Attorney General James Sues Trump Administration For Failing To Address Interstate Smog Pollution 

Suit Seeks to Force EPA to Comply with the Clean Air Act, Protect New Yorkers’ Health by Requiring Sources of Smog Pollution in Upwind States to Further Cut Emissions

NEW YORK — New York Attorney General Letitia James today announced a lawsuit challenging the Trump Administration's Environmental Protection Agency (EPA) for failure to abide by its legal responsibility under the Clean Air Act (CAA) to ensure upwind sources of pollution do not continue to create unhealthy ground-level ozone pollution (commonly known as smog) in New York. 

The lawsuit, filed in the United States Court of Appeals for the District of Columbia Circuit, follows the EPA’s denial of a petition filed by New York in March 2018, pursuant to the “Good Neighbor” obligations set forth under Section 126(b) of Clean Air Act. That section of the Act establishes EPA’s legal responsibility to ensure the control of upwind sources that contribute to non-attainment of federal air quality standards in downwind states. The petition asked EPA to make a finding that the emissions of approximately 350 sources in upwind states violated the good neighbor provision and, upon making such a finding, ensure that these emissions are reduced as necessary to allow New York to attain and maintain health standards for smog. The EPA officially denied New York’s petition on Friday, October 18, 2019. 

“More than two-thirds of New Yorkers regularly breathe unhealthy air due to interstate smog pollution, yet the EPA continues to ignore the Clean Air Act,” said Attorney General James. “We will not remain idle when a federal agency called the 'Environmental Protection Agency' routinely refuses to protect the environment or the health of millions of people. My office will use every legal tool at our disposal to force the EPA to do its job and reduce pollution.” 

“New York State is resolute and will do whatever it takes to protect our communities from air pollution coming from other states," said New York State Department of Environmental Conservation Commissioner Basil Seggos. “DEC will continue to fight U.S. EPA’s refusal to safeguard our communities from ozone-causing emissions as EPA is—once again—bowing to the interests of polluters and abdicating its role to protect public health and the environment. By not doing its job and demanding that upwind states reduce their emissions, EPA is disregarding its own approved regulatory model and more importantly, EPA is failing to protect the American people.”     

On the worst air quality days this past summer, nearly 13 million New Yorkers—over 65 percent of our population—breathed air with unhealthy levels of smog. Nine New York counties are currently considered by the EPA to be out of compliance with federal health standards for smog. According to an American Lung Association analysis of 2015-2017 air quality data, millions of New Yorkers with lung disease—including nearly 250,000 children and almost 1,000,000 adults suffering from asthma—are placed at special risk by living in smog-polluted areas of the state. The Association ranks New York City as the tenth most polluted city in the nation for smog.   

Joining Attorney General James in today’s lawsuit is the Attorney General of New Jersey and the City of New York.   

Background on New York and National Air Quality Regulations   

Reducing smog levels is vital to protecting the health of New Yorkers. 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 is also linked to premature mortality. Children, the elderly, and those with existing lung diseases, such as asthma, are more vulnerable to ozone’s harmful effects.   

New York has some of the strictest air quality regulations in the country. The emissions of the pollutants that cause smog—such as nitrogen oxides (NOx) and volatile organic compounds (VOCs)—are aggressively regulated from power plants, factories, motor vehicles, and other sources within the state. In fact, New York has among the lowest emissions of NOx and VOCs in the country. As a result of their regulation, major stationary sources in New York reduced annual NOx emissions by 43 percent between 2008 and 2014, and major power plants in the state reduced ozone-season NOx emissions by 73 percent between 2008 and 2017.   

Smog precursors, such as NOx emitted from power plants and other sources, can travel hundreds of miles after they are emitted. The federal Clean Air Act recognizes the regional nature of the smog, and that emission sources located in multiple upwind states contribute to downwind states’ smog problems. Because of downwind states cannot solve their smog problems on their own, the “Good Neighbor” provision of the Clean Air Act 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.    

On October 2, 2019, the D.C. Circuit agreed with New York and other downwind states that EPA erred in issuing a regulation that rejected the need for upwind sources to reduce pollution that negatively impacts downwind areas. 

This matter is being handled for the Attorney General’s Environmental Protection Bureau by Assistant Attorneys General Claiborne E. Walthall, Affirmative Section Chief Morgan A. Costello, and Senior Counsel Michael J. Myers, under the supervision of Bureau Chief Lemuel M. Srolovic. The Environmental Protection Bureau is part of the Division of Social Justice, led by Chief Deputy Attorney General Meghan Faux. This matter is being handled for the Attorney General’s Division of Appeals and Opinions by Deputy Solicitor General Steven Wu. The Division of Appeals and Opinions is led by Solicitor General Barbara D. Underwood.