Panel Holds EPA Must Address Complaints of Cross-Border Pollution

(CN) — The D.C. Circuit ruled Tuesday that the Environmental Protection Agency did not have authority to ignore New York and New Jersey’s petition asking it to crack down on air polluters in neighboring states. 

The three-judge panel said the EPA failed to explain why the states’ 2018 petition to place emission controls on 350 power plants outside New York and New Jersey had been denied.

U.S. Circuit Judge Patricia Millett, a Barack Obama appointee, penned the unanimous ruling, writing the EPA “offered insufficient reasoning” for its denial of the petition seeking regulation of upwind polluters in Illinois, Indiana, Kentucky, Maryland, Michigan, Ohio, Pennsylvania, Virginia and West Virginia, who New York says hamper its compliance with national ozone standards.

The petition claimed that all three states in the multistate New York Metropolitan Area — New York, New Jersey and Connecticut — have not been able to meet their emissions reductions requirements for the 2008 National Ambient Air Quality Standards or the stricter 2015 standards, lobbing the blame at out-of-state polluters.

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

“The EPA failed to provide a reasoned explanation for why…the petition failed to show that the named sources contributed significantly to downwind nonattainment,” Millett wrote. “The EPA’s test, at best, was a moving target and, at worst, demanded likely unattainable standards of proof.”

The court also rejected the EPA’s conclusion that the New York Metropolitan Area did not have a cognizable air quality problem under the 2008 NAAQS because it “relied on two faulty interpretations of the Clean Air Act that have since been invalidated,” according to the ruling. 

While the panel did not impose a formal deadline on the EPA for when it must respond to the petition, the judges said they expect the agency to act promptly.

The states filed suit over the denied petition in October last year. The D.C. Circuit heard oral arguments in the case remotely in May.  

At the hearing, EPA attorney Samara Spence said the agency denied the petition because New York failed to provide specified cost-effectiveness analyses for each plant for which it sought increased regulations. State attorneys argued it would be impossible for New York and New Jersey to get specific data from polluters. 

Millett addressed this argument in Tuesday’s ruling, saying the EPA failed to explain “how states are supposed to obtain the required detailed and technically particularized internal information from some unknown number of unnamed and unidentified sources.”

“Those analyses—especially determining the emission reductions that would result from installing a particular control technology on each emitting unit—would require detailed and intricate inside knowledge of each facility’s equipment and operations. Such information is frequently not publicly available,” she wrote.

Environmental Defense Fund attorney Liana James, representing one of several conservation groups who intervened in the case, called the ruling a big win for the state of New York and all Americans who live in downwind states affected by air pollution.

“The New York Metropolitan Area is currently not in attainment with either the 2008 or the 2015 ozone standards,” James said in a phone interview Tuesday. “And New York, because it gets so much pollution from downwind sources, needs help from the EPA, in order to meet those standards — the state simply can’t do it all on its own.”

The EPA could help by better regulating air pollution within the power plant sector, the oil and gas industry and the industrial sector, James said.  

“That could be…requiring these sources to run already installed pollution controls more efficiently, it could be adding pollution controls to the sources, or a number of various other options, all that will result in lower pollution coming from the specific sources that New York names,” she said.

Millett was joined on the panel by U.S. Circuit Judges Sri Srinivasan, a Barack Obama appointee, and Thomas Griffith, a George W. Bush appointee.

Griffith wrote in a concurring opinion that New York’s petition was inconsistent with the targeted regulation intended under the Clean Air Act’s so-called good neighbor provision.

“In addition to 130 power plants, the petition covers oil refineries, natural-gas compressor stations, chemical plants, steel and paper mills, waste incinerators, and factories that produce goods ranging from glass to ammunition,” Griffith wrote. “These sources are not united by geography (they range from Illinois to Maryland), plant technology, industry 3 sector, or any other ‘class or category.’ The only feature shared by the sources in New York’s petition is that each emits more than 400 tons of nitrogen oxides per year.” (Parentheses in original.)

“If that’s enough to establish a ‘group,’ the term is all but meaningless,” Griffith added, criticizing the petitioners’ argument that they sufficiently limited their petition by targeting those that produce ozone.

Griffith said he supported the panel’s lack of consideration for those issues “because EPA did not rely on them in its denial of New York’s petition,” but said the agency could enforce restrictions on the scope of future petitions.

According to James, the ideal next step would be for EPA to grant New York and New Jersey’s petition and require some of these large polluters in other states to reduce air pollution and make sure that New York is going to be able to comply with the 2008 ozone standard.

EPA officials did not immediately respond to comment Tuesday. Neither did New York Assistant Attorney General Claiborne Walthall, nor a Sierra Club legal representative.

Referencing a recent study published by Harvard researchers  that linked long-term air pollution exposure to higher rates of death in those who contract Covid-19, Paul Billings, the American Lung Association’s national senior vice president of public policy, said New York and New Jersey’s case is especially important during a pandemic.

“While we have not seen studies specifically looking at ozone pollution…we know that people are very concerned about lung health because of Covid, we know air pollution makes people sick and can lead to premature death and there may be some synergistic effects between air pollution and Covid – all reasons to be even more concerned about air quality than before,” Billings said in a phone call Tuesday.

He noted the petition and ruling called out the EPA for failing to explain why it wouldn’t require upwind sources that are contributing to poorer air quality in New York to clean up.

“Certainly we can’t get to clean air everywhere unless we have sources that are contributing to downwind pollution pulling their weight and cleaning up to improve the air quality for those that are breathing downwind,” he said.

%d bloggers like this: