Legal & Regulatory

New York and Connecticut Renew Interstate Smog Fight in New Lawsuit

New York and Connecticut on January 17 filed suit to force the Environmental Protection Agency (EPA) to curb ground-level ozone blowing in from Illinois, Michigan, Pennsylvania, Virginia, and West Virginia with federal implementation plans (FIPs) issued under the “Good Neighbor Provision” of the 2008 National Ambient Air Quality Standards (NAAQS).

The two states allege in their complaint for declaratory and injunctive relief filed at the U.S. District Court, Southern District of New York that the EPA failed to issue FIPs for the “upwind” states as required by law by August 2017.

New York and Connecticut suffer harm from the delay in addressing the interstate transport of air pollution from sources in the upwind states, they claimed. “Sources of air pollution in each of the Upwind States significantly contribute to nonattainment of the 2008 ozone NAAQS, and/or significantly interfere with maintenance of the same, in the plaintiff states, to the detriment of the health and welfare of their citizens and residents,” the complaint says.

In early December, New York also led a coalition of 15 attorneys general in suing the EPA over its failure to designate areas of the country not meeting federal health standards for smog. Later that month, nine northeastern states—Delaware, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, Pennsylvania, Rhode Island, and Vermont, along with New York and Connecticut—filed a separate suit to force the agency to slash emissions of nitrogen oxides (NOx) and volatile organic compounds (VOCs) blowing in from power plants and other sources in nine “upwind” Midwestern and Southern states. That case seeks to force the EPA to add nine upwind states (Illinois, Indiana, Kentucky, Michigan, North Carolina, Ohio, Tennessee, Virginia, and West Virginia) to the Ozone Transport Region.

The new suit filed on Wednesday stems from a July 2015 EPA notice that found 24 states, including the upwind states, had failed to file state implementation plans to satisfy their obligations under the Good Neighbor Provision. The EPA hadn’t corrected this deficiency, New York and Connecticut said in their complaint.

The EPA has said that its “ongoing implementation of the ‘good neighbor’ provision through updates to the Cross State Air Pollution Rule [CSAPR], and the emission reductions achieved pursuant to federal and state programs promulgated pursuant to these and other [Clean Air Act] authorities,” have improved air quality throughout the nation.”

However, the two states argued in their complaint that while the EPA finalized partial FIPs for several states with respect to CSAPR update, the EPA has acknowledged that the rule constituted “only a partial remedy for interstate transport of pollution.”

The complaint also claims the EPA has failed to specifically identify the sources of air pollution in the upwind states that are significantly contributing to nonattainment in, or otherwise interfering with maintenance of the 2008 ozone NAAQS in New York and Connecticut. It has also failed to establish the required level of pollution abatement to address interstate transport pollution.

The lawsuit comes on the heels of a similar case filed by New York to force the EPA to issue a FIP for Kentucky’s Good Neighbor provision obligations under the 2008 ozone standard. In May 2017, a federal court denied an EPA request for an additional 20-month delay in issuing the FIP and ordered EPA to act by June 30, 2018.


—Sonal Patel is a POWER associate editor (@sonalcpatel, @POWERmagazine)



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