States Fight to Force EPA Action on Downwind Pollution

WASHINGTON (CN) — While New York and New Jersey continue to battle Covid-19 as the states worst hit by the deadly outbreak, they appeared to gain ground at the D.C. Circuit on Thursday in a fight to regulate smog carried downwind from neighboring states. 

The Environmental Protection Agency struggled to convince the three-judge panel that it was right to deny a petition to place emission controls on 350 power plants outside New York and New Jersey.

While scientists have linked industrial emissions to novel coronavirus fatalities, EPA Administrator Andrew Wheeler has said the findings do not warrant tougher regulation. 

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

The Trump administration went so far as to waive enforcement on a wide range of public health and environmental protections in March, claiming industries could face difficulties complying during the Covid-19 crisis. Conservation groups sued the agency last month to reverse the temporary policy that waives fines and other civil penalties for lax pollution monitoring. 

But U.S. Circuit Judge Patricia Millett grilled the agency Thursday on why it denied the states’ petition to increase downwind pollution regulations last year. 

The Barack Obama appointee levied question after question on what the agency believed was the necessary burden to warrant clamping down on polluters neighboring the heavily populated states.

“So that’s part of their burden here? Plant by plant by plant, what would happen if you imposed those controls?” Millet said.

EPA attorney Samara Spence argued the government does not know if the power plants can achieve the emission reductions rates the petition proposed, arguing New York provided a statewide average rather than particular cost effectiveness analysis for each plant it sought for the agency to regulate. 

But Chief U.S. Circuit Judge Sri Srinivasan questioned the feasibility of that demand. “The information to make that kind of reticulated analysis, you think that’s all in the arsenal of the petitioning states?” the Obama appointee asked. 

Standing firm on her argument, Spence said the “building blocks” are publicly available to the petitioners.

“They certainly are able to do the modeling to show what the downward impact of the reductions they’re asking for would be,” the EPA attorney added. 

But attorney Steven Wu argued the exact opposite, telling the three judges that it is impossible for New York and New Jersey to obtain specific data from polluters. 

Wu conceded that states carry some burden under the federal statute that allows for regulating interstate pollution by targeting specific sources, rather than levying state-level controls. But the EPA’s role, he argued, is to enforce regional regulations where power plants are not adhering to air quality standards set by the Clean Air Act. 

U.S. Circuit Judge Thomas Griffith countered that the agency claims the petitioners’ demand to regulate 350 power plants is unreasonable.

“You’ve asked for too much,” the George W. Bush appointee said. “I think stick to a group.”

But Wu hit back, saying the EPA placed an improper burden on the petitioners — New Jersey, New York State and New York City — by demanding a “ready-made solution.”

“EPA is claiming the entitlement to deny a petition on the basis of our failure to do again what EPA’s responsibility really should be here,” the states’ attorney argued. 

Sierra Club attorney Joshua Berman, arguing for intervening conservation groups, said the petitioners identified around 130 combustion or steam-powered electric plants monitored by the EPA that have installed, but failed to make use of, equipment that reduces toxic exhaust. 

Spence claimed that the EPA is working to crack down on those out-of-line energy producers with a cap and trade program. 

But the D.C. Circuit struck down the EPA rule on cross-border pollution last year based on predictions that downwind states would satisfy pollution standards by 2023, two years after the statutory deadline in 2021.

“This court recently invalidated the update rule, precisely because it failed to require upwind states to eliminate their significant contributions by the relevant attainment date,” Berman reminded the judges, including Griffith, who was on the panel that issued the remand order last fall.  

But the EPA bucked the argument as off topic.

“Petitioners had their day in court about the federal Good Neighbor plans for the 2008 standard,” Spence said. “It’s on remand and EPA is working on it. It’s not before the court today.”

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