New York, NY - December 5, 2018 - Attorney General Barbara D. Underwood, leading a coalition that also includes New Jersey Attorney General Gurbir S. Grewal and the City of New York, has moved to intervene in a lawsuit against the Environmental Protection Agency (EPA) to force the Agency to cut pollution that blows in from upwind states and, in large part, is responsible for unhealthy levels of ground-level ozone – aka “smog.” According to the American Lung Association’s 2018 “State of the Air” Report, 9.4 million New Yorkers – almost 50% of the state’s population – are breathing unhealthy air due to smog.
Attorney General Underwood and the coalition is seeking to join consolidated lawsuits brought by Maryland, Delaware, and public health and environmental organizations. These lawsuits challenge EPA’s refusal – in the form of a denial of petitions made by Delaware and Maryland under the federal Clean Air Act – to require pollution sources in upwind states to reduce their emissions of smog-forming pollution. Since these same pollution sources contribute to unhealthy smog levels in New York, and because New York has a similar Clean Air Act petition currently pending before the Agency, EPA’s denial of the states’ petition has direct implications for the health and safety of millions of New Yorkers.
“The Trump Administration has flouted even their most basic legal obligations to protect public health and our environment,” Attorney General Underwood said. “The health of an alarming 9.4 million New Yorkers – one in two of our residents – is jeopardized by smog pollution. Yet, the Trump EPA continues to ignore the Clean Air Act and refuses to require reductions in the pollution largely responsible for this serious health risk – pollution that blows into New York from upwind states. My office is committed to protecting New Yorkers’ legal right to clean, healthy air by forcing the Trump Administration to follow the law.”
New York has some of the strictest air quality regulations in the country, and the pollutants that cause smog – such as nitrogen oxides (NOx) and volatile organic compounds (VOCs) – are rigorously controlled within the state. In fact, New York has among the lowest emissions of NOx and VOCs in the country. Despite these extensive efforts, however, a number of areas in New York have struggled for years to meet the federal health standard for smog; for example, according to the American Lung Association’s 2018 report, the New York City metropolitan area is the tenth most smog-polluted area in the nation.
The EPA has concluded that there are a number of dangerous health impacts associated with elevated levels of smog, including lung tissue damage and aggravation of existing conditions, such as asthma, bronchitis, heart disease, and emphysema. Exposure to smog is also linked to premature death. Some groups – including children, the elderly, and those with existing lung diseases like asthma – are at especially heightened risk from smog pollution.
To address the unfair burden that states such as New York face in reducing unhealthy smog levels where the pollution is beyond its control, section 126 of the Clean Air Act specifically allows downwind states to petition EPA for a finding that upwind sources are emitting air pollution in violation of the Act’s “Good Neighbor” provision. That provision requires the EPA to step in and adopt plans to reduce interstate smog pollution when the actions of upwind states are not sufficient to ensure that federal smog health standards can be met and sustained in downwind states like New York. EPA’s obligation under the Act to adopt such plans – known as “Federal Implementation Plans” or “FIPs” – reflects the Agency’s unique position and authority, as a federal agency, to ensure that the individual efforts of multiple upwind states will be sufficient, in aggregate, to solve regional air pollution problems, such as smog.
Attorney General Underwood has been active in seeking to force EPA to live up to its legal obligations under the Clean Air Act to address the smog pollution that blows into the state from upwind states.
In June, Attorney General Underwood won a lawsuit against the EPA, forcing the Agency to comply with the Clean Air Act’s “Good Neighbor” requirements to adopt FIPs to reduce smog pollution from several upwind states.
Additionally, New York, leading a coalition of nine states, petitioned EPA to expand the “Ozone Transport Region,” the group of states established under the federal Clean Air Act that must act in concert to reduce smog pollution within the region. The Trump EPA denied that petition in 2017, stating – ironically – that the Agency “preferred” to use other provisions of the Clean Air Act – such as the Good Neighbor provision and petitions under section 126 – to address the interstate transport of smog pollution. New York is leading an eight-state coalition in challenging EPA’s denial in the United States Court of Appeals for the District of Columbia.
New York also petitioned the Trump EPA in March of this year to take action under section 126 of the Clean Air Act to reduce emissions of smog-forming pollution from sources in upwind states. While this petition is currently pending before the Agency, its future is uncertain if EPA were to apply the same flawed legal standards and factual findings applied in denying the Delaware and Maryland petitions.
The consolidated lawsuit in which Attorney General Underwood and the coalition is seeking to intervene is also before the United States Court of Appeals for the District of Columbia.
This matter is being handled for the Attorney General’s Environmental Protection Bureau by Assistant Attorney General Claiborne Walthall, Affirmative Section Chief Morgan A. Costello, and Senior Counsel Michael J. Myers, as well as Deputy Solicitor General Steven C. Wu and Assistant Solicitor General David S. Frankel of the Division of Appeals and Opinions. The Environmental Protection Bureau is led by Bureau Chief Lemuel M. Srolovic and is part of the Division of Social Justice, which is led by Executive Deputy Attorney General for Social Justice Matthew Colangelo.