Court Gives SE Wisconsin a Reprieve on Federal Smog Regulations
December EPA order says failure to meet ozone standards brings health risks.
The Lake Michigan shore Wednesday, July 23, 2025, in Milwaukee, Wis. Angela Major/WPR
For now, Wisconsin will avoid costly requirements to meet air quality standards for ozone pollution in parts of southeastern Wisconsin under a recent federal appeals court order.
The Seventh Circuit Court of Appeals granted the state’s request to temporarily postpone a rule issued by the Environmental Protection Agency in an order issued Friday. It comes after Wisconsin filed a motion last month saying the rule imposes “costly and burdensome requirements” on the state and businesses.
In December, the EPA issued a final rule that reclassified areas of Milwaukee, Kenosha and Sheboygan counties in “serious nonattainment” of its 2015 ozone standards. The state petitioned for review of the rule in February.
In a statement, Wisconsin Manufacturers & Commerce applauded the court’s order to stay the EPA rule. Scott Manley, executive vice president of government relations for WMC, said the court order provides relief to employers who face “crushing and job-killing ozone regulations.”
“Data from both the (Department of Natural Resources) and EPA indicate that the vast majority of ozone pollution in eastern Wisconsin is caused by emissions originating from outside our state borders,” Manley wrote. “It’s unfair to punish Wisconsin businesses for pollution they didn’t create, and (the) order is the first step toward righting this wrong.”
Ozone pollution, also called smog, often occurs in the summer when air pollutants like nitrogen oxides and volatile organic compounds from industry, power plant or vehicle emissions interact with heat and sunlight.
The DNR previously told WPR that ozone-causing pollutants are carried in the air over Lake Michigan from outside areas, causing shoreline counties in southeastern Wisconsin to have higher levels of ozone pollution. The agency has said Wisconsin sources contribute no more than 10 percent to elevated ozone levels while the rest comes from other states or outside sources.
In 2018, environmental group Clean Wisconsin sued the EPA to force the agency to reclassify southeastern Wisconsin counties as “nonattainment” or failing to meet air quality standards for ozone pollution.
“The fact that southeastern Wisconsin has been reclassified as in serious nonattainment for ozone means that residents of those counties are at higher risk of respiratory and cardiovascular diseases, and Wisconsin should be implementing all possible policies and strategies to reduce ozone pollution to protect public health,” Clean Wisconsin attorney Katie Nekola said in a statement.
Nekola added that the existence of pollution from outside sources doesn’t absolve Wisconsin industries from doing their part to cut back on pollution.
In its motion last month, Wisconsin Attorney General Josh Kaul said reclassifying those areas as seriously failing to meet air quality standards would result in Wisconsin businesses facing strict new requirements.
“This change triggers costly permit requirements, complex regulations, and stringent emissions offset mandates,” Kaul wrote in a court filing.
According to the state’s filing, Wisconsin businesses would be considered major sources of pollution if their facilities produce between 50 and 100 tons per year of nitrogen oxides or volatile organic compounds.
The change would also require the state to revise its plan for complying with national air quality standards under the Clean Air Act by January, “requiring extensive staff time and resources.” The DNR would also have to process more permits, according to the filing.
“This requirement could create $4 million in added costs for Wisconsin, reducing funding for other air quality work,” Kaul wrote.
The DNR also estimated 382 southeastern Wisconsin sources or businesses would need to review their operations to see if they need new or revised permits to meet requirements. The agency estimated businesses could face between $1 million and $6.9 million in costs.
In 2015, the Obama administration created a standard for ozone pollution at 70 parts per billion — a stricter standard than the previous 75 parts per billion threshold. The EPA must designate an area as “nonattainment,” or not meeting the standard, if it has an air quality monitor that exceeds the ozone threshold or if sources contribute to a violation of federal air quality standards.
The EPA took no position on Wisconsin’s request for relief. The stay on the rule will remain in place until the case is resolved.
Wisconsin, businesses get reprieve from strict smog regulations under court order was originally published by Wisconsin Public Radio.
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