EPA Sued Over Continued Disregard Of Smog Pollution

Published on January 16, 2020, 5:18 pm
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Attorney General Letitia James today announced a lawsuit against the Trump Administration’s Environmental Protection Agency (EPA) for continuing to ignore its legal responsibility under the Clean Air Act to control upwind sources of pollution that create unhealthy ground-level ozone (commonly known as smog) in New York.

The lawsuit, filed in the U.S. District Court for the Southern District of New York, follows an October 01, 2019 ruling by the U.S. Court of Appeals for the District of Columbia Circuit in which the Court agreed with New York and other downwind states that EPA erred in issuing a regulation that rejected the need for upwind sources to cut their emissions of smog-forming pollution that blows into New York and other downwind states.

“More than two-thirds of New Yorkers regularly breathe unhealthy air, yet the Trump Administration continues to ignore the smog caused by upwind air pollution,” said Attorney General James. “We will not allow the federal government to trivialize the law, and minimalize the importance of clean air for millions of New Yorkers. My office will use every legal tool available to ensure that EPA follows the law and takes significant measures to reduce pollution.”

Attorney General James’ suit filed today argues that the D.C. Circuit ruling in October means that the Trump EPA is now violating a prior decision by the U.S. District Court for the Southern District of New York that imposed a December 06, 2018 deadline for the agency to comply with its statutory obligation to put plans into place to stem these pollution emissions. However, since the D.C. Circuit’s ruling, EPA has announced no plans to comply with this statutory obligation; in fact, the Trump Administration’s regulatory agenda for the Agency fails to list any action to address interstate transport of smog pollution in the foreseeable future.

On the worst air quality days this past summer, nearly 13 million New Yorkers – over 65 percent of the state’s population – breathed air with unhealthy levels of smog. Nine New York counties are currently considered by the EPA to be out of compliance with federal health standards for smog. According to an American Lung Association analysis of 2015-2017 air quality data, millions of New Yorkers with lung disease – including nearly 250,000 children and almost 1,000,000 adults suffering from asthma – are at special risk by living in smog-polluted areas of the state. The Association ranks New York City as the tenth most polluted city in the nation for smog.

Joining Attorney General James in today’s lawsuit is the Attorney General of Connecticut.

In a related development, on Tuesday, Attorney General James filed initial briefs in her lawsuit challenging the Trump EPA’s denial of a New York’s petition for the Agency to act on its legal responsibility under section 126 of the Clean Air Act to ensure the control of upwind power plants, factories, motor vehicles, and other sources that contribute to New York’s nonattainment of federal air quality standards. The petition asked EPA to make a finding that the emissions of approximately 350 sources of smog pollution in upwind states are violating the “good neighbor” provision of the Clean Air Act and, upon making such a finding, ensure that emissions from these sources are reduced as necessary to allow New York to attain and maintain health standards for smog.

Background on New York and National Air Quality Regulations

Reducing smog levels is vital to protecting the health of New Yorkers. Elevated levels of smog can cause a host of significant health effects, including coughing, throat irritation, lung tissue damage, and the aggravation of existing medical conditions, such as asthma, bronchitis, heart disease, and emphysema. Exposure to ozone is also linked to premature mortality. Children, the elderly, and those with existing lung diseases, such as asthma, are more vulnerable to ozone’s harmful effects.

New York has some of the strictest air quality regulations in the country. The emissions of the pollutants that cause smog—such as nitrogen oxides (NOx) and volatile organic compounds (VOCs)—are aggressively regulated from power plants, factories, motor vehicles, and other sources within the state. In fact, New York has among the lowest emissions of NOx and VOCs in the country. Because of their regulation, major stationary sources in New York reduced annual NOx emissions by 43 percent between 2008 and 2014, and major power plants in the state reduced ozone-season NOx emissions by 73 percent between 2008 and 2017.  

Smog precursors, such as NOx emitted from power plants and other sources, can travel hundreds of miles after they are emitted. The federal Clean Air Act recognizes the regional nature of smog, and that emission sources located in multiple upwind states contribute to downwind states’ smog problems. Because downwind states cannot solve their smog problems on their own, the “Good Neighbor” provision of the Clean Air Act requires the EPA to step in and adopt plans to reduce interstate smog pollution when the actions of upwind states are not sufficient to ensure that federal smog health standards can be met and sustained in downwind states like New York.

EPA’s obligation under the Act to adopt such plans – known as “Federal Implementation Plans” or “FIPs” – reflects the Agency’s unique position and authority, as a federal agency, to ensure that the individual efforts of multiple upwind states will be enough, in aggregate, to solve regional air pollution problems, such as smog. 

This matter is being handled for the Attorney General’s Environmental Protection Bureau by Assistant Attorney General Claiborne E. Walthall, Project Attorney Benjamin Cole, Affirmative Section Chief Morgan A. Costello, and Senior Counsel Michael J. Myers, under the supervision of Bureau Chief Lemuel M. Srolovic. The Environmental Protection Bureau is part of the Division of Social Justice, led by Chief Deputy Attorney General Meghan Faux, all under the oversight of First Deputy Attorney General Jennifer Levy.

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