Gorge Commission’s air study upheld in Oregon court ruling

The Oregon Court of Appeals affirmed the Columbia River Gorge Commission’s Regional Air Quality Strategy for the Columbia River Gorge National Scenic Area on June 19, rejecting a Friends of the Columbia Gorge challenge that claimed it neither provided enough remedies, nor even constituted a strategy.

The court affirmed the commission’s approach on both counts, rejecting the challenge.

The plan resulted from a decade-long collaborative effort involving the Oregon Department of Environmental Quality, the Southwest Washington Clean Air Agency and stakeholders including tribes and Gorge communities. In essence, it relies on the Gorge’s proximity to two Class 1 airsheds, the Mt. Hood and Gifford Pinchot national forests, which, under federal law, require added measures to control atmospheric haze.

“In 2000, Gorge communities asked the commission to rewrite the policy because the Gorge did not qualify as a Class 1 airshed, and the commission requested that the states study and write a regional air quality strategy for the Gorge,” said Carl McNew, Gorge commission chair, in a Gorge Commission statement.

In his brief, the commission’s counsel, Jeff Litwak, noted that the state’s innovative, collaborative work was recognized in several peer-reviewed scientific journals.

“This is another step in the right direction — the Gorge Air Quality Strategy gives us a solid base for measuring air quality over time,” said Darren Nichols, the commission’s executive director. “The commission is also working with other agencies to improve scientific analysis and modeling for other Gorge resources.”

The Friends argued the strategy should include more Gorge-specific regulation. Oregon and Washington air quality scientists, however, emphasized the importance of a regional approach focused on clean air with the Gorge in conjunction with the air surrounding the Gorge.

The court agreed with the regional approach, noting that the plan requires the air agencies to “assess improvements in visibility every five years when the Regional Haze Plan is updated,” and compare the improvement trend in the Gorge to the improvement trend in nearby Mt. Hood and Mt. Adams wilderness areas.

The air agencies contend that existing control measures will “provide a path forward for continued visibility improvement over time.” If the expected outcomes don’t occur, the agencies are charged with investigating the reasons and consulting with the Gorge commission on possible remedies.

“Thus, the Columbia River Gorge Air Study and Strategy sets forth a goal (“continued improvement” in visibility), a framework for achieving the goal (compliance with existing pollution control measures…), criteria by which to determine whether the goal has been met (continued monitoring), and a contingent plan in the event the goal is not met (further consultation…),” the court wrote.

“Given those features we are not persuaded by petitioner’s contention that the [strategy] was not actually a ‘regional air quality strategy’ within the meaning of the management plan.

“The problem is that the petitioner proceeds to load [the definition of strategy] with additional freight,” the court wrote. “Petitioner argues that an air quality strategy must do more than rely on pre-existing framework like the Regional Haze Program … Simply put, those requirements do not appear, explicitly or implicitly, anywhere in the management plan or the Scenic Area.”

The Friends also contended that the strategy failed to carry out requirements of the Scenic Area Act to protect and enhance air quality or Gorge resources, focusing exclusively on visibility.

“The regional air quality strategy explicitly addresses public health concerns (particulate matter and ozone standards) and ecological effects,” the court responded, “including excess deposits of nitrogen and acid. But, rather than addressing those issues separately, the air agencies used visibility as a surrogate for other pollution issues.”

Wasco County’s Gorge commission representative, Rodger Nichols, was supportive of the court’s decision.

“The CaHaGo (Causes of Haze in the Gorge) study showed that the major sources of air pollution in the Gorge — vehicle emissions from the Portland metro area and emissions from the coal-fired plant in Boardman — are located outside the National Scenic Area and thus outside the Gorge commission jurisdiction,” Nichols said.

“The only way to deal with this is on a regional basis. Strategies already in place by the air quality agencies in Oregon and Washington monitor and set goals for the Mt. Hood and Mt. Adams Class 1 airsheds that surround the National Scenic Area. They are doing that job.”

Regional Haze Plan requirements were instrumental in obtaining the 2010 agreement from Portland General Electric to end the use of coal at its Boardman plant by 2020. In the interim, the private Portland utility has installed new emission controls at the plant and will install more by 2014.

The Court of Appeals decision is online at http://bit.ly/15qnbmE.

Editor’s Note: In an update to the story, The Dalles Chronicle noted that comment was received from Friends of the Columbia Gorge. The newspaper reported that the organization wasn’t sure if it would “pursue further legal remedies,” but Friends Conservation Director Michael Lang asserted that the Gorge Commission is shirking its duty and needs to do more to protect air quality.

“The court can’t make them do it,” Lang said, “but the Gorge Commission ought to be concerned about the air quality for the people in the Gorge. They ought to be sure their scenic resources are protected. That’s what they’re there for and they’re not doing their job. What happens if all the coal-exporting proposals are approved?”

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