El Paso role in New Mexico ozone levels remains unknown
By Michael Gerstein | mgerstein@sfnewmexican.com
Updated
After more than a year of legal proceedings, the Washington, D.C., Circuit Court of Appeals seems to have dropped the issue of whether to hold El Paso responsible for air pollution drifting into south-central New Mexico.
The U.S. Environmental Protection Agency had flagged Sunland Park and other parts of Doña Ana County for not meeting federal smog standards. Despite a 2016 study from the New Mexico Environment Department showing that the bulk of the air pollution there was blowing over from neighboring El Paso and Juárez, Mexico, the EPA had argued in a lawsuit that El Paso was meeting air quality standards while Sunland Park was not.
The small community of roughly 20,000 people was part of the only section of New Mexico that failed to meet the federal ozone threshold after the EPA strengthened its standards in 2015. The agency did not hold El Paso responsible.
But the EPA appears to have conceded that El Paso is not meeting air quality standards, according to Las Cruces-based lawyer David Baake. Baake represented Sunland Park and an El Paso community group that sued the EPA over its decision to not force El Paso to come up with a plan to stem the flow of smog wafting into southern New Mexico.
The D.C. Circuit Court of Appeals has not scheduled time for arguments pertaining to the El Paso smog question in an upcoming court proceeding scheduled Nov. 6 on a consolidated case related to similar ozone issues in Colorado, Illinois, Michigan, Wisconsin and other states.
Although the court did not issue a formal ruling on whether the EPA must review its El Paso ozone designation, the court’s decision to take that issue off of the upcoming oral argument agenda means that the El Paso issue, in effect, “is no longer in dispute,” said Baake.
Baake said the EPA “acknowledged the mistake” in not requiring El Paso to cut back on greenhouse gas emissions and will likely now review El Paso’s air pollution.
A spokesperson for the EPA said the agency “does not comment on pending litigation” and did not respond to a follow-up email asking whether the agency will now review El Paso’s ozone designation.
A spokesperson for Texas Attorney General Ken Paxton did not respond to emails from The New Mexican.
Ozone is the main component of smog and forms from a mixture of carbon monoxide, sulfur oxides, nitrogen oxides and lead — common byproducts from traffic, industrial production and coal-fired power plants.
According to the American Lung Association, ozone causes respiratory harm, including worsened asthma, chronic obstructive pulmonary disease, emphysema and chronic bronchitis. It is also likely to cause early death, heart attacks, strokes, heart disease, congestive heart failure and harm to the central nervous and reproductive systems, in addition to developmental harm.
El Paso and Juárez are in the same “air basin” as Sunland Park, said Dave DuBois, a professor of environmental science at New Mexico State University and the state’s climatologist. The mountains, river valleys and moisture from the Gulf of Mexico and Gulf of California conspire to push air and smog from northern Mexico and West Texas into New Mexico.
Although Texas, the El Paso Chamber of Commerce and the El Paso Electric Company intervened in the court case, arguing that El Paso should not be listed as violating federal ozone standards, the state of New Mexico did not become involved in the court case on behalf of Sunland Park.
When asked why, New Mexico Environment Department’s air quality chief, Liz Bisbey-Kuehn, said the federal Clean Air Act does not require that the state involve itself.
Bisbey-Kuehn said the EPA is required to conduct a “good neighbor” analysis, looking at how neighboring communities might impact areas that fail to meet the agency’s ozone limit.
She said “it is extremely important to us” that the EPA conduct that analysis and determine Texas’ responsibility. That effort began in 2018. There is no deadline.
Environment Department spokeswoman Maddy Hayden said the state has the option to sue the EPA if it does not act in a timely manner.
The department is not fighting the existing EPA ozone designation for Sunland Park, however. New Mexico is still required to submit a plan to the EPA by May 2021 on how it will reduce ozone in Doña Ana County. The largest and only source of nitrogen oxide — often found in ozone — there is the Rio Grande Generating Station, according to the Environment Department’s 2016 ozone report.
Although the El Paso matter may now be determined by the agency internally, the broader consolidated case in D.C. Circuit Court of Appeals could set a precedent for how the EPA draws future ozone attainment boundaries in New Mexico and the nation at large.
For example, the case could set a precedent on whether emissions from nearby hydraulic fracturing wells would be included in ozone monitoring boundaries, including in Carlsbad, which Baake said is close to breaking the federal emission limit.
Parts of San Juan County, where the aging, coal-fired San Juan Generating Station produces power, are also close to exceeding ozone standards, state data shows.
