EPA Can Ignore ‘High-Wind’ Days When Judging Clean Air

Tenth Circuit upholds use of 'exceptional events' rule four days after D.C. Circuit does

For someone who lives on Colorado’s eastern plains, high winds might not seem to be an “exceptional event.” But for the purpose of determining compliance with the Clean Air Act, it is, according the federal government’s position that an appeals court just upheld.

A Coloradan challenged the EPA’s use of the “exceptional events” rule when the agency determined that the State of Colorado satisfied federal air quality requirements. The town of Lamar had been classified as failing to meet the Clean Air Act’s standards for ambient air quality, and the state had been working to bring Lamar back up to standards. In 2016, the EPA approved Colorado’s air quality maintenance plan for Lamar, but in its assessment, the agency declined to account for 34 days where the area’s airborne dust spiked due to high winds. The EPA classified those windy days as exceptional events, but petitioner Robert Ukeiley claimed the agency abused its discretion in doing so.

On July 24, a 10th Circuit Court of Appeals panel sided with the EPA, saying that it used the exceptional events rule correctly by not counting the high-wind days against the state. The court denied Ukeiley’s petition for review under the Administrative Procedure Act. The EPA’s 10th Circuit victory comes days after the D.C. Circuit Court of Appeals upheld the EPA’s interpretation of the exceptional events rule itself.

To read this story and other complete articles featured in the July 30, 2018 print edition of Law Week Colorado, copies are available for purchase online.