Lavoile – Winter 2024

Sierra Club, the EPA, and the Fight over Detroit’s Air

Gio Lavoile

In May of 2023, the Environmental Protection Agency (EPA) finalized a clean data determination for the metro Detroit area[1] and determined that the area had achieved attainment status in accordance with the 2015 8-hour National Ambient Air Quality Standard (NAAQS) for ozone. This means that the air quality in the area meets the requirements laid out in the Clean Air Act (CAA).[2] The area in question, which consists of Livingston, Macomb, Monroe, Oakland, St. Clair, Washtenaw, and Wayne counties, was, in 2015, determined to be a nonattainment zone in accordance with the ozone level requirements.[3] While this development would be great news in theory, many environmental justice and health advocates are not only voicing their displeasure with the determination but have taken to court to combat the EPA’s determination because of deep flaws in the attainment status determination process.[4]

The Sierra Club and the Great Lakes Environmental Law Center (GLELC) challenged the EPA’s attainment status determination in the United States Sixth Circuit Court of Appeals in accordance with the Clean Air Act’s judicial review policy.[5] The Sierra Club and GLELC believe the determination was premature and will lead to significant health and safety repercussions[6] because the removal of the nonattainment designations lifts the state’s obligation to enact ozone reduction plans.[7] In the case, the groups claim that the Michigan Department of Environment, Great Lakes, and Energy (EGLE) and the EPA failed to show that the air quality in Detroit was clean enough to meet federal air quality standards for two main reasons.[8] They first allege that the state and EPA failed to demonstrate how improvements of air quality came from “permanent and enforceable”[9] emissions reductions. They note that during the application process the EPA relied on data from years where air pollution was depressed because of Covid-19.[10]

The Sierra Club’s second allegation is that the EPA wrongfully approved an exceptional event application submitted by EGLE. An exceptional event application allows a state to apply to the EPA for the omission of data from the air-quality standard determination process that arose during “exceptional events”.[11] In this case, EGLE applied to have the agency exclude ozone air quality data for two days in 2022 on the grounds that wildfires in Canada had contributed to the high ozone levels recorded.[12] The Sierra Club and GLELC have argued that “[b]oth the state and the EPA have a very high bar to meet when they’re deciding whether or not to ignore data from certain days.”[13]

The EPA, in their approval of the exceptional event application, acknowledged that “natural wildfires are not reasonably controllable or preventable” and identified “a clear causal relationship between the wildfires and the monitored smog values.”[14] EGLE spokesman, Hugh McDiarmid, stated that “the EPA’s decision to redesignate southeast Michigan to attainment for ozone was consistent with sound science and the process outlined by the Clean Air Act” and added that “EGLE’s commitment to continuing air quality improvements in southeast Michigan and across the state has not changed.”[15]

However, there are several potential issues with the use of the exceptional events application. A Michigan regulator referred to the exceptional events determination which secured the attainment status for the state as a “magic wand, one which is waved regularly.”[16] An investigation by California Newsroom, MuckRock, and The Guardian found that state and local air quality managers across the U.S “increasingly rely on the rule to meet air quality goals because of wildfires.”[17] The EPA objects to the exceptional events rule being deemed a loophole of any kind as it “delegitimizes the process established by Congress in the Clean Air Act and implemented by the EPA.”[18] Nicholas Leonard of GLELC, contends that Michigan regulators rely on exceptional event applications because they “don’t want to enact more stringent regulations on some of the major industries in the area, many of which are auto-assembly plants and a very powerful political force in Michigan and nationally.”[19]

The EPA determination also came as Detroit faced its worst ozone year in a decade.[20] While EGLE provided a contingency plan outlining how they intend to maintain air quality for the next twenty years  in conjunction with their request to the EPA to remove the Detroit area from ozone nonattainment,[21] there are concerns with the contingency plan’s effectiveness, due to its protracted timeline and open-ended requirements.[22] In a petitioner’s brief filed after their initial petition to review the EPA’s decision, Sierra Club and GLELC argue that before the EPA can grant a state request to lift nonattainment status, it must determine that the area satisfies the five requirements listed in 42 U.S.C § 7407 (d)(3)(E). [23] Here, they claim, the first, third, and fifth of those requirements were not met.[24]

Other groups are joining in the challenge against EPA’s attainment decision. A coalition of health, community, and science policy advocates filed an amicus curiae brief in support of Sierra Club. They argue that the EPA failed to meet their core purpose “to protect and enhance the quality of the nation’s air resources so as to promote the public health,”[25] by deciding to ignore periods of high air pollution as part of the decisions to reclassify the Detroit as reaching attainment status.[26] A separate brief filed by Michigan clinicians and public health advocates allege that the EPA’s “arbitrary” approval “rests on a deficient analysis of public health and environmental justice.”[27] The brief goes on to state that “these errors are emblematic of EPA and EGLE’s rush to redesignate the Detroit area to attainment and loosen restrictions on ozone-creating pollution sources without proper consideration of the impact on residents who must actually breathe the air.”[28]

Yet, the issues raised by the Sierra Club and its allies regarding the attainment decision reflect real air pollution issues in the Detroit area. Groups opposing the attainment zone are adamant that the decision by the EPA and EGLE will be especially detrimental to low-income, minority communities, particularly those near waste facilities.[29] The October 2023 report by The Guardian discussed the impact of these sort of determinations on low-income communities in the Detroit area.[30] The report showed how low-income residents like Robert Shobe, who suffers from Chronic Obstructive Pulmonary Disease (COPD), a condition which is flared up by smog, are forced to bear the brunt of the poor air quality.[31] Shobe and those in similar positions cannot understand the statements made by the EPA and EGLE, given the reality they experience every day. “I’m a throwaway. I’m in a sacrifice zone,” Shobe told The Guardian.[32] “We complain, we file complaints, we’re doing everything we can to fight for ourselves, and they hide behind loopholes.”[33]

Ultimately, it remains to be seen how the court will rule on the matter. The case is still in the early stages, as the petition for review of the agency decision in the Court of Appeals is the initial step. Regardless, a ruling in favor of the Sierra Club and its allies could bring the efficacy of the exceptional events determination further into question as well as create further obstacles for the state as it aims to avoid vehicle emission testing in the future.[34]

[1] Fact Sheet: EPA to Finalize 2015 Ozone Standard Clean Data Determination for the Detroit Metro Area, U.S. Environmental Protection Agency (May 19, 2023),threshold%20for%20an%20attainment%20determination (“The Clean Data Policy states that EPA can waive certain requirements of the Clean Air Act for designated nonattainment areas where air monitoring data shows the relevant NAAQS have been achieved”).

[2] US EPA Nonattainment Areas and Designations, U.S. Environmental Protection Agency (2023), (“A designation is the term EPA uses to describe the air quality in a given area for any of the six common air pollutants (criteria pollutants). After EPA establishes or revises a primary and/or secondary National Ambient Air Quality Standard (NAAQS), the Clean Air Act requires EPA to designate areas as “attainment” (meeting), “nonattainment” (not meeting), or “unclassifiable” (insufficient data) after monitoring data is collected by state, local and tribal governments.”)

[3] Fact Sheet, supra note 1.

[4] Carol Thompson, Group sues EPA to toss Detroit area’s pollution compliance, The Detroit News (July 18, 2023, 7:42 PM), 

[5] 42 U.S.C. § 7607(B) (1990) (“A petition for review of the Administrator’s action in approving or promulgating any implementation plan…any order… or revising regulations for enhanced monitoring and compliance certification programs… or any other final action of the Administrator under this chapter… which is locally or regionally applicable may be filed only in the United States Court of Appeals for the appropriate circuit”).

[6] Kyle Davidson, Clinicians back lawsuit challenging EPA decision to weaken Detroit ozone standards, Michigan Advance (Jan. 19, 2024, 3:41 AM), (“Smog, or ground-level ozone, is a ‘harmful pollutant which can exacerbate lung conditions including asthma and chronic obstructive pulmonary disease. It is formed when pollution from cars, industrial boilers, refineries, chemical plants, and other sources react in the presence of sunlight.’”).

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Thompson, supra note 4.

[12] Fact Sheet, supra note 1.

[13] Thompson, supra note 4.

[14] Fact Sheet, supra note 1.

[15] Thompson, supra note 4.

[16] Molly Peterson et al., In Detroit, a ‘magic wand’ makes dirty air look clean – and lets polluters off the hook, The Guardian (Oct. 17, 2023, 6:00 AM),

[17] Id.

[18] Id.

[19] Id.

[20] Nina Ignaczak, Metro Detroit’s worst ozone year in a decade sparks Sierra Club lawsuit against EPA, Planet Detroit (July 20, 2023),

[21] Id. (“EGLE’s request to EPA to remove metro Detroit from ozone nonattainment includes a contingency plan outlining how the agency will maintain air quality for the next 20 years. If ongoing monitoring reveals ozone levels exceeding regulatory criteria, EGLE must select and implement additional control measures within 18 months. Potential contingency measures include more stringent control technology for existing pollution sources, alternative fuel and diesel retrofit programs for fleet vehicle operations, and traffic flow and transit improvements, among a list of other items.”).

[22] Id.

[23] Brief of Petitioner at 17-21, Sierra Club v. U.S. Env’t Prot. Agency (Nos. 23-3581, 23-3583) (filed July 17, 2023), 2024 WL 184675, at *30-31.

[24] Id. (“These [issues] require that the area has attained the standard, that the improvements in air quality is due to permanent and enforceable reductions in pollution resulting from federal and state requirements, and that the State ‘has met all requirements applicable to the area’”).

[25] 42 U.S.C. § 7401(b)(1) (1990).

[26] Brief for Detroit Hamtramck Coalition for Advancing Healthy Environments, Eastside Community Network, and Science Policy Network-Detroit as Amicus Curiae Supporting Petitioner at 11, Sierra Club v. U.S. Env’t Prot. Agency (Nos. 23-3581, 23-3583) (filed July 17, 2023), 2024 WL 308817, at *11.

[27] Brief of Amici Curiae Michigan Clinicians for Climate Action and MI Air MI Health in Support of Petitioner at 9, Sierra Club v. U.S. Env’t Prot. Agency (Nos. 23-3581, 23-3583) (filed July 17, 2023), 2024 WL 287300, at *19.

[28] Id. at 9.

[29] Thompson, supra note 4 (“The state considers the census tracts surrounding the East Seven Mile air monitor to experience among the highest levels of environmental injustice in the state, according to the current draft of its online MiEJSCREEN tool. That means the communities experience high pollution burdens and are vulnerable to pollution because of characteristics such as low average household incomes, health issues, proximity to waste facilities and largely minority populations.”).

[30] Peterson, supra note 16.

[31] Id.

[32] Id.

[33] Id.

[34] Carol Thompson, Detroit area avoids vehicle emission testing after EPA’s ozone finding, The Detroit News (May 16, 2023,7:51 PM), (“Michigan has been under federal oversight because of unsafe ozone pollution levels since 2018. The EPA’s determination allows the state to toss plans for a vehicle emissions testing program, something it hadn’t done in decades.”).

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