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  • June 24, 2019

    Federal Ozone Litigation: What's at Stake for Wisconsin

    As we head into another summer ozone season, EPA's final nonattainment designations for Wisconsin counties remain in effect, and remain in dispute. Katie Nekola discusses the status of Clean Wisconsin v. United States Environmental Protection Agency and what it means for Wisconsin.

    Kathryn A. Nekola

    Earth atmosphere

    The Wisconsin Department of Natural Resources (WDNR) issues Air Quality Advisories on days when ground-level ozone reaches unhealthy levels. When this occurs, typically on hot summer days, children, the elderly, and people with respiratory illnesses such as asthma are warned to stay indoors and avoid exercise.

    These advisories are most often issued for counties in eastern Wisconsin. The Clean Air Act requires federal regulatory agencies to protect the public health and welfare by promulgating air quality standards that determine state planning and emission control requirements.

    Regulation of ‘Bad’ Ozone

    Ground-level ozone is formed when nitrogen oxides (NOx) and volatile organic compounds (VOCs) – emitted largely by power plants, industries, and motor vehicles – react together in sunlight.1

    Katie Nekola Katie Nekola, U.W. 2004, is general counsel with Clean Wisconsin in Madison, where she practices in environmental and energy law.

    Congress directs the U.S. Environmental Protection Agency (EPA) to issue air quality standards for ozone to protect public health. The primary ozone standards are intended to protect against adverse health impacts such as reduced lung function, increased respiratory symptoms and pulmonary inflammation, and any effects that contribute to the need for medical care and to mortality.

    In October 2015, EPA revised the primary and secondary National Ambient Air Quality Standards (NAAQS) for ozone to a level of 0.070 parts per million (ppm). EPA revised the new NAAQS based on new evidence that showed health impacts at lower levels of ozone exposure.

    When EPA sets a new or revised NAAQS, it is required to designate all areas in the country as nonattainment, attainment, or unclassifiable, pursuant to the Clean Air Act section 107(d)(1).

    Designations are important because they determine how stringent emission controls must be in any geographic area. Designations are based primarily on data from air monitors, and in Wisconsin, 30 air monitors measure air quality throughout the state.

    Wisconsin’s Air Quality and the Designation Process

    Southeast Wisconsin counties fluctuate in and out of attainment over time. Although ozone concentrations have decreased overall, EPA has lowered the standard as more is known about the adverse impacts to human health from ozone. Between 2014 and 2016, some air monitors located along the Lake Michigan shoreline registered violations of the 2015 ozone standard; the highest ozone levels were recorded at the Kohler-Andrae monitor in Sheboygan. In 2018, the Wisconsin Legislature passed a law that requires WDNR to exclude the Kohler-Andrae monitor from the network used to determine compliance with the NAAQS.

    On Dec. 20, 2017, EPA sent letters to states and tribes, announcing intended designations. In Wisconsin, EPA’s intended nonattainment designations included all of Milwaukee, Ozaukee, Racine, Washington, and Waukesha counties, and parts of Door, Manitowoc, Sheboygan, and Kenosha counties.

    EPA requested that states submit any additional information they wanted EPA to consider when making final designations. Wisconsin had initially recommended that all counties in the state should be designated as in attainment for the 2015 ozone standard. Wisconsin objected to EPA’s intended designations, asserting that any NAAQS violations were due to “emissions originating from outside the State of Wisconsin.”2 WDNR recommended a new “distance-from-the-shoreline” method to define nonattainment area boundaries.

    On April 30, 2018, EPA finalized its attainment/nonattainment designations, which were published on June 4, 2018.3 For Wisconsin, EPA modified all of its intended designations, eliminating nonattainment designations for three counties, and significantly reducing nonattainment areas in six other counties.

    Clean Wisconsin v. United States Environmental Protection Agency

    In early August 2018, several governmental and environmental groups4 filed a petition for review of those designations in the U.S. Court of Appeals for the District of Columbia Circuit.5

    Arguing that the final NAAQS designations for Wisconsin counties were arbitrary, capricious, and an abuse of discretion, petitioners noted that “EPA’s rationale changed between the initial designation and final designation, with no apparent change in data.”6 Petitioners asked the court to vacate and remand the challenged designations.

    Emails released in response to a Freedom of Information Act (FOIA) request to EPA seem to support the view that the dramatic narrowing of nonattainment areas in eastern Wisconsin counties were not based on record evidence. Emails recently released in response to a FOIA request to EPA and published in The New York Times show that EPA scientists objected to the significant reductions in nonattainment areas in Wisconsin.

    “I do not see a sound technical basis for the areas we are being directed to finalize in Wisconsin,” wrote Jennifer Liljegren, an EPA physical scientist.7

    In its answering brief, EPA requested that the designations for seven of the nine disputed county designations in Wisconsin be remanded without vacatur for the agency’s review. In making that request, EPA did not admit any error, but instead asserted that upon reconsideration, “EPA could supplement the record or modify the remaining designations in ways that could moot Petitioners’ challenges or at least narrow the issues for judicial review.”8 EPA requested remand for all but Sheboygan and Door counties.

    Almost immediately after EPA filed its brief requesting remand for most of the Wisconsin designations in dispute, the State of Wisconsin – an intervenor in the case – filed a motion to increase the word limit for its brief in support of EPA. Stating that EPA’s brief had not “substantively addressed” the majority of petitioners’ Wisconsin-specific arguments, and that EPA’s “new argument” regarding remand of the seven counties’ designations was unforeseen, Wisconsin maintained that the designations are correct and “amply supported in the administrative record.”9 In its request for more words, Wisconsin noted that it would address petitioners’ Wisconsin-specific arguments and respond to EPA’s argument for remand.10

    Petitioners objected to Wisconsin’s request, pointing out that since Wisconsin intervened in support of EPA, expanding its supporting brief in order to argue with EPA’s remand request was inappropriate.11 The court granted the state’s request for more words, and directed Wisconsin to address in its brief whether it may, as an intervenor supporting respondents, defend designations of certain areas as attainment or unclassifiable when respondents now seek a remand of those designations.

    What’s Next

    As we head into another summer ozone season, EPA’s final attainment/nonattainment designations for Wisconsin counties remain in effect, and remain in dispute.

    Further rounds of briefing and oral argument will occur before the D.C. Circuit rules in this case. The outcome of Clean Wisconsin et al. v. EPA may determine which areas in Wisconsin will be subject to planning and emission reduction requirements under the Clean Air Act, Part D.12 It may also determine Wisconsin’s air quality, ozone levels, and the respiratory health of its citizens.

    This article was originally published on the State Bar of Wisconsin’s Environmental Law Section Blog. Visit the State Bar sections or the Environmental Law Section web pages to learn more about the benefits of section membership.


    1 83 Fed. Reg. 25,777 (June 4, 2018).

    2 Clean Wisconsin v. United States Environmental Protection Agency, Case No. 18-1203, Petitioners’ Joint Proof Opening Brief, p. 14.

    3 83 Fed. Reg. 25,776 (June 4, 2018).

    4 Clean Wisconsin; Sierra Club; State of Illinois; City of Chicago; Environmental Law and Policy Center; Respiratory Health Association; City of Sunland Park, New Mexico; Board of County Commissions of Boulder County; Center for Biological Diversity; Familias Unidas del Chamizal; National Parks Conservation Association.

    5 Clean Wisconsin, supra note 2.

    6 Clean Wisconsin, supra note 2, at 60.

    7E.P.A. Experts Objected to ‘Misleading’ Agency Smog Decision, Emails Show,” The New York Times, May 24, 2019.

    8 Clean Wisconsin, supra note 2, at 60 (EPA’s Proof Answering Brief, U.S. Court of Appeals).

    9 Clean Wisconsin, supra note 2, at 4 (State of Wisconsin’s Motion to Increase Word Limit for Its Brief in Support of Respondents).

    10 Id.

    11 Clean Wisconsin, supra note 2, at 3 (Petitioners’ Joint Opposition to Respondent Intervenor State of Wisconsin’s Motion to Increase Word Count for its Brief in Support of Respondents).

    12 83 Fed. Reg. 25,777 (June 4, 2018).​

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    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

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