2020 Environmental Real Estate Issues

After determining that sulfur dioxide concentrations in the air in two rural Texas counties exceeded the National Ambient Air Quality Standard, EPA designated these counties as “nonattainment.” The State of Texas and companies with operations in those counties filed Petitions for Review to the 5th Circuit claiming EPA’s designation was unlawful because 1) evidence available at the time of designation showed attainment, 2) EPA treated these Texas counties differently from other counties, and 3) EPA incorrectly concluded it lacked authority to delay designation while the State of Texas gathered more data. The 5th Circuit rejected all three arguments and upheld EPA’s action; one member of the three-judge panel dissented.

Deference on Technical Issues, Failure to Comment, and Legal Deadline
EPA relied on modeling data submitted by Sierra Club that showed nonattainment; EPA rejected data that showed attainment submitted by one of the companies. While acknowledging some limitations in the Sierra Club model, EPA concluded it was adequate and superior to the model used by the company. The 5th Circuit concluded it must defer to EPA’s technical judgment.

In rejecting the argument of different treatment, the 5th Circuit held the petitioners did not adequately raise the issue in comments during the administrative proceeding.

Finally, the 5th Circuit held that EPA correctly concluded it was under a legal deadline to make a designation. To analyze data already collected, additional delay may have been possible, but EPA did not have authority to await more data collection.

Dissent: Monitoring Data Contradicted Model, Failure to Follow Regulations and Policy
The dissent argued that EPA’s action was unlawful. First, Sierra Club’s model predicted concentrations nearly three times the concentration detected at one monitoring station; EPA’s failure to consider that contradiction was arbitrary and capricious. Second, EPA’s rejection of the company’s model on procedural grounds violated EPA’s own regulations. Third, EPA’s policy documents allow for designation only when EPA can “clearly demonstrate” nonattainment, which EPA cannot do in this case.

To see the opinion and the dissent https://www.ca5.uscourts.gov/opinions/pub/17/17-60088-CV0.pdf