Attorney General James Reaches Agreement with Biden-Harris Administration to Crack Down on Air Pollution

EPA Commits to Ensuring Control of Pollution Blowing Into New York From Six Upwind States

NEW YORK – New York Attorney General Letitia James, leading a coalition of five states and the City of New York, today announced an agreement with the U.S. Environmental Protection Agency (EPA) that, if approved by the court, will commit the federal government to addressing pollution that blows into New York and creates unhealthy ground-level ozone (commonly known as smog). Under the agreement, the EPA must take final action on “good neighbor” plans from six states to limit downwind spread of smog-forming emissions. The agreement would resolve a lawsuit that Attorney General James and the coalition brought against the Trump Administration’s EPA in January 2021 over its failure to fulfill its legal responsibility under the Clean Air Act to take action to ensure the control of upwind sources of smog-forming pollution. 

“Following years of unregulated air pollution from other states into New York, this agreement promises a breath of fresh air for millions of New Yorkers,” said Attorney General James. “A majority of New Yorkers across the state regularly breathe polluted air — much of it from smog blown in from upwind states. With this agreement, the EPA has committed to finally taking the necessary action to protect our communities and the resources we depend on. My office will continue to fight to reduce pollution, and to support every New Yorker’s right to clean, healthy air.” 

On the worst air quality days, nearly 12.5 million New Yorkers — almost two-thirds of the state’s population — breathe air with unhealthy levels of smog. Nine New York counties are currently considered by the EPA to be out of compliance with national health standards for smog pollution. 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 smog is also linked to premature mortality. According to the American Lung Association’s 2021 State of the Air report, millions of New Yorkers with lung disease — including 380,000 children and over 1,600,000 adults suffering from asthma — are at special risk to the harmful effects of smog.  

The Clean Air Act requires that states submit plans — known as a “State Implementation Plan” or “SIP” — for meeting national health and welfare standards for air pollutants, including ozone smog. These SIPs must fulfill the requirements of the Clean Air Act’s “Good Neighbor Provision,” which prohibits sources within upwind states from emitting air pollutants in amounts that contribute to downwind states not attaining or maintaining compliance with the national ozone standards. The Clean Air Act specifies that the EPA must review each state’s completed SIP within 12 months, and either approve or reject the plan. If the EPA determines that a state’s plan does not meet the law’s requirements and rejects it, the EPA is then required to adopt a plan, known as a “Federal Implementation Plan” or “FIP,” for the state. 

Despite the Clean Air Act’s requirements, the Trump Administration’s EPA refused to carry out its mandatory statutory duty to approve or reject SIPs submitted by Indiana, Kentucky, Michigan, Ohio, Texas, and West Virginia pursuant to the Good Neighbor Provision. The EPA’s inaction meant that it neither determined the adequacy of the proposed Good Neighbor SIPs nor triggered its obligation to adopt FIPs for the states with deficient plans. As a result of this inaction and because pollution emitted from sources in these states contributed substantially to smog problems in New York and other states, the coalition sued the Trump Administration’s EPA in the U.S. District Court for the Southern District of New York on January 12, 2021 to compel the EPA to approve or reject the upwind states’ SIPs.   

The agreement announced today with the Biden-Harris Administration’s EPA resolves the coalition’s lawsuit and ends the EPA’s illegal delay by establishing deadlines for action. The agreement requires the EPA to approve or reject Good Neighbor SIPs from the upwind states by April 30, 2022. If, however, the EPA proposes by February 28, 2022 to reject one or more SIP and to adopt a corresponding FIP, the EPA will have until December 15, 2022 to finalize the SIP rejections. This creates strong incentives for the EPA to concurrently evaluate SIPs and propose FIPs where necessary, expediting reduction of upwind states’ emissions as required by the Good Neighbor Provision.

Following a notice-and-comment period required by the Clean Air Act, the agreement will be sent to the U.S. District Court for final approval.

Attorney General James thanks the New York state Department of Environmental Conservation for its assistance. 

Joining Attorney General James in announcing today’s agreement are the attorneys general of Connecticut, Delaware, Massachusetts, and New Jersey, as well as the corporation counsel of the City of New York.

This matter is being handled by Assistant Attorney General Claiborne E. Walthall, Affirmative Section Chief Morgan A. Costello, and Senior Counsel Michael J. Myers, under the supervision of Environmental Protection Bureau Chief Lemuel M. Srolovic. The Environmental Protection Bureau is a part of the Division for Social Justice, which is led by Chief Deputy Attorney General Meghan Faux and is overseen by First Deputy Attorney General Jennifer Levy.