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AG's from New Jersey, New York and Others Suing EPA Over Pollution from Other States


The attorneys general of New York, New Jersey and three other states are accusing the U.S. Environmental Protection (EPA) of violating the Clean Air Act by not addressing pollution that is coming from other states. Download copy

The lawsuit filed in U.S. District Court in New York is asking the court require the EPA to propose and adopt a plan addressing the problem and set a specific date.

New Jersey is leading the lawsuit that also includes Connecticut, Delaware, Massachusetts and New York City.

The governments say upwind sources from Illinois, Michigan, Ohio, Pennsylvania, Virginia and West Virginia are creating ground-level ozone filled with harmful nitrogen oxide that can cause coughing, throat irritation and lung damage, according to a statement from New York Attorney General Letitia James. People with asthma, bronchitis and heart disease may have additional problems because of the pollution.

The lawsuit also contends that the EPA’s failure to address the issue “places unfair economic and administrative burdens on certain Plaintiff states.”

James said the EPA is refusing to address the problem and the pollution is going unaddressed.

“The transport of air pollution from upwind states continues to threaten the health and safety of New Yorkers,” James said.

New Jersey Attorney General Gurbir Grewal said it’s time for the EPA to “live up to its legal duty.”

“We already beat EPA in court and won an order demanding the federal government tackle out-of-state pollution, and yet EPA still did not act,” Grewal said in a statement. “Enough is enough: this is a serious environmental and public health problem, and it demands a serious response from Washington.”

The EPA, in a news release, stated that 2019 data showed significant decreases in pollutants from power plants.

“Under President [Donald] Trump, our economy continues to grow, and we are enjoying ever-improving air quality,” said EPA Administrator Andrew Wheeler said. “Through state and federal fulfillment of the Clean Air Act, as well as advances by the power sector, we have seen significant reductions in key pollutants. Notably, annual emissions of [sulfur dioxide] from the power sector fell 23 percent and are below 1 million tons for the first time in modern history.”

The EPA also noted declines in pollutant levels from nitrogen oxides, carbon dioxide and mercury.

"The annual data show a 23 percent decline in [sulfur dioxide] emissions compared to 2018, a 14 percent decline in [nitrogen oxide] emissions, an 8 percent decline in [carbon dioxide] emissions, and a 13 percent decrease in [mercury emissions] emissions," the news release said. "Additionally, ozone season [nitrogen oxide] emissions dropped by 13 percent. During this time period, electric generation from these power plants decreased by 3 percent."

The states have successfully sued the EPA before, but the federal Court of Appeals for the D.C. Circuit ruled last October that the agency’s proposed solution was inadequate and invalid and the agency breached its duty to hold the upwind states accountable.

The court ruled again in November the EPA should develop a solution under the “Good Neighbor Provision” of the Clean Air Act. The EPA has not done so, the complainants said in their lawsuit.

The attorneys general say the court must rule before the 2020 ozone season begins in May. They are asking the court to create a federal plan for each of the upwind states and award the plaintiff’s the cost of the attorney’s fees.

“EPA’s failure to take immediate action will prolong harms to the state plaintiffs and the health of our residents from high ozone levels, and foreclose the ability of plaintiff states to demonstrate attainment of the 2008 NAAQs by the July 2021 deadline,” the attorneys general say in their lawsuit.

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