Federal appeals court overturns EPA denial of New York request to limit interstate air pollution


Fall foliage changes colors near Three Brothers Mountain in Adirondack Park in Keene Valley, N.Y. in October 2016. (AP / Tom Curley)

WASHINGTON (NEWS10) — New York won a legal environmental battle against the Environmental Protection Agency on Tuesday. In New York, et al. v. EPA, the D.C. Circuit Court of Appeals decided that the EPA “acted unlawfully” by opting not to limit emissions in states that were polluting the air in New York.

“For too long, EPA has ignored its legal responsibility to hold upwind polluters accountable.”

Letitia James
Attorney General of New York

The lawsuit sought to protect states in the Northeast—”downwind” states—from smog and acid rain formed by coal plants from nine “upwind” states. New York wanted the EPA to limit those upwind emissions so it and other downwind states could meet air quality standards under section 126 of the Clean Air Act.

Section 126’s “Good Neighbor” obligations grant important protections against interstate pollution for people, water sources, and natural ecosystems. It establishes the EPA’s duty to control upwind sources of pollution that prevent downwind states from reaching federal air quality standards.

“The nitrogen pollution from these coal-fired power plants turns into smog[,] shortens lives[, and] contributes to acid rain, killing fish and forests, and making mercury contamination worse. Coal kills.”

William Janeway
Executive Director of the Adirondack Council

The EPA initially denied a petition from New York in March 2018 that asked the agency to make sure upwind emissions would be reduced to allow healthy air standards in the Northeast. The court ruled that the EPA’s test for those downwind states to get relief under the statute was unlawful, saying it, “at best, was a moving target and, at worst, demanded likely unattainable standards of proof.”

Now, the EPA must review the downwind states’ request for relief again. “We expect that EPA will promptly provide the relief urgently needed to protect the health of millions of New York and New Jersey residents—and to protect natural resources including the Adirondack Park from acid rain and other harms,” said Sean H. Donahue, the lawyer for the Adirondack Council.

According to Department of Environmental Protection Commissioner Bill Seggos, the “federal Circuit Court of Appeals decision overturning EPA’s rejection of New York’s interstate ozone petition sends yet another clear message to Trump’s EPA: Quit being cryptic, stop moving the goalposts, and do your job.”

The lawsuit was filed by New Jersey, New York State, and New York City, with the Adirondack Council, the Environmental Defense Fund, and the Sierra Club joining in to support as “intervenors.” The air pollution came from nine upwind states: Illinois, Indiana, Kentucky, Maryland, Michigan, Ohio, Pennsylvania, Virginia, and West Virginia.

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