Law Street Media

New York Wins Appeal in EPA Air Quality Case

Smoke rising from industrial buildings.

Smoke from the power station

The State of New York won an appeal before the D.C. Circuit after the state sought to overturn the Environmental Protection Agency’s (EPA) decision to not prevent transient air pollution from surrounding states from entering state borders.

In the associated opinion published on Tuesday, D.C. Circuit Judge Millett held that the EPA’s denial of the plaintiff’s petition to stop sources of interstate air pollution via ozone in nine states was arbitrary and capricious. According to Judge Millett, the EPA denied the request for intervention by concluding that New York failed to prove an air quality problem without a clear explanation as to why.

However, the judge pointed out that the defendant’s assertion that a lack of evidence existed to support New York’s claim that outside states contributed to intrastate ozone pollution was puzzling. The EPA itself previously had labeled the plaintiff-state as having issues with serious nonattainment of agency-developed “National Ambient Air Quality Standards” (NAAQS) due to, in large part, influence by hundreds of sources outside the state.

NAAQS requires states to prove they release no more than 70 parts of ozone per billion by 2021. If a state is downwind of a state allegedly containing sources of air pollution that interferes with the ability to meet NAAQS requirements, the receiving-state of the ozone may petition the EPA to enjoin the ozone’s sources. The petition must identify the locations of air pollution and, if the EPA (following a hearing) agrees, the agency must stop the pollution source within three months.

The court concluded that the state provided evidence of outside ozone sources and its impact on the inability of New York to comply with NAAQS, yet the EPA simply kept changing the level of evidence required to necessitate agency involvement. The EPA, for example, proffered that intervention proved unnecessary as, despite air pollution from outside sources, the plaintiff could meet NAAQS by 2023. This, the court determined, is simply not the law. The EPA must examine the petition under the statute (and associated regulations), not the “convoluted and seemingly unworkable showing it demanded of New York’s petition.” As such, the court ruled that the “EPA’s…explanation of New York’s purported failure to carry its burden of proof–and even what the burden is–falls short of reasoned decisionmaking…[as] an agency acts arbitrary and capriciously when it offers unreasoned justifications for a decision.”

The appellate panel vacated the EPA’s denial of the petition, reinstated the plaintiff’s previous petition, and remanded for the EPA to properly review the petition under the standards laid out in the opinion. 

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