The U.S. Environmental Protection Agency was wrong to determine Michigan met federal health and environmental standards for ozone pollution or smog in the Detroit area in 2023, a federal appeals court judge has ruled.
U.S. 6th Circuit Court of Appeals Judge Helene White on Dec. 5 issued a split decision in a case about how environmental regulators measured Detroit air quality in 2022, when wildfire smoke drifted over Detroit and affected the air quality monitor readings for a few days in June.
Michigan considered those days “exceptional events” because of the wildfire smoke and didn’t include the high ozone pollution readings in its calculation to the EPA.
With those days tossed, the state was able to argue in 2023 that Michigan met federal air quality standards for ground-level ozone pollution. The seven-county Metro Detroit region had previously been out of compliance with the ozone standards.
The Sierra Club sued, arguing the wildfire smoke did not meaningfully change ozone readings and that the Michigan Department of Environment, Great Lakes and Energy failed to analyze how local pollution sources contributed to the ozone levels on those days. The environmental advocacy group also challenged the EPA’s finding that the region met federal standards for ozone pollution.
White determined the exceptional events designation was appropriate, siding against the Sierra Club in deciding the EPA and EGLE correctly analyzed the smoke’s impact on ozone readings in June 2022.
She sided against EPA in deciding the EPA was wrong to put Michigan back into attainment for ground-level ozone without Michigan adopting control measures that would cut volatile organic compounds, which contribute to ozone pollution.
EPA determined the Detroit area was out of attainment for ground-level ozone on April 13, 2022. Michigan regulators did not impose control technologies for ozone-causing pollutants by the deadline in early 2023. Instead, they asked EPA to redesignate the area as in attainment with the air quality rules.
Michigan was obligated to implement control technologies even though it had submitted a redesignation request, White said in her order. Control technologies include efforts to reduce volatile organic compounds from being released from manufacturing plants and industrial sources, according to EPA documents.
Sierra Club member and Detroit environmental justice activist Dolores Leonard cheered the outcome of the case.
“Without this victory, EPA’s decisions would have let Michigan avoid the rules needed to reduce pollution and keep the air we breathe safe,” Leonard said. “At a time when asthma rates are rising in Detroit, especially in Black communities, that’s unacceptable. With the backing of this federal court decision, our community will continue to push the state of Michigan to take much-needed action to relieve ozone pollution in this area.”
The Clean Air Act requires those pollution control measures to be implemented even after the EPA puts an area back into attainment to ensure the air quality remains healthy, said Nick Leonard, executive director of Great Lakes Environmental Law Center, which argued the Sierra Club’s case.
White’s order means the EGLE will have to reapply for the attainment of the ozone standard, Leonard said.
“At the very least, I would say they have to correct the legal deficiency, which was that they didn’t enact the pollution control rules that are typically required for areas that are in non-attainment for this long,” he said.
The EPA is reviewing the decision, its press office said. The office did not respond to a question about whether it would ask Michigan to adopt volatile organic compound control measures as a result of White’s decision.
The EGLE also is reviewing the ruling, spokesman Dale George said.
“While EGLE was not a party to the case and is not able to speak in detail about the legal outcome, we were encouraged that the court supported the use of exceptional events demonstrations and acknowledged the sound science behind EGLE’s determination that the Detroit area met the health-based ozone standard,” George said.
Leonard said he was disappointed but not surprised that White ruled against the Sierra Club’s arguments that EGLE and the EPA did not correctly account for wildfire smoke’s impact on ozone readings in 2022.
That issue is going to plague communities as climate change causes northern wildfires to become more common and kick smoke into Michigan, he predicted.
“If we start to essentially cut out bad air quality days because of the claim they were partially influenced by wildfire smoke … , you create this disconnect between the regulatory systems that are meant to protect people and the actual air pollution that people are breathing,” Leonard said.
ckthompson@detroitnews.com
