Sept 18 (Reuters) – A divided U.S. appeals court on Monday partially invalidated the U.S. Environmental Protection Agency’s approval for Colorado’s plan to reduce smog near Denver, after an environmental group complained it essentially allowed “unlimited” pollution from fracking.
A split 2-1 panel of the 10th U.S. Circuit Court of Appeals agreed with the Center for Biological Diversity that the EPA broke the law when it approved in 2022 a state permitting plan for smog reduction that excluded emissions from temporary pollution sources, including fracking.
The court did not invalidate other elements of the permitting plan, which aims to reduce emissions from major new or modified stationary sources, such as power plants, of air pollution.
The environmental group had claimed in its 2022 lawsuit that the exclusion allowed unpermitted releases of the gas ozone during initial stages of fracking. That process involves drilling into the earth and injecting water and chemicals at high pressure to break rocks and release the gas trapped inside.
Under the Clean Air Act, the EPA is tasked with approving state permitting plans to reduce pollution in areas like Denver, which has some of the worst ozone pollution in the U.S. Ozone is a key component of smog, which can exacerbate asthma and other health concerns.
Circuit Judge Nancy Moritz, writing for the majority, said that the “EPA acted contrary to the law in allowing Colorado to exclude all temporary emissions under its permit program” since federal regulations do not allow such an exclusion.
The EPA didn’t immediately respond to a request for comment.
A dissent written by Circuit Judge Timothy Tymkovich said that the state plan would have been as strict or even stricter than the federal standards. He wrote that the court should have deferred to the EPA.
The Center for Biological Diversity said in a statement that the group now expects to challenge plans with “similar loopholes” that the EPA approved in other states including Texas, New Mexico and Pennsylvania.
The case is Center for Biological Diversity v. U.S. Environmental Protection Agency, 10th U.S. Circuit Court of Appeals, No. 22-9546.
For the Center: Robert Ukeiley and Ryan Maher of the Center for Biological Diversity
For the EPA: Elliot Higgins of the U.S. Department of Justice
Reporting by Clark Mindock
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