Three environmental groups are threatening to sue a laggard Environmental Protection Agency for failing to do its job in ongoing efforts to clean up the Valley of the Sun's notoriously polluted air.
The agency has missed more than 50 deadlines in recent months under the Clean Air Act to approve or disapprove of Arizona's plans to reduce ozone in metro Phoenix. It has also failed to review, by another deadline, the ozone levels of more than a dozen of the smoggiest regions in the country, including our own Valley, according to two separate notices of intent to sue EPA, which were sent to the agency Monday and Tuesday.
"Every day of delay ... that's all the longer that we're waiting for clean air," said Sandy Bahr, Grand Canyon chapter director of the Sierra Club, which co-signed the intent to sue over delayed ozone-level reviews. That letter was sent to EPA director Andrew Wheeler on Monday.
The second notice, sent to Wheeler on Tuesday, came from the Center for Biological Diversity and the Center for Environmental Health. It called out the agency for failing to review Arizona's ozone-reduction plans on time.
The Clean Air Act requires notices of intent to sue to be sent 60 days before a lawsuit is actually filed.
Under that law, EPA was required to assess by January 20, 2019, where the country's polluted regions stand in meeting federal ozone standards. It also missed 51 deadlines since November 2017 (most of them were in December 2018) to rule on Arizona's plans to cut down on ozone.
Although the issues at hand are procedural, local environmental advocates and officials say the now-missed deadlines serve an important function. They worry that EPA's slacking would hinder the state's ongoing efforts to cut down on smog-producing, asthma-inducing ozone.
“The process is also designed to save people from having asthma attacks or being killed,” said Robert Ukeiley, a lawyer with the Center for Biological Diversity.
"It's already been established that the air is unsafe to breath in the Phoenix-Mesa area," Ukeiley added.“We need to know sooner rather than later whether the plan is going to work or not.”
Erin Jordan, spokesperson for the Arizona Department of Environmental Quality, acknowledged via email that the EPA's Region 9, which includes Arizona, did have a backlog of plans to review. In response to a question about whether the department followed up with EPA after not receiving responses by deadline, Jordan wrote that "ADEQ has on-going contact with EPA" as it reviews plans.
Ukeiley doesn't entirely trust the EPA overall. But he said he had faith in the "good career employees" in Region 9 to review Arizona's plans.
Two reasons for that lack of trust: Wheeler, the agency's newly confirmed director, is a former lobbyist for the coal industry. The head of the Region 9 office is Michael Stoker, who once worked for an agricultural industry group and was also the spokesperson for an oil company that the EPA sued in 2011 for violating the Clean Water Act.
Clean Air Act standards for ozone have gradually become stricter over the years, forcing Arizona to chase moving targets in order to meet air-quality standards. Metro Phoenix still hasn't met standards from 2008, and by 2021, it is supposed to meet the even-more-stringent standards set in 2015.
As a result, from time to time, the state must upgrade its plans to reduce pollution.
Those plans are wide-ranging, yet focus on cars and trucks, which tend to be the biggest polluters in the Valley, said Lindy Bauer, environmental director for the Maricopa Association of Governments. Among these efforts are emissions testing for vehicles, programs to encourage ride-sharing, and efforts to increase telecommuting.
"The EPA is supposed to be watching to make sure the air-quality standards are met to protect public health," Bauer said.
Under this process, the plans that the state submits to EPA contain rules to reduce emissions, and those rules should take effect around the time that the state submits those plans.
But the plans themselves don't take effect until EPA signs off on them. Or, in some cases, EPA sends them back to the state, usually with the message that they don't go far enough, said Bahr of the Sierra Club.
Emissions from cars and trucks contribute substantially to the formation of ozone, which is particularly harmful to people with asthma or other respiratory diseases.
Asthma rates in Arizona — 9.3 percent — are higher than the national average of 8.3 percent, according to the latest data from the CDC, which is from 2016.
Its mortality rate from asthma is among the highest in the country, at 14.2 percent. Only Arkansas, Mississippi, Oregon, and Utah had higher rates of death by asthma, according to CDC data, although rates in 10 states and the District of Columbia were considered unreliable or were suppressed.
In the notice filed Tuesday, representatives of the Center for Biological Diversity and the Center for Environmental Health said they would prefer not to sue. Rather, they want to see the EPA simply do its job.
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If groups do end up suing, they'll file the civil lawsuit in U.S. District Court for the Northern District of California, because EPA Region 9 is based in San Francisco, Ukeiley said. Presuming that a judge orders the agency to comply by a certain date, and it fails again to do so, it could be held in contempt, he added.
Margot Perez-Sullivan, an EPA spokesperson, said the agency was aware of the intent to sue but declined to comment, citing pending litigation.