NEW ORLEANS (CN) — Attorneys for Texas, Louisiana and Mississippi argued for two and a half hours Monday before a three-judge panel at the federal appeals court against the U.S. Environmental Protection Agency’s “good neighbor” rule.
Enacted in March, the rule targets 22 states to reduce air pollution that, according to the EPA, hinders the ability of downwind states to meet the agency's air quality standard for ground-level ozone.
Each of the three states argued its emissions don’t exceed the standard set by the agency, yet the agency rejected its proposals under the “good neighbor” rule and is attempting to enforce its own plan.
Attorneys for EPA meanwhile say states that opt for their own plans, instead of the federal agency's proposal, must implement a strategy for reducing emissions — something the three states haven't done.
Under the Clean Air Act, the EPA must review its interstate pollution rule governing ozone every five years to protect public health and welfare.
“Ozone pollution is a collective problem,” attorney Sarah Izfar who argued on behalf of EPA, told the Fifth Circuit judges during Monday's hearing. “That’s what we’re grappling with here.”
Izfar said ozone travels hundreds of thousands of miles. Ozone from Texas, for example, is likely to end up in Colorado, while ozone from Mississippi and Louisiana drifts toward Houston, Dallas Fort-Worth and Galveston.
Jeffrey Hall, arguing on behalf of Louisiana Department of Environmental Quality, told the judges the EPA “completely ignored" Louisiana’s internally collected data and fact-finding — "even more than other states" — as it applied to the good neighbor rule.
He said there was no reason for the agency to “undermine Louisiana’s work” on a solution under the rule, but the agency ignored the state's conclusions on the amount of pollution it is emitting; for instance, that ozone would affect places outside the state only 10% of the time, with those emissions coming only from southern Louisiana.
Instead of accepting Louisiana’s report, Hall said, the agency “rested on the notion there were technical flaws.”
U.S. Circuit Judge Carl Stewart, an appointee of Bill Clinton, said it had seemed to him that the EPA reviewed Louisiana's plan, and told the state what it found. He clarified Hall's argument on Monday: “What I’m hearing now from you is that the agency never replied to your state’s plan — that there’s nothing in the record.”
Attorney Maureen Harbourt, who represents Louisiana oil and gas companies challenging the law, told the judges that even though ozone across Louisiana has declined statewide in the last decade, EPA rules against ozone in the Pelican State have ramped up.
Another EPA attorney offered an explanation for states seeing declining ozone emissions in contrast to EPA data: "They looked at their emissions in a vacuum," said Jin Hyung Lee.
“EPA made very clear that if states are linked, they need to consider the whole,” Lee said, meaning states must factor in the emissions from their states that have crossed into others.
Instead, Lee argued, the three states’ plans, rather than propose any regulatory oversight, set out simply to prove the states weren't emitting too many pollutants. The data Texas and Louisiana supplied to the EPA don't support the data provided to the agency.
Additionally, Lee said, Louisiana’s own maps account for a trajectory of ozone pollution from Louisiana to Houston and Dallas Fort-Worth that the state doesn’t otherwise factor in. "It’s entirely possible that Louisiana does have clean air, if their emissions are traveling to Houston and Dallas-Fort Worth,” Lee said.
Judge Stewart put the argument into his own words: “You get to grade your own paper and you give yourself a pass.”
“Your numbers are good,” he said, “but your determinations of significant impact aren’t taking into consideration your overall numbers — only their effect on the state, and not their ultimate effect.”
Attorney Scott Stewart, arguing for Mississippi, said the whole region is naturally going to emit more ozone during the extreme heat of summer and argued that trying to force the three states to uphold the strict limits set for other states is a flaw in “the federalism of the Clean Air Act."
Lee said Monday that as long as the states have a plan that limits their emissions, they have the freedom to choose how their emissions are slashed, but as it is, “every state that submitted a plan said, 'We are not contributing significantly, so we don’t need a plan.'”
U.S. District Judge Karen Anne Gren Sholer, who sits on U.S. District Court for the Northern District of Texas and is a visiting circuit judge this week, chimed in: “Their overarching argument seems to be that, on the whole, there is a problem.”
“Each state says, 'We’re not the problem,'” the Trump-appointed judge said. “But there is a problem.”
Rounding out the panel was Chief U.S. District Judge Priscilla Richman, who was appointed by George W. Bush.
The judges did not say when they will rule on the case.
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