New York Attorney General James today joined a federal lawsuit against the U.S. Environmental Protection Agency (EPA) over its failure to act – despite a court mandate – on the problem of air pollution from upwind states that is fouling New York’s air and preventing the state from achieving compliance with federal Clean Air Act standards.
Filed in U.S. District Court in New York, the lawsuit asks the court to declare EPA in violation of the Clean Air Act for not taking action on the upwind pollution problem affecting New York and other states in the region, and to order the agency to propose and adopt completed federal plans for doing so by specific dates.
“The transport of air pollution from upwind states continues to threaten the health and safety of New Yorkers,” said Attorney General James. “The federal government’s refusal to enforce the Good Neighbor Provision of the Clean Air Act allows the smog caused by upwind air pollution to go unaddressed. My office will continue to use every tool available to compel the EPA to follow the law, and take significant measures to reduce pollution.”
In addition to New York and lead state New Jersey, the states of Connecticut, Delaware, and Massachusetts, along with the City of New York, have joined today’s lawsuit.
Ground-level ozone is a harmful air pollutant formed by the atmospheric reaction of certain ozone “precursors” – most notably nitrogen oxide (NOx) – in the presence of sunlight. Breathing ozone can cause coughing, throat irritation, lung tissue damage, and can aggravate such conditions as asthma, bronchitis, and heart disease.
At issue in the case is upwind pollution migrating into New York – as well as similarly situated states in the northeast – from seven upwind states that is preventing the states from attaining and/or maintaining 2008 ozone National Ambient Air Quality Standards (NAAQS). The upwind states are Illinois, Indiana, Michigan, Ohio, Pennsylvania, Virginia, and West Virginia.
In October 2019, the federal Court of Appeals for the D.C. Circuit vacated an existing EPA remedy to the upwind pollution problem on grounds that it was inadequate and invalid, and held that EPA was essentially in breach of its duty to hold upwind polluter states accountable.
In November 2019, the court ordered EPA to develop and implement a remedy under the “Good Neighbor Provision” of the Clean Air Act. Despite that mandate, EPA has failed to take any action by releasing updated federal implementation plans as required.
The matter is of particular urgency, the suit filed today asserts, because this summer is the last opportunity for our states to demonstrate compliance with the ozone standards before a July 2021 statutory attainment deadline.
“EPA’s failure to take immediate action will prolong harms to the state plaintiffs and the health of our residents from high ozone levels, and foreclose the ability of plaintiff states to demonstrate attainment of the 2008 NAAQs by the July 2021 deadline,” the complaint states.
Although the Clean Air Act requires states to act as “good neighbors” by controlling air pollution that significantly contributes to the air quality problems in other states, many upwind states have taken little or no action to meet their obligations when it comes to NOx.
Under the Clean Air Act, upwind states are required to submit plans that show how they will regulate the sources of air pollution within their borders that contribute to a failure by the downwind states to meet federal clean air standards.
Where states fail to meet that obligation, the Clean Air Act requires EPA to take action to protect downwind states.
Among other things, the agency is required to make a formal finding that offending states have failed to submit Clean-Air-Act-compliant plans, and then – within two years – impose a federal plan to govern the offending emissions from those states.
The law also empowers EPA to step in and set direct limits on ozone-contributing air pollution from specific power plants and other sources of air pollution when host states have failed to do so.