Clinicians back lawsuit challenging EPA decision to weaken Detroit ozone standards ⋆

Multiple environmental justice and health advocates filed briefs on Wednesday supporting a challenge to the U.S. Environmental Protection Agency’s (EPA) decision to label metro Detroit in compliance with federal ozone standards.

In the case filed by the Sierra Club and the Great Lakes Environmental Law Center in July, the groups argue the Michigan Department of Environment, Great Lakes and Energy (EGLE) and the EPA failed to show that the air quality in Detroit was clean enough to meet federal air quality standards. 

Detroit is the country’s fifth worst city for people with asthma, new report says

They also argue the state and EPA failed to demonstrate how improvements of air quality came from “permanent and enforceable” emissions reductions, with the Sierra Club arguing the agencies used data from years where air pollution was depressed as a result of the COVID-19 pandemic while applying for redesignation.   

By removing Detroit’s nonattainment designation, the Sierra Club argues it has removed the state’s obligation to enact ozone reduction plans. It also argues that the EPA redesignated the area without first ensuring Michigan had all required pollution rules to limit ozone-precursor pollutants. 

The Sierra Club also called into question EGLE’s application for an “exceptional event demonstration” that allowed the agency to exclude air quality data for two days of ozone readings in 2022, arguing that wildfires in Canada contributed to high ozone levels in the Summer of 2022. 

Ground-level ozone, or smog, is a harmful pollutant which can exacerbate lung conditions including asthma and chronic obstructive pulmonary disease. It is formed when pollution from cars, industrial boilers, refineries, chemical plants and other sources react in the presence of sunlight

Alongside the Sierra Club and Great Lakes Environmental Law Center, multiple environmental justice groups and health care advocates have raised concerns about the impact the change in regulations will have on Detroit residents, submitting briefs in support of the suit.

“Health professionals see firsthand how poor air quality due to historic environmental racism leads to severe and chronic suffering,” said Kindra Weid, coalition coordinator for MI Air MI Health, which aims to amplify health organizations advocating policies to improve outdoor air quality and combat the impacts of climate change. 

“EPA failed to protect public health with this ruling. We are asking the court to reverse the EPA’s decision before it leads to more sick people, more hospital visits, and more avoidable deaths in Detroit,” Weid said. 

In a statement from Earthjustice, which represents both MI Air MI Health and Michigan Clinicians for Climate Action in the case, historically redlined communities are disproportionately overburdened by air pollution, including their proximity to industrial sites and freeways. 

Detroit also ranks fifth among the most challenging cities in the country for people with asthma, a disease that affects the lungs and can cause shortness of breath,wheezing, chest tightness and coughing.

According to a statement from Hugh McDiarmid, communications manager for EGLE, efforts across the state have contributed to a reduction in ozone pollution across the state, leading to the attainment designation for southeast Michigan. However, more work needs to be done in neighborhoods located near industrial facilities, particularly in low-income communities and communities of color, McDiarmid said. 

“The recent prevalence of Canadian wildfire smoke impacting our air monitors is an event beyond the control of state regulators. The EPA’s Exceptional Events demonstration is specifically designed to account for such events, and ensure states and their residents aren’t saddled with the responsibility for a problem they are unable to address,” McDiarmid said. 

“While we — along with other states — are looking to the EPA for potential additional guidance in light of the increasing impacts of the wildfire smoke, we are confident that the exclusion of a very small portion of data due to the fires was appropriate and meets all EPA criteria for protecting all Michiganders,” McDiarmid said. 

Alongside Michigan Clinicians for Climate Action and MI Air MI Health, the University of Detroit Mercy School of Law Environmental Law Clinic filed an amicus brief on behalf of the Detroit Hamtramck Coalition for Advancing Healthy Environments, the Eastside Community Network, and the Science Policy Network-Detroit.

Southeast Michigan ozone concentration trends. | Courtesy of Michigan Department of Environment, Great Lakes and Energy

“Although smoke from wildfires may ‘not [be] reasonably controllable or preventable,’ the people living in the Detroit area nevertheless breathe it in, in addition to the other sources of air pollution that are controllable or preventable. Wildfire smoke negatively impacts the health and welfare of those living in the Detroit Area, and setting those effects aside directly contradicts the [Clean Air Act’s] purpose,” the brief reads. 

The EPA did not respond to an emailed request for comment in time for publication. 

If successful, the Sierra Club suit would reverse the EPA’s decision to designate Metro-Detroit as in attainment with the 2015 National Ambient Air Quality Standard. 

Elena Saxonhouse, managing attorney for the Sierra Club said that under the attainment designation, new pollution sources still need to obtain a permit, but they don’t necessarily need to offset the pollution they created or consider a less polluting alternative project like they would if they were in a nonattainment area. 

While the state had also implemented stricter regulations for volatile organic compounds and nitrous oxides — the pollutants that contribute to ozone — the enforcement of those stricter standards was suspended after metro Detroit was redesignated to be in attainment. 

“It’s not to say there’s no protections in place, it’s just a weaker pollution control regime than it would be otherwise,” Saxonhouse said. 

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authored by Kyle Davidson
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