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Schneiderman sues EPA over out-of-state air pollution

STAFF REPORTS


NEW YORK – Attorney General Eric T. Schneiderman announced that New York and Connecticut today filed a lawsuit against the Trump Administration for violating the federal Clean Air Act by failing to curb ground-level ozone (or "smog") pollution that blows into New York from upwind states. This lawsuit is the latest action in a multi-pronged initiative by Attorney General Schneiderman to force the Trump Environmental Protection Agency (EPA) to fulfill its obligations under the Clean Air Act to reduce upwind sources of air pollution that threaten the health of millions of New Yorkers. 

At least one in three New Yorkers breathe air with unhealthy levels of smog pollution, with some analyses placing it as high as two in three New Yorkers (approximately 12.7 million people). EPA's own studies demonstrate that pollution from states upwind of New York contributes substantially to the state's dangerous smog problem. 

"Millions of New Yorkers breathe unhealthy air due to smog pollution, much of which blows into New York from upwind states," said Attorney General Schneiderman. "Yet the Trump EPA continues to ignore its responsibilities under the Clean Air Act to reduce interstate smog pollution. Since the Trump EPA refuses to follow the law, we're suing to protect the health of New Yorkers."

"New York is once again taking aggressive actions to not only push forward our nation leading energy goals, but also protect our state from harmful air pollution." Governor Cuomo said. "With this action, we are sending yet another clear message to the federal government that when our environment is threatened, New York will step up at every turn to protect our most vital resources for future generations."

"Connecticut has robust regulations in place to protect clean air," said Connecticut Attorney General George Jepsen. "But as a downwind state, Connecticut suffers from poor air quality as pollutants from other states enter our atmosphere. The EPA has a responsibility to regulate these out-of-state pollutants, like ozone, yet the EPA has failed to do so. Today, we are partnering with New York in litigation seeking to compel EPA to do its job and protect Connecticut's air quality from out-of-state ozone sources."

"To safeguard our natural resources and protect public health, New York has some of the nation's most stringent air quality standards," said Department of Environmental Conservation Commissioner Basil Seggos. "But EPA's failure act responsibly and require upwind states to limit their pollution leaves our state with little recourse but to further reduce pollution from New York sources. For the sake of our community's health, we're calling on EPA to act."

New York has some of the strictest air quality regulations in the country and pollutants that cause smog – such as nitrogen oxides (NOx) and volatile organic compounds (VOCs) – are well controlled within the state. In fact, New York has among the lowest emissions of NOx and VOCs in the country. Despite New York's extensive efforts to combat smog pollution, the New York City metropolitan area has struggled for years to meet the federal health standard for smog and – according to a 2017 America Lung Association report – it is the ninth most smog-polluted area in the nation.

The EPA has concluded that there are a number of dangerous health impacts associated with elevated levels of smog, including lung tissue damage, and aggravation of existing conditions, such as asthma, bronchitis, heart disease, and emphysema. Exposure to smog is also linked to premature death. Some groups – including children, the elderly, and those with existing lung diseases like asthma – are at especially heightened risk from smog pollution.

The "Good Neighbor" provision of the federal 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. The 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 August 12, 2015, the EPA determined that the planned actions of 24 states, including several states upwind of New York (Illinois, Michigan, Pennsylvania, Virginia, and West Virginia), would not sufficiently and collectively reduce pollution emissions to ensure that federal smog health standards could be met and sustained in New York. This determination triggered a two-year deadline under the Clean Air Act – ending August 12, 2017 – for the EPA to adopt FIPs for these upwind states. Despite this statutory deadline, the EPA has to date failed to adopt these legally-mandated plans.   

The Clean Air Act requires parties to provide the EPA notice of their intention to sue the Agency under the Act. On October 26, 2017, Attorney General Schneiderman informed EPA Administrator Scott Pruitt that, unless the Agency fulfilled its mandatory duty under the Good Neighbor provisions of the Act to protect New Yorkers from smog pollution within 60 days, he would sue to compel the EPA to fulfill that duty.

Today's lawsuit follows a successful lawsuit New York brought concerning EPA's failure to issue a FIP for Kentucky's Good Neighbor provision obligations under the 2008 ozone standard by the statutory deadline. In May 2017, a federal court denied a Trump EPA request for an additional 20-month delay in issuing the FIP and ordered EPA to act by June 30, 2018.

Smog is not emitted directly into the air, but forms when other pollutants, such as NOx and VOCs, react in the presence of sunlight. NOx and VOCs can travel hundreds of miles after they are emitted. The EPA has recognized for decades the regional nature of the smog, and that pollution from power plants, motor vehicles, factories, refineries, and other emission sources located in multiple upwind states contributes to downwind states' smog problems. Because of this, the EPA has long known that downwind states cannot solve their smog problems on their own, and that reducing smog in downwind states such as New York requires upwind states to reduce their "interstate transport" of smog pollution.

Attorney General Schneiderman has filed several other lawsuits to address upwind emissions of air pollution that threatens the health of New Yorkers, including:
New York and Connecticut filed today's lawsuit in the United States District Court, Southern District of New York.

This matter is being handled for the Attorney General's Environmental Protection Bureau by Assistant Attorney General Claiborne Walthall, Affirmative Section Chief Morgan A. Costello, and Senior Counsel Michael J. Myers. The Bureau is led by Bureau Chief Lemuel M. Srolovic and is part of the Division of Social Justice, which is led by Executive Deputy Attorney General for Social Justice Matthew Colangelo.