Attorney General James Leads Multistate Coalition to Combat Air Pollution Across the Country

Coalition Urges Court to Uphold EPA’s Authority to Reduce Cross-State Ozone Pollution

NEW YORK – New York Attorney General Letitia James led a coalition of attorneys general and localities in submitting an amicus brief to the U.S. Court of Appeals for the Sixth Circuit in the case of Kentucky v. EPA to defend the U.S Environmental Protection Agency’s (EPA) authority under the Clean Air Act to ensure that each state does its fair share to reduce the air pollution that travels into other states. The coalition supports the EPA’s disapproval of Kentucky’s state implementation plan (SIP) for failing to satisfy the Clean Air Act’s Good Neighbor Provision, which requires each state to prohibit its in-state emissions that will significantly impede other states’ ability to achieve healthy air.

“Interstate air pollution creates serious health concerns, harms our climate, and reduces the quality of life for residents of different states,” said Attorney General James. “New York is one of the many downwind states affected by Kentucky’s pollution emissions, and we have seen a substantial decrease in our air quality because of it. That is why I am leading a coalition of fellow attorneys general to support the EPA’s authority to ensure states cannot dodge their responsibilities as outlined in the Clean Air Act. My office will always fight for common sense pollution regulation to protect New Yorkers’ right to clean air.”

Congress included the Good Neighbor Provision in the Clean Air Act to address the problem of interstate pollution and help ensure that states fulfill their obligations to other states. In 2015, the EPA strengthened the federal air quality standards for ozone nationwide. Ozone is the main ingredient in smog, and can cause or exacerbate respiratory illness in children, the elderly, and people who work or spend time outdoors.

In 2015, the EPA found that emissions from power plants and other industries in Kentucky, along with 20 other states, would significantly affect many of the coalition states’ ability to achieve safe levels of ozone. In response, rather than provide a plan to reduce emissions, Kentucky and several other states simply downplayed the harm to downwind states and their air quality and minimized the role that their emissions played. When the EPA disapproved Kentucky’s SIP, Kentucky sued the EPA in the Sixth Circuit, and several other states with similarly inadequate plans sued the EPA in six other federal circuit courts across the country.

The brief filed by Attorney General James and the coalition emphasizes three points. First, the coalition urges the Sixth Circuit to transfer the proceedings to the D.C. Circuit, where the Clean Air Act requires such legal challenges to be heard. The coalition explains that New York and other amici states have been unfairly burdened by having to litigate in multiple federal circuit courts across the country to protect their residents from upwind air pollution. Furthermore, inconsistent rulings from these courts might allow some upwind states to escape their responsibilities to reduce pollution. Second, the coalition defends EPA’s rejection of Kentucky’s proposal to classify its interstate pollution as de minimis. Kentucky’s proposal would have allowed the state to evade its responsibilities under the Clean Air Act, by deeming insignificant the pollution it sends into downwind states like New York, when such pollution does, in fact, make a meaningful difference in air quality in those downwind states. Finally, the coalition defends the EPA’s authority to review state implementation plans for substantive compliance with the Clean Air Act.

Joining Attorney General James in submitting today’s amicus brief are the attorneys general of Connecticut, Illinois, Maryland, Massachusetts, New Jersey, Pennsylvania, Wisconsin, and the District of Columbia. The City of New York and Harris County, Texas also joined the amicus brief.

Leading this multistate coalition is part of Attorney General James’ ongoing efforts to protect New Yorkers’ right to clean air and natural resources. In August and November, Attorney General James led a similar coalition of attorneys general and local governments to urge the U.S. Courts of Appeals for the Fifth and Eighth Circuits to protect EPA authority to curb dangerous pollution that crosses state lines. Last month, Attorney General James also filed a historic lawsuit against PepsiCo for endangering the environment and public health with plastic pollution. Recently, Attorney General James helped secure $2.8 million from FrieslandCampina due to air and water pollution in Delaware County, and joined a bipartisan, multistate coalition opposing a proposed settlement with 3M for contaminating drinking water supplies.

This matter is being handled by Assistant Solicitor General Elizabeth A. Brody, Deputy Solicitor General Judith N. Vale, and Solicitor General Barbara D. Underwood — all of the Division of Appeals and Opinions, and by Assistant Attorney General Morgan A. Costello, Chief of the Affirmative Litigation Section, and Assistant Attorney General Claiborne E. Walthall — both of the Environmental Protection Bureau.