by the May 1, 2016, deadline.

“There is nothing missing from past information used by EPA to designate areas after previous revisions to the ozone NAAQS,” wrote Malloy. “Your agency is in possession of all the necessary information to promulgate the required initial designations immediately. The other factors cited in your letter—background ozone levels, international transport, and exceptional event demonstrations—are immaterial to the initial designations, but instead are considerations for the next phase—the implementation phase.”

Connecticut is one of several states that presently have no areas with any designations under the 2015 ozone NAAQS.

After complaints were filed in court, Pruitt withdrew the delay and stated that the original October 1, 2017, deadline for making all designations once again applied. But as of the most recent filing in the California district court, the Agency has issued no nonattainment or unclassifiable designations.

“The result is that planning to attain the new standards is not required to begin in nonattainment areas that are without a designation, anti-backsliding protections are not in place, and many millions of people continue to suffer from unhealthy air, contrary to the Clean Air Act’s fundamental mandates,” state the AGs in the current complaint.

AGs’ complaint is here.

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