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NY, Other States to Argue EPA Fails to Enforce Pollution ‘Drift’

May 6, 2020, 8:55 AM

New York, New Jersey, and New York City are set to argue Thursday that the Environmental Protection Agency wrongfully denied the states’ petition to act on pollution coming from nine upwind states in a virtual oral argument before the U.S. Court of Appeals for the District of Columbia Circuit.

The argument focuses on New York’s petition under the Clean Air Act’s “good neighbor” provision to impose emission limits on 350 industrial sources of nitrogen oxides, about half of which are coal-fired power plants. The provision requires states to remove emissions that are significantly affecting air quality in a downwind state.

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

The EPA says in its brief filed April 2 that the petition, which it denied, was “materially deficient.” The agency says New York failed to include the type or location of the pollution sources, their existing controls or requirements, and the cost of implementing limits.

The state also failed to show its requested emissions controls would be cost-effective, the agency says, a requirement under the good neighbor provision.

“EPA did all that the law requires—and more,” according to the agency.

The states argue in their brief filed March 27 that the EPA is being unreasonable in requiring New York to collect sourcing and other information. The state doesn’t have direct authority over the emissions sources, the brief says, compared to the agency which is authorized under the CAA to demand emissions records.

The agency didn’t show gathering such data would be impossible in the year it took to weigh the petition. Instead, it made “no attempt” to collect such data, the states say.

Without prompt action on emissions limits, the states say they will face almost certain reclassification to “severe” nonattainment under the 2008 Ozone National Ambient Air Quality Standard.

Paul Miller, executive director of the Northeast States for Coordinated Air Use Management, said the agency should support New York and surrounding states in adopting programs to reduce their own pollution, but also work on a regional scale to reduce pollution coming into the state.

“Every ton of pollution reduced that’s influencing New York is needed,” he said.

The EPA is facing multiple challenges to its actions or alleged inaction under the good neighbor provision.

Environmental groups say in a separate lawsuit filed in February that the agency is failing to publish good neighbor plans for at least 20 states. A similar suit is pending by other states including Maryland and Delaware.

New York, Connecticut, and New Jersey dropped a lawsuit alleging the EPA failed to act on pollution coming from Pennsylvania and Virginia in January, after the agency published findings in the December federal register.

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.

The case is New York v. EPA, D.C. Cir., No. 19-01231, argument 5/7/20.

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; Patrick L. Gregory at pgregory@bloomberglaw.com; Steven Patrick at spatrick@bloomberglaw.com

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