States Tell EPA to Lift the Haze in CAA Complaint for Failure to Act on State Smog Prevention Plans

The Environmental Protection Agency (EPA) and its administrator Andrew R. Wheeler are under fire in a lawsuit alleging they let obligations governing ozone, an airborne pollutant and principal component of smog, lapse. Plaintiffs New York, Connecticut, Delaware, Massachusetts, New Jersey, and the City of New York contend that the EPA has failed to timely act on a number of plans submitted by “upwind” states, or those whose ozone pollution blows downwind within the plaintiff states’ borders, harming the downwind states’ populations and environment and impairing their ability to meet federal air quality standards.

The plaintiffs explained that under the Clean Air Act (CAA), states must comply with National Ambient Air Quality Standards (NAAQS) for ozone. The complaint states that the upwind states, Indiana, Kentucky, Michigan, Ohio, Texas, and West Virginia, must create State Implementation Plans (SIPs) that set forth how the state will eliminate unlawful quantities of pollution transported downwind. The SIP is then submitted to the EPA for approval or rejection within a statutorily mandated 12-month timeframe, under the NAAQS’s “Good Neighbor Provision.” If the EPA disapproves of a SIP, it must step in and craft a federal plan for that state within a set timeframe.

However, the plaintiffs contended, the EPA has not approved or disapproved of a number of upwind states’ SIPs. The resultant harm, they contend, is two-fold. First, the upwind states’ air pollution prolongs harm to the plaintiff states’ residents from high ozone levels, and second, it forecloses the states’ ability to meet ozone attainment levels by the statutory deadline. In turn, the plaintiffs seek a court order declaring the EPA to be in violation of the CAA, requiring the EPA to make its overdue SIP decisions, and awarding the states their attorneys’ fees and costs.

The states are represented by their attorneys general and New York City by the Corporation Counsel of the City of New York.