EPA Must Review N.Y., N.J. Push to Limit Drifting Pollution (3)

July 14, 2020, 4:54 PM; Updated: July 14, 2020, 8:31 PM

The Environmental Protection Agency failed to explain the “convoluted” and “seemingly unworkable” demands it expected from New York when it denied the state’s petition to act on pollution coming from nine upwind states, the D.C. Circuit said Tuesday.

New York state, New Jersey, and New York City petitioned the agency under the Clean Air Act’s “good neighbor” provision to impose emissions limits on 350 industrial sources of pollution, but the agency said the petition was “materially deficient.”

The EPA said the states failed to include the type or location of the sources, their existing controls or requirements, and the cost of implementing limits. The states also failed to show the requested emissions controls would be cost-effective, the agency said.

But the EPA’s test “at best, was a moving target and, at worst, demanded likely unattainable standards of proof,” the U.S. Court of Appeals for the District of Columbia Circuit said.

During oral argument, the EPA couldn’t say whether the state satisfied the first of four possible analyses, which was verifying that the named sources continue to emit nitrogen oxides. They also sent contradictory messages about whether New York had to prepare a comparative analysis of potential emissions reductions at listed and unnamed sources.

“The required analysis seems to be a constantly moving target, with the words of explanation from the agency variously meaning and not meaning what they say,” Judge Patricia A. Millett wrote.

The agency also claimed the court’s ruling in Wisconsin v. EPA held that the Cross-State Air Pollution Rule Update fully addressed any Good Neighbor Provision violations in the nine states. To the contrary, the ruling described the update rule as a “first, partial step,” to addressing upwind pollution, and does nothing to salve the agency’s rejection of New York’s petition, the court said.

The court vacated the agency’s denial of the petition and remanded the case. It denied New York’s request for a 60-day deadline for the EPA to issue a new decision, saying it fully expects the agency to “act promptly upon remand.”

‘Another Clear Message’

Basil Seggos, commissioner of New York State Department of Environmental Conservation, said Tuesday’s ruling sends “yet another clear message” to the Trump EPA: “Quit being cryptic, stop moving the goal posts, and do your job.”

Seggos said New York State has the most stringent air quality rules to protect its communities against air pollution and climate change.

“But we can’t stop pollution at our borders. New York’s air quality is improving, however, EPA’s repeated failure to require upwind states to limit their pollution means our state suffers the consequences,” Seggos said in a statement Tuesday.

Liana James, attorney for Environmental Defense Fund, which joined the case in support of the states, said the ruling “will help protect the lives and health of millions of New Yorkers who are threatened by the smog that blows across state line.”

The court mostly upheld the EPA’s rejection of similar petitions from Delaware and Maryland earlier this year, which seemed to show the agency was given free rein in denying those types of petitions, said Paul Miller, executive director of Northeast States for Coordinated Air Use Management, a clean air association.

“This, however, seems to rein it back in,” Miller said, referring to Tuesday’s ruling. “How much will probably be the subject of a future court case.”

An EPA spokesperson would only say the agency is “reviewing the decision.”

Chief Judge Sri Srinivasan joined Millett’s opinion.

Judge Thomas B. Griffith wrote in a concurring opinion that the good neighbor provision wasn’t designed for petitions of this range, and future petitioners should try to tailor their petitions to specific sources.

The New York State Office of the Attorney General represents the state. New Jersey is represented by its State Office of the Attorney General. The New York City Law Department represents the city. The U.S. Justice Department represents the federal government.

—With assistance from Amena H. Saiyid

The case is New York v. EPA, D.C. Cir., No. 19-01231, 7/14/20.

(Updated with response from New York DEC.)

To contact the reporter on this story: Maya Earls in Washington at mearls@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Rebecca Baker at rbaker@bloombergindustry.com

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