Smog-Forming Pollution from Upwind States

Washington, D.C. — State attorneys general from three states have filed two separate lawsuits against the Environmental Protection Agency (EPA) for failing to uphold its responsibility under the Clean Air Act to protect residents of New York, New Jersey and Connecticut from ground-level ozone pollution, commonly known as smog. The Clean Air Act’s “good neighbor” provision requires that EPA impose restrictions on power plants and other pollution sources in upwind states that are creating unhealthy conditions in downwind states like New York, New Jersey and Connecticut.

Despite strict state regulations against smog-causing pollution, all three states have been unable to meet federal standards as a result of pollution blowing in from other states. The concern of the states goes beyond legal noncompliance as smog is a serious health hazard that is linked to tens of thousands of deaths annually and is especially harmful for people with respiratory conditions such as asthma.

A suit filed by New York Attorney General Letitia James and New Jersey Attorney General Gurbir S. Grewal, seeks to overturn EPA’s denial earlier this month of New York’s 2018 petition that asked EPA to find that, under the “Good Neighbor” obligations of the Clean Air Act, power plants in nine states were significantly contributing to the state’s inability to satisfy smog standards, or were interfering with the state’s ability to remain in compliance with smog standards.

“More than two-thirds of New Yorkers regularly breathe unhealthy air due to interstate smog pollution, yet the EPA continues to ignore the Clean Air Act,” said New York Attorney General Letitia James. “We will not remain idle when a federal agency called the ‘Environmental Protection Agency’ routinely refuses to protect the environment or the health of millions of people. My office will use every legal tool at our disposal to force the EPA to do its job and reduce pollution.”

A second suit, filed by New Jersey Attorney General Gurbir S. Grewal and Connecticut Attorney General William Tong, seeks to compel EPA to fulfill its legal obligation under the Clean Air Act to find that two states — Pennsylvania and Virginia — have failed to produce plans, as required by law, to address the nitrogen oxide pollution from their states that contributes to smog in New Jersey and Connecticut. EPA is currently seven months late in making this finding.

Following this finding, a two-year period would commence for EPA to issue a plan to address the delinquent states’ legal obligations to reduce the smog-forming pollution that drifts into New Jersey and Connecticut. The suit points out that “the longer EPA waits to issue these findings, the longer [EPA’s smog plan] is delayed, and the longer State Plaintiffs will suffer from high ozone levels caused in part by upwind air pollution.”

“Out-of-state power plants continue to operate without any regard for the ozone they’re introducing to New Jersey’s air and the health and safety consequences that follow for our residents and children,” said New Jersey Attorney General Grewal. “EPA is responsible for keeping us safe from this kind of harm, but the agency has fallen down on the job. So we’re taking them to court — in two lawsuits filed on the same day — to force them to take the ozone problem seriously. The Clean Air Act demands nothing less.”

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About the State Energy & Environmental Impact Center:
The State Energy & Environmental Impact Center at NYU School of Law is a nonpartisan academic center at NYU School of Law. The Center is dedicated to working towards a healthy and safe environment, guided by inclusive and equitable principles. The Center studies and supports the work of state attorneys general (AGs) in defending, enforcing, and promoting strong laws and policies in the areas of climate, environmental justice, environmental protection, and clean energy.