New York, NY - October 6, 2016 - Attorney General Eric T. Schneiderman, leading a coalition of five states, brought a lawsuit today against the federal Environmental Protection Agency (EPA) to force the Agency to take long-overdue action on a coalition petition that seeks to ensure upwind states control the pollution that blows into New York and other downwind states. This pollution from upwind states contributes to dangerous ground-level ozone, or “smog.” The petition, which was submitted to EPA in late 2013, would have EPA add nine additional states to the “Ozone Transport Region” (Ozone Region), a group of states established under the federal Clean Air Act that must act in concert to reduce smog pollution within the region.
“States upwind of New York that don’t take adequate responsibility for their pollution shift the cost and public health burdens of this pollution onto New Yorkers,” Attorney General Schneiderman said. “Our coalition has waited almost three years for EPA to decide on whether it will use its legal authority to require upwind states to stem their contribution to the smog pollution. As we have waited, the health of millions of New Yorkers has continued to be threatened. Today, we are suing to force long-overdue action by EPA on this important petition.”
“For too long, New York State’s air quality has suffered from pollution from coal-fired power plants located in upwind states,” said Basil Seggos, Commissioner, New York State Department of Environmental Conservation. “It is time for EPA to require those states to join our efforts to reduce the ozone pollution that contributes to asthma and other respiratory illness.”
In December 2013, New York and other Northeastern states submitted a petition under the Clean Air Act asking EPA to add the nine states shown through modelling and analysis to contribute to ozone standard violations in the Ozone Region. While the Clean Air Act requires EPA to act on such a petition within 18 months, and the coalition notified EPA in April of this year of its intention to sue over further inaction, the Agency has yet to act on the petition.
As a consequence, today, New York, joined by the states of Connecticut, Massachusetts, New Hampshire, Rhode Island, and Vermont filed a lawsuit in the U.S. District Court, Southern District of New York asking the court to compel EPA to comply with its nondiscretionary duty under the Clean Air Act to approve or disapprove the petition. The States seeks a court order requiring EPA to provide for public notice and comment on the states’ petition and to approve or disapprove the petition, after considering public comment, by a date certain.
Elevated levels of smog can cause a host of significant health effects, including coughing, throat irritation, lung tissue damage, and the aggravation of existing medical conditions, such as asthma, bronchitis, heart disease, and emphysema. Exposure to ozone has also been linked to premature mortality. Some groups, such as children, the elderly, and those with existing lung diseases are heightened health risk from exposure to smog. According to the American Lung Association’s “2016 State of the Air Report,” the New York City metropolitan area ranks as the 14th most smog-polluted city in the nation.
Congress created the Ozone Region to help states address pervasive smog problems in the Northeastern United States. By statute, the Region consists of 11 states – Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Vermont – and the District of Columbia metropolitan area. Each state within the Region must develop and implement plans that achieve controls on NOx and VOCs applicable to all the states in the Region. However, despite enacting stringent in-state controls on sources of these pollutants, many states within the OTR – including New York – are not able to meet federal health-based air quality standards for smog.
Modeling and analysis performed by EPA as well as states has shown that interstate transport of air pollution from upwind states outside of the Ozone Region –including Illinois, Indiana, Kentucky, Michigan, Ohio, Tennessee, Virginia, and West Virginia – contribute significantly to violations of the 2008 federal smog standard within the Ozone Region. In addition, preliminary modeling demonstrates that emissions in these states, as well as North Carolina, are projected to contribute to violations of the recently updated, 2015 federal smog standard in the Region.
States outside and upwind of the Region are not required to, and generally do not, impose controls as stringent as those required of those within the Region. However, the federal Clean Air Act provides for states to petition EPA to add states to the Ozone Region, and for EPA to add states when the Agency has reason to believe that the interstate transport of air pollution from them when they significantly contribute to exceedences of the federal standard for smog in the Region.
This matter is being handled by Assistant Attorneys General Morgan A. Costello and Michael J. Myers of the Attorney General’s Environmental Protection Bureau. The Environmental Protection Bureau is led by Lemuel M. Srolovic and is part of the Division of Social Justice, which is led by Executive Deputy Attorney General for Social Justice Alvin Bragg.
Robert Sliwinski, Robert Bielawa, Colleen McCarthy, Caitlin Stephen and Scott Griffin assisted from the Department of Environmental Conservation.