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Judge Upholds Bexar County, Tex. Ozone Reclassification

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On Wednesday, the Fifth Circuit issued an opinion in the case brought by the State of Texas against the Environmental Protection Agency (EPA). The opinion upholds a regulatory reclassification on the amount of ozone in Bexar County issued by the EPA, stating that the decision was within the discretionary authority granted by statute. The petition from Texas argued that the EPA’s action was too harsh and unfounded. The decision also denies the petition from Sierra Club and the Texas Commission on Environmental Quality, which argued that the EPA was too lenient in its classification.

The classification being litigated was regarding the amount of ozone in Bexar County, Texas. Ground-level ozone is associated with decreased lung function and respiratory problems as well as having detrimental effects on wildlife and agriculture. Under the Clean Air Act, 42 U.S.C. §§ 7401–7671q, every 5 years the EPA conducts a survey and provides a designation for each county under the National Ambient Air Quality Standards (NAAQS). These designations then require action be taken on ozone-emitting facilities and machinery.

The opinion recounted that, in 2015, the EPA tightened its standards to designate that an ozone component of 0.07 parts per million earned a “nonattainment” standard and required state action. In 2018, Texas wrote to the EPA to indicate that Bexar County would reach those standards by 2020 and requested that the county be designated as compliant in the interim. The EPA declined and required that the state begin remediation action. Texas sued, indicating that the EPA should give deference to the determination issued by the state.

The Fifth Circuit indicated that the EPA had the authority to make changes it deems necessary, Texas’ interpretation was inconsistent with the language of the statute,  and the interpretation offered by the EPA was reasonable under the statute. The court also held that the interpretation was not arbitrary or capricious in its application, and did not require the EPA to make a designation based upon the future prospects in a county instead of the current status.

The Sierra Club also intervened in the suit, protesting that the EPA was not sufficiently stringent in its review of attainment standards for Bexar and the surrounding counties. While the Sierra Club agreed with the EPA that Bexar County should have a non-attainment status, the Sierra Club argued that the counties surrounding Bexar County and the ozone producing entities there were contributing to Bexar County’s non-attainment status and should likewise be designated as non-attainment, even if the air quality directly measured in those surrounding counties met the attainment threshold. The court applied the same analysis as noted above in the Texas argument and indicated that the decision to grant attainment status under the NAAQS for the surrounding counties was within the discretion of the EPA.

Sierra Club was represented by Baake Law and its internal counsel. The Texas Environmental Defense Fund was represented by its internal counsel. EPA and the state of Texas were represented by governmental attorneys. 

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