Denver smog haze pollution brown cloud

Air pollution over Denver in an undated photo. 

The state’s air quality regulator does not have the authority to report lower ozone levels to the federal government by factoring in international emissions and forest fire effects, the Court of Appeals decided last week in dismissing a pro-business group’s lawsuit.

“Polluters in the region refuse to clean up their mess and instead are pointing the fingers at neighbors — a hypocritical, cynical attempt to avoid accountability,” Jeremy Nichols, the climate and energy policy director for WildEarth Guardians, said following the ruling. “Thankfully, the court shot them down, keeping us on track for real clean air solutions in the Denver metro area and beyond.”

Defend Colorado, which describes itself as an alliance of community leaders “focused on defending Colorado’s economy from extreme anti-business policies,” asked the Air Quality Control Commission in 2019 to change the way the state calculated ozone emissions in the Front Range. Previously, the U.S. Environmental Protection Agency had classified the Denver metropolitan area and the northern Front Range as a moderate “non-attainment zone” for air quality based on 2008 standards.

If states do not meet standards in their problem areas by a certain date, the EPA may reclassify the non-attainment level more severely. At the end of 2019, the agency did just that, downgrading Colorado’s non-attainment to “serious.” In total, the non-attainment area covers Denver, Boulder, Jefferson, Adams, Arapahoe and Douglas counties, and portions of Weld and Larimer counties.

Ground-level ozone contributes to smog or haze, which can inflame airways and induce asthma attacks in humans. The EPA revisions mean Colorado must control emissions more strictly.

Each year, the state must submit to the EPA by May 1 a certification that air monitoring data are accurate. If the Colorado Department of Public Health and Environment could demonstrate to the federal government that Colorado would have met air quality targets but for emissions that originate outside the country or from “exceptional” events like forest fires, the state would avoid changes to its air quality classification.

The ACQQ declined to consider Defend Colorado's February 2019 petition to include those extra factors in the state’s reporting, saying the group lacked standing.

Defend Colorado filed a complaint in Denver District Court, alleging the ACQQ was obligated to hold a hearing, and that any data certification that did not include the extra factors was invalid.

Colorado Attorney General Phil Weiser echoed the AQCC’s determination to the court, arguing Defend Colorado had not demonstrated it would be harmed if the certified data remained unchanged.

“Defend Colorado claims to advocate for Colorado’s economy and to protect the state’s natural resources, but fails to identify how the Commission might resolve a controversy regarding how the law is applied to the organization or its members,” he wrote.

Judge Brian R. Whitney sided with the ACQQ and the Polis Administration, determining the annual data certification was not the proper means of demonstrating international emissions or exceptional events, and that the commission had no legal authority in the "creation, transmission, ratification, or manipulation” of the data.

In the Court of Appeals’ opinion issued on Jan. 28, the three-member panel agreed that a method existed for notifying the EPA of a state’s intent to demonstrate outside effects on air data — and Defend Colorado’s request was not it.

Furthermore, the Air Pollution Control Division, not the ACQQ, is the entity responsible for air quality monitoring and data submission, the court noted.

“Accordingly, we, like the district court, reject Defend Colorado’s contention that the Commission has a statutory duty to oversee Colorado’s May Data Certifications to the EPA,” wrote Judge David H. Yun.

The panel also found that although the AQCC is required to conduct public hearings prior to changing air quality standards, emission control regulations or other regulatory programs, certifying the air quality data did not fall under those categories.

Finally, the court dismissed allegations that the governor improperly influenced the AQCC's actions, citing a “dearth of factual allegations.”

Defend Colorado and its attorneys did not immediately respond to a request for comment. The Denver Post reported in March 2019 that the group’s lawyer refused to disclose to the AQCC who the funders were for Defend Colorado.

Nichols, with WildEarth Guardians, said that the Clean Air Act’s provision for international emissions was intended to apply to urban areas near the border, and that the dismissal of a lawsuit was a victory for health and climate in Colorado.

“Regulating clean air and public health isn't about throwing up your hands and saying there's nothing to be done, it's about confronting the pollution you can control so that you can account for the likelihood of events and still keep people safe,” he said.

The case is Defend Colorado v. Polis.

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