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EPA Gets Partial Win in State Cross-Border Pollution Appeal (2)

May 19, 2020, 5:36 PMUpdated: May 19, 2020, 9:05 PM

The EPA fell short in rejecting a petition from Maryland that sought to improve its air quality from cross-border pollution, but the agency was within its rights to reject the one from Delaware, a federal appeals court ruled Tuesday.

For the most part, the U.S. Court of Appeals for the District of Columbia Circuit’s decision means the Environmental Protection Agency doesn’t have to consider the states’ request to order upwind states such as Pennsylvania to fully use existing catalytic controls to curb power plant releases of nitrogen oxides.

Nitrogen oxides contribute to ground-level ozone, a lung irritant that can worsen breathing conditions such as asthma.

The court agreed with the EPA that Delaware’s own analysis showed the state is already meeting and maintaining the 2008 limit and would meet the more 2015 standard by 2023 without requiring an additional upwind emissions limits on power plants.

However, the D.C. Circuit didn’t buy EPA’s argument that certain non-catalytic controls for nitrogen oxide weren’t cost-effective. The court remanded to the agency that part of Maryland’s petition that sought the use of these controls on four power power plants.

The D.C. Circuit’s detailed analysis of the multi-step process to evaluate these petitions offers a “road map” that petitioners and the EPA can use in the future, said Cheryl Gonzalez, an environmental attorney with the Indianapolis office of Barnes & Thornburg LLP.

“The decision examined and established the burdens petitioning states need demonstrate to sustain a case and identified where EPA’s analysis on several steps was insufficient for a denial,” she said in an email.

The EPA said it was reviewing the ruling to determine next steps.

Rejected Arguments

Under the Clean Air Act’s “good neighbor” provision, the EPA must order states to control air pollution that drifts across borders and violates federal ozone limits.

The EPA in 2016 passed an update to its Cross-State Air Pollution Rule (RIN: 2060–AS05) about how states can address cross-border pollution through a trading program, especially from upwind states. But the D.C. Circuit invalidated that rule last year in Wisconsin v. EPA. The court ordered EPA to rework the 2016 rule to ensure that upwind states reduce air pollution so that their downwind neighbors can meet federal ozone standards.

Maryland and Delaware argued that the EPA had no right to reject their petitions under the now-invalid 2016 rule.

Maryland said that the coal-fired power plants in its petition should be required to operate their non-catalytic controls if they don’t have catalytic controls. The D.C. circuit agreed, saying the EPA can’t claim that “such controls are not cost-effective in light of our decision in Wisconsin.”

The court, in rejecting Delaware’s petition, acknowledged that the EPA “impermissibly” said the state couldn’t rely on out-of-state monitors to show violation of federal ozone limits within its borders.

States in a multi-state non-attainment area like Delaware share not only a non-attainment designation, but also the “concomitant responsibility” to limit their own emissions, according to the ruling. The EPA’s decision to deny Delaware the opportunity to use out-of-state monitors was “arbitrary,” the court said.

The Delaware Department of Natural Resources and Environmental Control said it was disappointed with the overall decision and was evaluating its options. But it was pleased that the D.C. Circuit “reversed EPA’s unreasonable decision that Delaware failed to identify an air quality problem that was linked to the upwind sources,” spokesman Michael Globetti said in an email.

“The Court recognized that air pollution is not constrained by state borders and that all states adversely affected by upwind air pollution have the right to address that air pollution,” Globetti said.

Maryland Victory?

Jack Lienke, regulatory policy director for the New York University School of Law’s Institute of Policy Integrity, termed the D.C. Circuit’s ruling as a victory for Maryland. The institute had filed a brief on cost-effectiveness of pollution controls to back the two state petitions.

“From our perspective, the EPA lost,” Lienke said. “EPA was told to come back with a new explanation.”

The EPA had argued that the controls aren’t cost-effective to run, “but the court said, ‘Try again,” Lienke said.

Josh Berman, Sierra Club senior attorney saw the ruling as a “vindication for downwind state’s ability to obtain timely relief from transported out-of-state air pollution.

“In rejecting EPA’s reliance on speculative air quality projections the decision will help protect the health of Maryland and Delaware residents,” said Berman, who represented the environmental groups who intervened on behalf of Maryland and Delaware in the court.

A coalition of environmental groups including the Sierra Club intervened on behalf of the states. They reminded the D.C. Circuit that it had ordered the EPA, not the states, to devise a solution to reduce downwind pollution sources.

The Sierra Club has received funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg. Bloomberg Environment is operated by entities controlled by Michael Bloomberg.

Ozone Transport Panel

Maryland Environment Secretary Benjamin Grumbles said in an email the state is reviewing the case “and continuing to explore all tools, from the Ozone Transport Commission to other regulatory strategies and partnerships under the Clean Air Act.”

Twelve states make up the Ozone Transport Commission, which is charged with advising the EPA on transport issues and developing regional solutions to ground level ozone problems in the Northeast and Mid-Atlantic.

Maryland petitioned the commission last July to require Pennsylvania to run daily controls to curb ozone-forming pollution from its power plants. The commission is yet to decide how to proceed.

But Grumbles said the discussions so far have reinforced “the need for air pollution controls installed at power plants to be run every day during the summer to reduce ozone problems locally and in neighboring and not so neighboring downwind states.”

The case is: Maryland v. EPA, D.C. Cir., No. 18-1285, 5/19/20

(Added comment from attorney Cheryl Gonzalez and officials in Maryland and Delaware.)

To contact the reporter on this story: Amena H. Saiyid in Washington at asaiyid@bloombergenvironment.com

To contact the editors responsible for this story: Gregory Henderson at ghenderson@bloombergindustry.com; Rebecca Baker at rbaker@bloombergindustry.com