The Weld County logo on the lobby wall of the Weld County Administration Building in Greeley. November 6, 2020. (Alex McIntyre/staff photographer)

Weld County officials will consider options to continue fighting against the federal government’s decision to add Weld North to the Denver Metro for failing to meet federal ozone standards and the designation of the North Front Range.

The Weld County Commissioner issued a news release this week announcing the county’s continued concerns over the Department of Environmental Protection’s addition of the northern rural areas of the county to the 2015 ozone non-attainment area boundary. The US Court of Appeals for the DC Circuit upheld the EPA’s decision in a ruling late last month.

The county believes that the EPA will make the county wide short of limits (if the agency does not take action to reduce ozone, it will face consequences that could include withholding federal highway funding and imposing further environmental regulations). Alleged that it acted arbitrarily in assigning the The most recent data available, in addition to excluding data the county deems relevant.

“The EPA is a science-based agency that is expected to document its decisions and should not play games like that,” said the five attorneys representing the board in the lawsuit. John Jacus of Davis Graham & Stubbs LLP, one of them, said.

In addition to Jacus, Shannon Stevenson and Kathleen Pritchard of Davis Graham & Stubbs and Ethan Schenkman and Charlie Birkel of Arnold & Porter Kay Scholler LLP is represented on the board of directors. As of mid-March, the county paid approximately $436,118 to Arnold and Porter Kay Schorer for services related to the case.

The court found EPA’s explanation sufficient to limit the data it used to assess the contribution of northern Weld to ozone pollution during the implementation period. This was the fairest measure for the counties concerned and led to a quicker response.

“Although the EPA did not consider available monitoring data, weather data, or results of ozone photochemical modeling over the last four years or more in making its boundary designation, the court did not allow this ‘highly technical’ determination to affect EPA. We have entrusted it,” the county news release said. said. “The court did not address EPA’s selective removal of certain data from technical support documents, as Weld County raised in its brief.”

Data removed from technical support documents includes population and urbanization data that helped EPA to first designate Northern Weld as achieving ozone standards. The Weld portion in question is home to just 1 percent of the county’s total population, with a population density of less than five people per square mile, according to the county.

The latest technical support document also excludes meteorological data that show that non-attainment areas contribute less to ozone in northern Weld and Larimer counties compared to other adjacent attainment areas, according to the county. .

According to the court, the model presented by the EPA showed emissions from northern Weld to move to the underachievement area. The court agreed with EPA’s reasons for not including a forecast that suggested otherwise. That’s because those predictions didn’t take into account the full path an air parcel travels to one of the violation monitors (known as back trajectory). The rejected predictions also didn’t include historical trajectories for 2016 or for each day the monitors recorded design values ​​that exceeded national air quality standards, according to the court.

The court also found that state officials, who could have asked the EPA to disregard data from exceptional events, had not attempted to exclude the data as unrepresentative, thus preventing wildfire smoke-affected monitoring. Endorsed EPA’s use of the data.

The Arizona-based nonprofit Center for Biodiversity hails the ruling as a victory for improving air quality and encourages commissioners to “exempt oil and gas companies from contributing to asthma-causing smog.” accused of doing so.

“For too long, big oil companies have forced millions of Colorados to breathe dirty air,” Robert Eucary, a senior attorney at the nonprofit, said in a news release. “This ruling will force oil and fracking gas operators to reduce the dangerous, asthmatic-causing smog pollution that harms people’s health and pollutes the nature that makes Colorado so special. yeah.”

Jacus said the county’s legal team is evaluating options for the county to challenge the ruling and will make recommendations to the board at a later date.

“What troubles us with Judge (Gregory) Katsas’ decision is that the law requires that like counties be treated alike in making these important and very serious designations of underachievement. It’s his acknowledgment of Weld County’s position,” Jacus said. “They have been around for decades and put a burden on people and businesses, so we should not only burden them, but help solve the problem. I haven’t dealt with it since.”

The most immediate option is to file a new trial in the same court. Counties can also petition the Supreme Court for review, but this option is less certain because judges have to consider many factors before voting on whether to file a lawsuit, but it requires four Approval of a human judge is required.

The county’s third option is to work with the state to petition the EPA to consider redrawing the boundaries not only for the 2015 standard, but also for the 2008 standard, which is still in force, and provide administrative guidance. seeking relief. Jacus said the ruling created a larger boundary for the more stringent criteria and a smaller boundary for the less stringent criteria that excluded Northern Weld.

“I think that because of the complexity of managing the program and meeting standards, we could have a dialogue with the states about it and consider an administrative petition to the EPA as required by the Clean Air Act, rather than a judicial petition.” It might be appropriate to redraw,” Jacus said. “Then all stakeholders will have an interest in achieving ozone standards and setting appropriate boundaries.”