New York, Northeast states sue EPA over ozone transport

A coalition of five Northeastern states brought a lawsuit Oct. 6 against the Environmental Protection Agency (EPA) to force the federal agency to take action on a coalition petition that seeks to ensure upwind states control the pollution that blows into New York and other downwind states.

The action was announced in an Oct. 6 news release by Attorney General Eric T. Schneiderman.

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, Schneiderman said in the news release.

“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.”

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.

The New York attorney general said that the affected Northeast states and the “upwind states” tried to reach a voluntary agreement to resolve the ozone transport issue but failed to do so. The Northeast states say their ability to attain 2008 ozone and National Ambient Air Quality Standards is being hurt by pollution from the other states.

As a consequence, 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.

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.

The Northeast states are suing Gina McCarthy in her official capacity as EPA administrator. The complaint is Index No. 16-7827.

About Wayne Barber 4201 Articles
Wayne Barber, Chief Analyst for the GenerationHub, has been covering power generation, energy and natural resources issues at national publications for more than 20 years. Prior to joining PennWell he was editor of Generation Markets Week at SNL Financial for nine years. He has also worked as a business journalist at both McGraw-Hill and Financial Times Energy. Wayne also worked as a newspaper reporter for several years. During his career has visited nuclear reactors and coal mines as well as coal and natural gas power plants. Wayne can be reached at