D.C. Circuit Orders EPA to Help New York Protect People from Deadly Cross-State Air Pollution

(Washington, D.C. – July 14, 2020) The U.S. Court of Appeals for the D.C. Circuit today told the Trump EPA that it cannot refuse the state of New York’s request for help with dangerous, and often deadly, cross-state air pollution.

A three-judge panel ordered that EPA’s denial of New York’s petition for help be vacated and that EPA reconsider its decision.

“Today’s decision will help protect the lives and health of millions of New Yorkers who are threatened by the smog that blows across state lines,” said EDF attorney Liana James. “The Good Neighbor provisions of the Clean Air Act exist so that downwind states don’t have to struggle with dangerous pollution alone. Today the court reinforced that fundamental ideal and ordered EPA to do its job.”

Smog is linked to premature deaths, asthma attacks and long-term lung damage. States that are working to reduce smog are often undermined by the dirtier air that blows across their borders from coal plants and other sources in upwind states. A recent study found that, in most states, about half the premature deaths caused by poor air quality are linked to pollution that blows in from other states. In New York, almost two-thirds of those premature deaths are due to cross-state air pollution.

The Clean Air Act obligates EPA to safeguard downwind states against smog-forming pollution from coal-fired power plants and other sources in upwind states, under what are known as the Good Neighbor provisions. In March of 2018, New York asked EPA for help with pollution from hundreds of sources in nine upwind states: Illinois, Indiana, Kentucky, Maryland, Michigan, Ohio, Pennsylvania, Virginia and West Virginia. EPA denied the state’s petition.

New York, the city of New York, and New Jersey then sued EPA for failing to protect millions of New Yorkers from smog-forming pollution from upwind coal smokestacks, industrial facilities, and oil and gas activities in neighboring states. EDF, the Adirondack Council, and Sierra Club were parties to the case in support of the states.

Today the D.C. Circuit ruled that “EPA offered insufficient reasoning for the convoluted and seemingly unworkable showing it demanded of New York’s petition … EPA’s test, at best, was a moving target and, at worst, demanded likely unattainable standards of proof.” (Decision, pages 3 and 13) The court declined to set a final deadline but ordered that “we fully expect the EPA to act promptly on remand.” (Decision, page 23)