Energy, Environment, National

High levels of imported air pollution put EPA’s ozone agenda on the ropes

State air quality regulators, who are fighting to change the Obama administration’s unworkable ozone regulations, have received a boost from an unlikely source – the federal government itself.

A new study, conducted by the National Oceanic and Atmospheric Administration (NOAA) and the University of Colorado, finds most of the ozone pollution in the Denver metropolitan area is beyond the control of state and local regulators. On a day when ozone concentrations average around 75 parts per billion (ppb), only 17 ppb – or 23 percent – is “produced locally,” according to a statement from the researchers.

Last year, the U.S. Environmental Protection Agency (EPA) tightened the federal ozone standard from 75 ppb down to 70 ppb over the objections of state and local officials across the country, business groups and organized labor. According to the study, “high natural background” levels of ozone along the Front Range leave “very little room for local production” of ozone before the strict new standard is violated.

icon_op_edViolation – or “nonattainment”– of the ozone standard is a serious matter. Just about every sector of the economy has sources that produce ozone-forming emissions, including cars, trucks, power plants and businesses big and small. Persistent nonattainment triggers an enforcement process that requires state and local officials to impose new regulatory restrictions on these sources.

The EPA has veto power over these state and local changes, and effectively becomes “the planning commission, the zoning commission and the state permitting agency all rolled into one,” according to  Ray Gifford, former chairman of the Colorado Public Utilities Commission.

The NOAA-CU research strengthens the hand of air quality regulators with the Colorado Department of Public Health and Environment (CDPHE), who are pushing the Obama administration for changes to the strict new ozone standard. The EPA’s own research shows “only 20-40% of the ozone in the North Front Range of Colorado is due to in-state manmade sources,” said Will Allison, director of CDPHE’s Air Pollution Control Division. “Colorado will be continuing discussions with EPA and other states on ways to address this issue and will continue to work on reducing emissions that are within our control.”

Other critics include Gov. John Hickenlooper (D), who has called for the suspension of the new 70 ppb standard, and State Sen. Cheri Jahn (D), who argues the EPA is “setting us up to fail.” And at last year’s Rocky Mountain Energy Summit, which reconvenes this week in Denver, U.S. Sen. Michael Bennet (D) said he was “deeply concerned” about wildfires and other background ozone sources pushing the state into violation, which is “the perfect example of applying the law but doing it in a way that doesn’t make sense on the ground.” After the new 70 ppb standard was announced, Bennet was less than enthusiastic, calling on the EPA  to make the ozone rules “workable” for Colorado.

But like many issues tied to environmental regulation, the ozone standard divides Colorado Democrats. In June, when a bill to delay enforcement of the standard passed the U.S. House, Democratic U.S. Reps. Ed Perlmutter, Jared Polis and Diana DeGette voted against the measure, effectively siding with the EPA.

More recently, the bipartisan Western Governors Association has demanded changes to the EPA’s ozone regulations to prevent states and communities from being unfairly punished. As things stand, parts of the West will violate the new standard because of “high levels of uncontrollable background ozone,” including natural sources like wildfires and air pollution that drifts into the U.S. from other countries, the governors warned earlier this month.

To understand the dilemma facing state and local officials in Colorado, consider the following: The NOAA-CU study specifically targeted the oil and natural gas sector and concluded only 3 ppb of ozone along the northern Front Range was the result of energy production. A significant contribution, but still “small” compared to other sources, the researchers said. This is not surprising after years of tighter and tighter emissions controls in Colorado’s energy sector.

But even if you took those emissions to zero – by shutting down oil and natural gas production completely – the Denver metro area would remain in violation of the tighter 70 ppb ozone standard. Today’s concentrations are somewhere between 75 and 80 ppb. Sacrificing one of Colorado’s biggest economic sectors, to reduce ozone by 3 ppb, still wouldn’t be enough keep the EPA at bay.

This is a huge blow to “ban fracking” activists in Colorado who have persistently exaggerated the oil and gas industry’s contribution to ozone levels in the Denver metro area. But most of all, it’s a major embarrassment to the EPA, because it demonstrates just how unworkable the new ozone standard really is.

Something is very wrong when states and communities across the West will be held in violation of federal law for air pollution they didn’t cause and can’t control. And it’s even worse when the ozone standard has been set so tight that wiping out a whole sector of the economy still won’t be enough to make the EPA happy.

For the most part, the EPA has ignored the bipartisan backlash against the agency’s ozone agenda. Maybe that will work for now, but it won’t work forever. Either EPA officials will realize they must change course, or lawmakers will make the decision for them.

Simon Lomax is an associate energy policy analyst with the Independence Institute and a consultant who advises pro-business groups. From 2004 to 2012, he was a news reporter covering energy and environmental policy in Washington, D.C. Contact him at



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