EPA Agrees to Enforce State Air Quality Plans to Protect Downwind States

In a letter to the Southern District of New York filed on Thursday, the U.S. Environmental Protection Agency announced that it reached a settlement in a lawsuit alleging that it is not doing enough to keep states accountable under the Clean Air Act, and allowing downwind pollution to affect other states.

The lawsuit was filed in January by New York, Connecticut, Delaware, Massachusetts, New Jersey, and New York City. They claimed that the EPA should have acted on plans submitted by “upwind states” whose ozone pollution is distributed by the wind into their jurisdictions, making it harder for them to reach federal air quality standards. Additionally, the states alleged that the EPA’s delay was causing them to have reduced air quality leading to negative health impacts.

The states related that under the Clean Air Act each state must adhere to 2015 National Ambient Air Quality Standards and establish a State Implementation Plan which the EPA must approve within 12 months. If the plan is rejected, the EPA must create a federal plan for the state.  Reportedly, the EPA had not done this for various upwind states including Indiana, Kentucky, Michigan, Ohio, Texas, and West Virginia.

Under the settlement, the EPA agreed to conduct the reviews for the downwind neighboring states, within specific deadlines.  It cited the “good neighbor provision” of the Clean Air Act which requires it to take action. It will need to either approve or disprove the proposed state plans before April 30, 2022 or if it signs a proposal by the end of February, it will have until December 14, 2022 to take final action of good neighbor submissions.

The letter explained that the parties reached the settlement earlier this month and that the consent decree, which is subject to a public comment process, is now available in the Federal Register. The settlements’ approval will continue after the public comment period ends on August 30, and the letter proposed that the parties file a status report by September 10.