Arkansas files federal lawsuit against EPA over Arkansas’ rejected ozone plan

The Natural State’s dirty air problems are causing another beef between Gov. Sarah Sanders and the Biden administration.

During a 20-minute news conference at the Oswald Generating Station in Wrightsville, owned by the Arkansas Electric Cooperative Corp., Sanders announced that she asked state Attorney General Tim Griffin to file a federal lawsuit against the Biden administration and the federal Environmental Protection Agency.

According to Sanders and Griffin, the EPA recently rejected the Arkansas Division of Environmental Quality’s so-called State Implementation Plan (SIP) that deals with how Arkansas will address dirty air and haze that impacts visibility at national parks and wilderness areas in Arkansas and downwind states.

Calling the EPA denial “federal overreach,” Sanders complained that Arkansas is already dealing with the impact of “Bideninflation.” She blamed the president for the nation’s already rising energy and consumer prices, which she attributed to reckless federal spending on new and unnecessary government programs.

“Electricity, home heating bills, and groceries – they are all up by double digits,” she said. “Democrats created this problem by lighting trillions of taxpayer dollars on fire, overheating our economy, and saddling our kids with a mountain of debt.”

Offering few details about the EPA lawsuit, Sanders said the Biden administration rejected Arkansas’ SIP plan that was submitted by former ADEQ Director Becky Keogh, who also served as secretary of the Arkansas Department of Energy and Environment under former Gov. Asa Hutchinson.

In 2015, ADEQ first submitted its first SIP to the EPA that addressed Clean Air Act requirements for particulate matter and sulfur dioxide as they relate to the best available retrofit technology for electric generating units, like the natural gas-fired Oswald power plant.

In 2019, the EPA conditionally approved revisions to Arkansas’ clean-air plan for regional haze and withdrew a portion of the Obama-era federal plan that addressed “downwind” dirty-air emissions from Entergy Arkansas coal-fired power plants and factories that cross state lines. In June 2020, EPA’s Dallas office gave final approval to the state’s infrastructure SIP plan following a 30-day public comment period.

Griffin said Sanders’ Department of Energy and Environment is now challenging EPA’s disapproval of Arkansas’s revised SIP that was first approved in 2019. He said the Biden administration rejected the state’s plan without giving Arkansas officials the opportunity to revise it.

“In this particular case, we are on strong [legal] footing,” Griffin said. “The bottom line is this: the Biden administration wants to impose a one-size-fits-all federal implementation plan (FIP) instead of allowing the states the opportunity to tailor their own plans to their specific needs, balancing environmental regulation with economic growth. [That] will cost Arkansas jobs and significantly impact many of our industries, including energy, construction, steel production and manufacturing.”

Under the proposed EPA standards, first introduced to Arkansas officials in 2014, the Obama administration proposed to set the new ozone standards within a range of 65 to 70 parts per billion (ppb), or possibly as low as 60 ppb. According to the rules established by former EPA Director Gina McCarthy, who is now the White House’s first national climate advisor, the benefits of meeting the proposed ozone standards will significantly outweigh the costs.

For example, the EPA estimates the “large health benefits” to be gained by avoiding asthma attacks, heart attacks, missed school days and premature deaths are valued at $6.4 billion to $13 billion annually in 2025 for a standard of 70 ppb, and $19 billion to $38 billion annually in 2025 for a standard of 65 ppb. 

Annual costs are estimated at $3.9 billion in 2025 for a standard of 70 ppb, and $15 billion for a standard at 65 ppb.

In addition, the EPA said that federal programs to reduce air pollution from fuels, vehicles and engines of all sizes, power plants and other industries show that most U.S. counties with monitors would meet the more protective standards by 2025 with the current rules now in place or underway.

Griffin said he believes that the Biden administration wants the EPA’s federal plan to be approved for all 50 states. In February 2022, EPA Administrator Michael Regan signed a revised FIP to assure that the 26 states identified in the proposal do not significantly contribute to problems attaining and maintaining the 2015 Ozone National Ambient Air Quality Standards (NAAQS) in downwind states.

Those revisions would help states fully resolve their Clean Air Act “good neighbor” obligations for the 2015 ozone rules. The EPA is also establishing an allowance-based ozone season trading program with nitrogen oxide emissions budgets for fossil fuel-fired power plants in 25 states, including Arkansas.

On Jan. 31, the EPA disapproved 19 SIP submissions, including Arkansas, and partially approved and partially disapproved 2 SIP submissions addressing the good neighbor provision for the 2015 ozone rules. EPA officials said they rejected those plans to protect air quality in communities affected by harmful smog, noting that those 19 states failed to meet their obligations under the Clean Air Act to protect communities in other states from unhealthy levels of ozone pollution.

Griffin said Arkansas has filed a petition for review under the federal Administrative Procedures Act at the 8th U.S. Circuit Court of Appeals in St. Louis. The state has not yet been assigned a docket number, but Griffin believes Arkansas has a strong case, along with 24 other states whose SIP plans were rejected.

“We believe the Biden administration has acted beyond their authority by moving the goalposts,” he said.