DC Circuit Rejects Bid to Revamp Ozone Regulation

WASHINGTON (CN) – The D.C. Circuit on Tuesday tossed aside a challenge from a group of Northeastern states looking to force the Environmental Protection Agency to sweep neighboring states into a regional ozone regulation system.

Smog in New York City as viewed from the World Trade Center in 1988. (Photo via Centers for Disease Control and Prevention)

A group of states in 2013 asked the EPA to expand the Northeast Ozone Transport Region to include a handful of upwind states, bringing them under the same mandatory ozone pollution control requirements as the 13 original subjects of the pact.

The region was first established in 1990 as part of changes made to the Clean Air Act and includes every state in New England as well as New York, Pennsylvania, New Jersey, Delaware, Maryland, Washington, D.C., and parts of Virginia.

Ground-level ozone is also called smog, which is created when pollutants from cars and other sources react in the atmosphere to sunlight.

Saying pollutants coming from other regions of the country were harming their air quality, the states in the region proposed to add Illinois, Indiana, Kentucky, Michigan, North Carolina, Ohio, Tennessee, West Virginia and the parts of Virginia that were left out of the original regulations.

In 2017, the EPA denied the states’ request to expand the ozone control requirements, saying it would instead rely on other clean air laws to keep those upwind states in line. Led by New York, eight states asked the D.C. Circuit to overturn the agency’s decision.

But on Tuesday, Senior U.S. Circuit Judge Raymond Randolph said the law under which the EPA created the region is very clear that the agency does not need to sweep in new states whenever the region’s members ask it to.

Even if the member states were to show that pollution from their neighbors “significantly contributes to a violation” of the region’s air quality standards, the EPA still has significant discretion over whether to expand the region, Randolph wrote for a unanimous three-judge panel.

Randolph also wrote the states have other methods of forcing the EPA to take action on pollutants and that the agency appropriately considered any burden not expanding the region would put on the downwind states.

“EPA’s denial of the states’ petition complied with the Clean Air Act and was a reasonable exercise of the agency’s discretion,” the 12-page opinion states.

An EPA spokesperson said in a statement Tuesday that the agency is “pleased that the court ruled in our favor.”

The New York attorney general’s office did not immediately return a request for comment on the decision.

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