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Guardians to file suit against EPA over failure to crack down on smog in the Denver Metro area

January 21, 2022
Jeremy Nichols, WildEarth Guardians, (303) 437-7663, jnichols@wildearthguardians.org
In This Release
Climate + Energy  
#COCleanAir, #ClimateJustice, #KeepItInTheGround
DENVER—WildEarth Guardians today formally put the U.S. Environmental Protection Agency on notice of an impending lawsuit over the Agency’s failure to confront the Denver Metro region’s smog problem.

“When it comes to protecting people and clean air along Colorado’s Front Range, the Biden administration is unfortunately dragging its feet,” said Jeremy Nichols, Climate and Energy Program Director for WildEarth Guardians. “The Environmental Protection Agency is sadly shirking its legal duty to confront pollution, leaving us no choice but to hold them accountable in court.”

Ground-level ozone, the key ingredient of smog, has soared to dangerously high levels in the Denver Metro area, impacting communities up and down the Front Range, from Douglas County north to Larimer and Weld Counties. Ozone is a poisonous gas and dangerous lung irritant that can trigger asthma attacks, send people to the hospital, and even cause premature death. It forms when pollution from oil and gas extraction, tailpipes, and smokestacks reacts with sunlight.

Due to high ozone, the region was designated a “non-attainment,” or dirty air, area, and Colorado has been obligated since 2012 to bring ozone down to levels that meet federal health standards.

Unfortunately, Colorado has failed to meet its ozone cleanup deadlines. Despite claims by the state’s Department of Public Health and Environment that the region would meet federal health standards, the Denver Metro area failed in 2015, 2018, and again in 2021 to meet legally required clean-up dates.

Where a state fails to meet ozone cleanup deadlines, the Environmental Protection Agency is required reclassify dirty air areas and impose more stringent clean air safeguards.  In the case of the Front Range, the region was first classified as a “marginal” non-attainment area, then later as a “moderate” non-attainment area, and then a “serious” non-attainment area due to ongoing failures by Colorado to clean up the smog.

In 2021, Colorado was required to bring the Denver Metro area into compliance with ozone standards by July 20, 2021. Again, the state failed to meet this cleanup deadline.

By law, the Environmental Protection Agency was required to reclassify the region to a “severe” non-attainment area, a classification that would impose the most stringent clean air safeguards ever for the Denver Metro area. While the Clean Air Act required this reclassification be made by January 20, 2022. In spite of pleas from Coloradans, the Agency has yet to take any action.

“The Environmental Protection Agency’s delay is denying Coloradans the clean air they deserve,” said Nichols. “Make no mistake, this delay is costing us opportunities to protect children, families, seniors, and even active adults who are all vulnerable because unchecked smog.”

Under the Clean Air Act, any person can sue the Environmental Protection Agency to compel compliance with mandatory duties. Before filing suit, sixty days notice must first be provided.  Today’s letter kicks off that sixty day period.

The Environmental Protection Agency has a history of delaying clean air for Coloradans. In 2019, WildEarth Guardians won a lawsuit over the Agency’s failure to crack down on ozone in the Denver Metro area. And in 2021, a suit was filed over the Agency’s failure to sanction Colorado for not submitting a legally required ozone cleanup plan.

The Environmental Protection Agency’s latest delay comes even as President Biden has made public health protection a priority.

“The disconnect between what President Biden says and what his agencies actually do or don’t do is growing like an unchecked tumor” said Nichols. “It’s shameful that while the Biden administration has brought new hope for health, the environment, and our climate, that the Environmental Protection Agency and others in the administration continue to drag their feet for polluters.”

Smog plagued the Denver Metro area in 2021. Denver skyline on July 12, 2021. Photo by Colorado Department of Public Health and Environment.