The U.S. Environmental Protection Agency will be allowed to reconsider its ozone designations for the southeastern part of Wisconsin but the current standards will remain in place, according to a ruling from the D.C. Circuit Court of Appeals.
The court did require the EPA to issue its revised designations “as expeditiously as possible.”
In late 2017, the EPA said it planned to designate all of Milwaukee, Ozaukee, Racine, Washington, and Waukesha counties as not in attainment of the 2015 ozone standard, which lowered the allowable amount of ambient ozone in the air from 75 to 70 parts per billion.
But in May 2018, the agency reversed course and only designated a relatively narrow stretch along Lake Michigan in Kenosha, Milwaukee, Ozaukee and Sheboygan counties as not meeting the standard.
The decision lifted some uncertainty for Foxconn Technology Group’s planned manufacturing campus in Mount Pleasant. Had the area received a non-attainment designation it could have limited Foxconn’s ability to build or expand its facility or at least add to the cost of future expansions.
The new designations were challenged by Clean Wisconsin, the state of Illinois and city of Chicago in 2018, contending the EPA did not have a basis for changing its designations.
Internal EPA emails obtained by Clean Wisconsin and the Sierra Club suggest then EPA administrator Scott Pruitt and other political appointees had overruled the concerns of agency scientists in making the decision.
The emails, shared with BizTimes by Clean Wisconsin, suggest Wisconsin in some cases had cherry-picked data to establish how far inland the nonattainment areas should extend.
“My background is in ozone chemistry. I do not see a sound technical basis for the areas we are being directed to finalize in Wisconsin,” Jenny Liljegren, a physical scientist in the EPA Region 5 attainment planning and maintenance section, wrote in April 2018. “I will need the wordsmithing of the legal and policy experts if we are really going to do this – I am still in disbelief.”
Last year, the EPA asked the court to allow it to reconsider its designations, arguing that in hindsight that the court could benefit from additional explanation. The Wisconsin Department of Justice sought to block that request, arguing the agency had plenty of time to make its decision and taking a second look would be costly for the state and cause uncertainty for businesses.
On Friday, the D.C. Circuit court granted the EPA’s request to allow for additional explanation, but also did not vacate the current designations the EPA put in place.
The court’s opinion noted that vacating the designations would simply leave the southeastern Wisconsin counties as “undersigned” areas for the 2015 standards.
“Nothing about that status will immediately subject the areas to more stringent controls,” the opinion says.
The Clean Air Act also gives the EPA “broad discretionary authority” to determine what areas contribute to ozone violations, the court noted.
“Given this, despite the deficiencies in EPA’s current explanations, we think there is at least a realistic possibility that EPA will be able to substantiate the relevant designations on remand,” the opinion says.
