Clean Air Act and Upwind Pollution

A large smokestack at a power plant, with a huge plume of grey emissions.

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.

Connecticut

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

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.

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.

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.

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.

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. 

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.

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

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.

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.

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. 

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

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. 

In October 2017, New York sent EPA a notice 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.

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.

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. 

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.

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.  

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.

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. 

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.

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

Additionally, 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.