EPA must reconsider Colorado’s decision to ignore fracking pollution in state plan to clean the air

The 10th U.S. Circuit Court of Appeals on Monday told the Environmental Protection Agency to reconsider Colorado’s plan for improving its air quality because the state did not take into account the pollution emitted by drilling and fracking when it considers permits.

The decision comes as Colorado prepares this year to revise an improvement plan after failing another air quality benchmark. The state is now in severe violation of two federal ozone pollution standards, and it must find a way to reduce that pollution or face more penalties.

The Denver-based appellate court’s ruling does not require the EPA to force the state to include stricter pollution permits for the oil and gas industry in its plan. Instead, it asks the federal agency to think about it and explain why the exemption was allowed when the original plan was written in 2019.

“Colorado effectively was amending its rules in its state implementation plan to say it didn’t have to consider drilling and fracking when considering an oil and gas well pad permit,” said Ryan Maher, staff attorney at the Center for Biological Diversity, the environmental group that sued the federal government over the plan. “We are trying to purge the exemption from the state implementation plan.”

The appeals court’s ruling stems from a 2023 lawsuit that challenged what Maher described as a permitting loophole for the oil and gas industry in Colorado. The court’s decision did not put a timeline on the EPA to reconsider the loophole. It will be up to the EPA under President Donald Trump to decide when and how it will comply with the court’s order.

Tenth Circuit Judge Robert Bacharach wrote in the opinion that “the EPA acted arbitrarily and capriciously by failing to address the potential emissions during drilling, fracking and well completion.”

The Colorado Department of Public Health and Environment joined the EPA in defending the lawsuit. The American Petroleum Institute filed an amicus brief in defense of the EPA.

The state health department said it is pleased the 10th Circuit “remanded without vacating the center’s second challenge, giving EPA the opportunity to justify its original approval,” spokesperson Zachary Aedo said Tuesday.

Becky O’Brien, spokesperson for American Petroleum Institute in Colorado, said the industry trade group is “reviewing the ruling and look(s) forward to working with the agency on next steps.”

Colorado’s nine-county northern Front Range is in severe violation of two federal ozone standards. The region, which includes metro Denver, has been in severe violation of a 2008 standard since 2022, and earlier this month, Colorado’s health department sent notice that it would voluntarily ask the EPA to downgrade its compliance with a stricter 2015 standard.

Under the Clean Air Act, states that miss federal air quality benchmarks are required to write plans, known as State Implementation Plans, that outline a path to reduce pollution. The EPA signs off on the plan.

Colorado’s air pollution regulators are almost constantly writing and revising improvement plans because of the state’s two ozone violations. Those plans include strategies such as promoting the use of electric vehicles and lawn-and-garden equipment and regulating emissions from manufacturing facilities.

But Maher said Colorado is too prone to creating loopholes for the oil and gas industry, which accounts for 45% of nitrogen oxide emissions and 41% of volatile organic compound emissions released in the state.

In 2022  the state health department’s Air Pollution Control Division miscalculated nitrogen oxide emissions from drilling and fracking operations by nearly double and had to rewrite a portion of its plan. The plan that was eventually approved was criticized by environmental groups, which said it did not do enough to get the state into compliance with the Clean Air Act.

“The state bemoans its ability to attain so they do things like bump up timelines or regulate lawnmowers,” Maher said. “They’re so reluctant to take on the oil and gas industry.”