Several smoke stacks at a power plant spewing smoke into the sky.

Clean Air Act and Upwind Pollution

Clean Air Act Sec­tion 126 Actions

Under Sec­tion 126 of the Clean Air Act, a down­wind state can file a peti­tion with the Envi­ron­men­tal Pro­tec­tion Agency (EPA) to make a find­ing that upwind states are con­tribut­ing to its inabil­i­ty to com­ply with smog stan­dards. The EPA would then be required to take action against those upwind states. The attor­neys gen­er­al of Mary­land, Delaware, Con­necti­cut and New York have ini­ti­at­ed legal actions under Sec­tion 126 to force the EPA to cur­tail unlaw­ful upwind air pol­lu­tion that is caus­ing unhealthy lev­els of smog to form in their states.

2017-2021

Con­neti­cut

  • Feb­ru­ary 2018

    In Feb­ru­ary 2018, a fed­er­al judge ruled in Con­necti­cut’s favor, requir­ing the EPA to act with­in 60 days on the state’s 2016 peti­tion tar­get­ing a Penn­syl­va­nia pow­er plant that has been emit­ting air pol­lu­tants that con­tribute to Con­necti­cut’s non­com­pli­ance with smog stan­dards. The EPA quick­ly reached a pre­lim­i­nary deci­sion to reject Con­necti­cut’s peti­tion, but Con­necti­cut Attor­ney Gen­er­al George Jepsen indi­cat­ed that his office is com­mit­ted to forc­ing the EPA to deal with emis­sions from the Penn­syl­va­nia pow­er plant. The EPA final­ized its denial of Connecticut’s peti­tion in April 2018.

Mary­land and Delaware

  • June 2018

    In June 2018, a fed­er­al judge in Mary­land ordered the EPA to make a final deci­sion on Maryland’s 2016 peti­tion that the EPA find 36 pow­er plants in five states are inter­fer­ing with Maryland’s abil­i­ty to com­ply with smog stan­dards. The EPA indi­cat­ed ear­li­er in June that it planned to reject Maryland’s peti­tion, and held a pub­lic hear­ing at the end of the month on the sub­ject. Mary­land Attor­ney Gen­er­al Bri­an Frosh tes­ti­fied at the pub­lic hear­ing and crit­i­cized the EPA for fail­ing to address the prob­lem of down­wind pol­lu­tion pur­suant to its oblig­a­tions under the Clean Air Act.

  • Octo­ber 2018

    In Octo­ber 2018, the EPA denied the peti­tion filed by Mary­land and denied the four peti­tions sub­mit­ted by Delaware. A few days lat­er, Mary­land Attor­ney Gen­er­al Bri­an Frosh announced his inten­tion to appeal the EPA’s deci­sion to the D.C. Cir­cuit Court of Appeals. In Octo­ber 2018, Attor­ney Gen­er­al Frosh fol­lowed through on his inten­tion and filed a peti­tion for review of the EPA’s denial in the D.C. Cir­cuit. The fol­low­ing month, Delaware Attor­ney Gen­er­al Matthew Denn also filed a peti­tion for review of the EPA’s denial of Delaware’s four peti­tions in the D.C. Circuit.

  • Decem­ber 2018

    In Decem­ber 2018, New York Attor­ney Gen­er­al Bar­bara Under­wood and New Jer­sey Attor­ney Gen­er­al Gur­bir Gre­w­al filed a motion to inter­vene in sup­port of the peti­tions for review filed by Delaware and Mary­land. The motion to inter­vene not­ed that New York and New Jer­sey also can­not com­ply with fed­er­al smog stan­dards because the states are upwind of the same pow­er plants that gen­er­ate smog in Mary­land and Delaware.

  • March 2019

    In March 2019, Delaware and Mary­land filed open­ing briefs with the D.C. Cir­cuit in their con­sol­i­dat­ed peti­tions for review of the EPA’s denial of the states’ Sec­tion 126 peti­tions. Both states not­ed that EPA had erred in con­clud­ing that a pre­vi­ous­ly issued rule, the Cross-State Air Pol­lu­tion Rule (CSAPR) Update, had ade­quate­ly addressed the issues the states raised in their peti­tions; the CSAPR Update only pro­vid­ed par­tial rem­e­dy to the out-of-state pol­lu­tion impact­ing Mary­land and Delaware.

  • Sep­tem­ber 2019

    In Sep­tem­ber 2019, in relat­ed but sep­a­rate lit­i­ga­tion chal­leng­ing the CSAPR Update, the D.C. Cir­cuit sided with the attor­ney gen­er­al of Delaware and a coali­tion of six oth­er attor­neys gen­er­al in con­clud­ing the par­tial rem­e­dy in the Update was not con­sis­tent with the text of the Clean Air Act. The EPA will like­ly now not be able to rely on the CSAPR Update to defend its denial of the Mary­land and Delaware’s Sec­tion 126 petitions.

  • May 2020

    In May 2020, in the con­sol­i­dat­ed lit­i­ga­tion over EPA’s denial of the states’ Sec­tion 126 peti­tions, the D.C. Cir­cuit issued a deci­sion that grant­ed Maryland’s peti­tion for review in part, order­ing EPA to recon­sid­er the state’s 2016 peti­tion, and remand­ing to EPA the part of the peti­tions impact­ed by the court’s Sep­tem­ber 2019 deci­sion on the CSAPR Update. Impor­tant­ly, the court instruct­ed the agency to recon­sid­er Maryland’s Sec­tion 126 peti­tion on the basis of prop­er cost-effec­tive­ness analy­sis and the rel­a­tive cost of dif­fer­ent means of bring­ing the state into com­pli­ance with smog stan­dards. EPA can­not avoid its respon­si­bil­i­ty to reduce pol­lu­tion from upwind states by assert­ing, as it had in reject­ing the Sec­tion 126 peti­tion, that it was not cost effec­tive to require upwind emis­sions reduc­tions in Maryland.

  • Octo­ber 2020

    In response to the May 2020 deci­sion to remand the mat­ter to EPA in light of the Sep­tem­ber 2019 deci­sion, the EPA released a pro­posed rule in Octo­ber 2020 to revise the exist­ing Cross-State Air Pol­lu­tion Rule. The pro­pos­al would reduce the num­ber of states from 21 to 12 with poten­tial good neigh­bor” oblig­a­tions to curb emis­sions to address their down­wind impacts. The pro­pos­al would also impose addi­tion­al restric­tions on nitro­gen oxide (NOx) pol­lu­tion from pow­er plants in 12 states, which will have to opti­mize their already-installed pol­lu­tion con­trols for the 2021 sum­mer ozone sea­son and install or upgrade low-NOx burn­ers for 2022.

New York

  • March 2018

    In March 2018, the New York State Depart­ment of Envi­ron­men­tal Con­ser­va­tion filed a peti­tion with EPA to find that pow­er plants in nine states are sig­nif­i­cant­ly con­tribut­ing to the state’s inabil­i­ty to sat­is­fy smog stan­dards or are inter­fer­ing with the state’s abil­i­ty to remain in com­pli­ance with smog stan­dards. Under the Clean Air Act, EPA was required to respond to New York’s Sec­tion 126 peti­tion with­in 60 days. In May 2018, how­ev­er, EPA grant­ed itself a six-month exten­sion to act on EPA’s petition.

  • April 2019

    In April 2019, New York Attor­ney Gen­er­al James filed a law­suit against the EPA in fed­er­al dis­trict court in New York seek­ing a declara­to­ry judg­ment that the EPA has vio­lat­ed Sec­tion 126 of the Clean Air Act. The suit calls on the court to instruct the EPA to per­form its manda­to­ry duties under Sec­tion 126, includ­ing hold­ing a pub­lic hear­ing and act­ing on the state’s petition.

  • May 2019

    In May 2019, EPA indi­cat­ed that it intend­ed to deny New York’s upwind peti­tion lat­er in 2019, an action that would allow New York to chal­lenge the denial of the peti­tion in the D.C. Cir­cuit. Six months lat­er, in Octo­ber 2019, the EPA final­ized its denial of New York’s upwind peti­tion. With­in a month, New York Attor­ney Gen­er­al James along with New Jer­sey Attor­ney Gen­er­al Gre­w­al filed a peti­tion for review chal­leng­ing the EPA’s denial of New York’s upwind petition.

  • July 2020

    In July 2020, the D.C. Cir­cuit issued a deci­sion in favor of Attor­neys Gen­er­al James and Gre­w­al, grant­i­ng the peti­tion for review. The court found that the EPA offered insuf­fi­cient rea­son­ing for deny­ing New York’s upwind peti­tion – its action was arbi­trary and capri­cious in vio­la­tion of the Admin­is­tra­tive Pro­ce­dure Act (APA). The denial of the peti­tion was vacat­ed and was remand­ed back to the EPA for fur­ther pro­ceed­ings not incon­sis­tent” with the court’s opinion.

Oth­er Clean Air Act Actions

In addi­tion to Sec­tion 126 of the Clean Air Act, state attor­neys gen­er­al have pur­sued legal action under Sec­tion 110 (a)(2)(D)(i), known as the good neigh­bor” pro­vi­sion, and Sec­tion 176A, which cov­ers inter­state trans­port commissions.

The Good Neigh­bor Pro­vi­sion and North­east­ern States

2017-2021

The New York Attor­ney Gen­er­al’s Office is insist­ing that the EPA cur­tail unlaw­ful upwind pol­lu­tion under Sec­tion 110 (a)(2)(D)(i), known as the good neigh­bor” pro­vi­sion. The Office has filed a num­ber of law­suits against EPA on this front. 

  • Octo­ber 2017

    In Octo­ber 2017, New York sent EPAnotice of intent to sue the EPA for fail­ing to pro­mul­gate fed­er­al plans to reduce ozone pol­lu­tion from five states that con­tribute to ozone prob­lems in the New York City met­ro­pol­i­tan area by August 2017.

  • Jan­u­ary 2018

    In Jan­u­ary 2018, the New York Attor­ney Gen­er­al’s Office and Con­necti­cut Attor­ney Gen­er­al George Jepsen filed a suit against the EPA for miss­ing the August 2017 dead­line to pro­mul­gate plans to reduce pol­lu­tion from the five states that con­tribute to ozone pol­lu­tion in the New York City met­ro­pol­i­tan area. A fed­er­al judge in fed­er­al dis­trict court in New York ruled in New York and Connecticut’s favor in June 2018, find­ing the EPA in vio­la­tion of the Clean Air Act and order­ing the agency to pro­mul­gate plans to reduce pol­lu­tion from each of the five states.

  • Decem­ber 2018

    In Decem­ber 2018, EPA met its court ordered dead­line for pro­mul­gat­ing plans to reduce pol­lu­tion from the five states by issu­ing a final rule. The final rule does not require the twen­ty states sub­ject to the rule to take any fur­ther steps to reduce ozone pol­lu­tion beyond what is cur­rent­ly required by EPA reg­u­la­tions. In Jan­u­ary 2019, a coali­tion of six attor­neys gen­er­al led by New York Attor­ney Gen­er­al Leti­tia James chal­lenged the final rule by fil­ing a peti­tion for review with the Dis­trict of Colum­bia Cir­cuit Court of Appeals.

  • Octo­ber 2019

    In Octo­ber 2019, the D.C. Cir­cuit sided with New York Attor­ney Gen­er­al James in vacat­ing the Decem­ber 2018 final rule that did not require the twen­ty upwind states to take any fur­ther steps to reduce ozone pol­lu­tion that drifts into down­wind states. The court con­clud­ed that the Decem­ber 2018 final rule relied on an imper­mis­si­ble inter­pre­ta­tion of the good neigh­bor” pro­vi­sion of the Clean Air Act that would relieve the EPA and upwind states from their statu­to­ry oblig­a­tion to reduce sig­nif­i­cant con­tri­bu­tions to down­wind states’ non-com­pli­ance with ozone stan­dards. In Novem­ber 2019, the court ordered the EPA to devel­op and imple­ment a rem­e­dy under the good neigh­bor pro­vi­sion of the Clean Air Act.

  • Octo­ber 2019

    In Octo­ber 2019, New Jer­sey Attor­ney Gen­er­al Gre­w­al and Con­necti­cut Attor­ney Gen­er­al William Tong filed a law­suit against the EPA in fed­er­al dis­trict court in the Dis­trict of Colum­bia for fail­ing to crack down on upwind states’ con­tri­bu­tion to New Jer­sey and Connecticut’s non­com­pli­ance with nitro­gen oxide and smog pol­lu­tion stan­dards. The law­suit seeks to com­pel the agency to ful­fill its Clean Air Act oblig­a­tion to find that upwind states have failed to pro­duce plans to reduce nitro­gen oxide and smog pol­lu­tion in New Jer­sey and Con­necti­cut as required under the good neigh­bor” pro­vi­sion of the Act.

  • Jan­u­ary 2020

    In Jan­u­ary 2020, New York Attor­ney Gen­er­al James and Con­necti­cut Attor­ney Gen­er­al Tong filed a law­suit against the EPA in fed­er­al dis­trict court in New York for fail­ing to ful­fill its oblig­a­tion under the Clean Air Act to crack down on upwind sources that con­tribute to New York and Connecticut’s non­com­pli­ance with ozone stan­dards. The law­suit notes that the D.C. Circuit’s Octo­ber 2019 rul­ing that vacat­ed the EPA’s Decem­ber 2018 rule means that the agency is now in vio­la­tion of the June 2018 order from the fed­er­al dis­trict court in New York that the agency pro­mul­gate plans to reduce ozone pol­lu­tion from upwind states. The attor­neys gen­er­al are seek­ing to have the court instruct the EPA to per­form its manda­to­ry duty to pro­mul­gate fed­er­al plans for the upwind states to com­ply with their oblig­a­tions under the Clean Air Act’s good neigh­bor provision.

  • Feb­ru­ary 2020

    In Feb­ru­ary 2020, New Jer­sey Attor­ney Gen­er­al Gre­w­al led a coali­tion of five states, includ­ing Con­necti­cut, Delaware, Mass­a­chu­setts, and New York, in fil­ing a law­suit against the EPA in fed­er­al dis­trict court in New York. The attor­neys gen­er­al assert­ed that the EPA failed to take action on the prob­lem of upwind pol­lu­tion despite the Novem­ber 2019 man­date order­ing the EPA to imple­ment a rem­e­dy under the good neigh­bor pro­vi­sion. The attor­neys gen­er­al request­ed the court declare the EPA in vio­la­tion of the Clean Air Act for its fail­ure to act on upwind pol­lu­tion and to order the EPA to issue com­plete fed­er­al plans to reduce emis­sions from upwind states.

  • July 2020

    In July 2020, the court ruled in favor of the five-state coali­tion, set­ting a March 2021 dead­line by which the EPA must pro­mul­gate final fed­er­al plans to reduce ozone emis­sions from upwind states.

  • Jan­u­ary 2021

    In Jan­u­ary 2021, the same coali­tion of five states led by New York Attor­ney Gen­er­al James again sued the EPA for fail­ing to act on good neigh­bor plans sub­mit­ted by upwind states. In their com­plaint, the states empha­sized that EPA’s fail­ure to take imme­di­ate action to ensure the upwind states cut air pol­lu­tion will pro­long harms to the health of their res­i­dents from high ozone lev­els. The coali­tion asked the court to find that EPA vio­lat­ed the Clean Air Act and to set a dead­line for EPA to act on the plans.

North­east Ozone Trans­port Region

2017-2021

Eight north­east­ern attor­neys gen­er­al, led by the New York Attor­ney Gen­er­al’s Office, are work­ing to expand the Ozone Trans­port Region (OTR), under Sec­tion 176A of the Clean Air Act, to include nine upwind states in the group of states that have to sub­mit state plans to the EPA for con­trol­ling ozone pol­lu­tants. In Novem­ber 2017, the EPA reject­ed the states’ 2013 peti­tion to expand the OTR. In Decem­ber 2017, the eight states filed a peti­tion for review of EPA’s rejec­tion of the peti­tion and abdi­ca­tion of its respon­si­bil­i­ty to enforce upwind air pol­lu­tion vio­la­tions with the D.C. Circuit.

In April 2019, the D.C. Cir­cuit declined to instruct EPA to expand the OTR, find­ing that EPA had act­ed with­in the agency’s dis­cre­tion under the Clean Air Act in reject­ing the states’ 2013 peti­tion to expand the OTR.