EHS Administration, Regulatory Developments

Texas Takes EPA to Court Again Over Nonattainment Designation

In the latest move in an ongoing battle with the EPA, the state of Texas and its environmental officials filed a petition dated January 28, 2022, asking the D.C. Circuit Court of Appeals to review the EPA’s revised findings that ozone levels in El Paso County exceed the 2015 National Ambient Air Quality Standards (NAAQS).

With a designation as a nonattainment area, under the Clean Air Act (CAA) NAAQS regulations, the Texas Commission on Environmental Quality (TCEQ) would be required to develop a State Implementation Plan (SIP) outlining how El Paso County will attain and maintain the standards by reducing air pollutant emissions.

The latest filing follows a July 2020 ruling by the D.C. Circuit requiring the “EPA to reconsider its prior 2015 ozone [NAAQS] designations for El Paso County … pursuant to the process for designating attainment areas under Section 107(d) of the Clean Air Act,” states a Lexology article by law firm Sidley Austin. “According to EPA, the revised ozone designations for these counties were based on air quality monitoring data from the years 2014-16, which were the most recent data that states were required to certify at the time the EPA notified states of its intended designations and any intended modifications to their recommendations in December 2017.”

Further background

Back in 2018, environmental organizations filed a lawsuit challenging EPA findings that El Paso County complied with the NAAQS.

“El Paso County is one of many counties the EPA incorrectly designated in ozone attainment during the Trump administration,” reports the El Paso Times. “The D.C. Circuit ruled in July 2020 that more than a dozen counties in the Southwest and Midwest had been incorrectly designated as in compliance with ozone standards.

“TCEQ has also challenged the EPA’s plans to downgrade El Paso even further, from marginal to moderate nonattainment. TCEQ argues ozone emissions from Juárez are driving the problem in El Paso and Texas should get an exemption.”

Marginal nonattainment status means federally funded projects and new construction face strict environmental assessments. A downgrade to moderate nonattainment status would result in even stricter regulations for existing ozone sources. 

“TCEQ must start regulating these El Paso polluters instead of playing the blame game,” says Miguel Escoto of El Paso—an organizer with the nonprofit Earthworks—in the El Paso Times.

“We need strong ozone pollution protections, and we need EPA Region 6 Administrator Dr. [Earthea] Nance’s help to intervene and put an end to this legacy of environmental racism facilitated by TCEQ,” notes Dave Cortez, president of the Lone Star Sierra Club, in the El Paso Times.

Recap

In final analysis, it boils down to what appears to be an inability to face facts.

The Trump administration was industry-friendly and said El Paso County air quality was fine. Environmental groups disagreed and filed suit. The D.C. Circuit said the EPA was incorrect and ruled the county was a noncompliance area.

The TCEQ fought back and succeeded when the D.C. Circuit remanded the nonattainment status back to the EPA, which reevaluated “the designations for the remanded counties by applying a uniform, nationwide analytical approach and interpretation of the designation provisions of the Clean Air Act (CAA) … ,” according to the EPA. 

In line with the Biden administration’s ongoing commitment to cleaning up air pollution, El Paso County has again been designated as a nonattainment area.

The TCEQ is not giving up the fight and has gone back to the D.C. Circuit, asking for another review of the EPA’s final action.

Attainment status is good for business. “Many cities around the country have been able to use their attainment status as a drawing point for businesses,” states  the TCEQ in “Response to Comments Received Regarding the El Paso 8-Hour Ozone Maintenance Plan State Implementation Plan (SIP) Revision.”