TRENTON – Today Attorney General Gurbir S. Grewal filed two lawsuits to force EPA to impose tougher limits on the air pollution from hundreds of out-of-state industrial sources that contribute to high ozone levels in New Jersey and across the northeast.

Although the Clean Air Act (CAA) requires states to act as “good neighbors” by controlling air pollution that significantly contributes to the air quality problems in other states, many states have taken little or no action to meet their obligations when it comes to nitrogen oxides (NOx) – a key contributor to ozone pollution. Even though New Jersey has some of the strictest NOx limits in the United States, EPA deems some New Jersey counties out of compliance with federal ozone standards due to emissions coming in from upwind states, especially from coal-burning power plants.

Today’s lawsuits seek to require more action from EPA to solve this problem. The first lawsuit, filed in the D.C. District Court on behalf of New Jersey and Connecticut, seeks an order requiring EPA to find that multiple states failed to submit plans to address their ozone pollution contributions to New Jersey, and to start the clock for EPA to issue a pollution plan for these delinquent states. The second, filed in the D.C. Circuit on behalf of New York and New Jersey, seeks to require EPA to impose direct pollution limits on more than 300 out-of-state industrial sources in nine upwind states whose air pollution significantly contributes to high ozone levels in New Jersey.

“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 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.”

“New Jersey has a long history of taking steps to control air pollution from facilities within its own borders and taking legal action to reduce emissions from power plants in other states,” said Department of Environmental Protection Commissioner Catherine R. McCabe. “It is unconscionable for the Trump Administration to fail to require these states to implement readily available emissions controls that would protect public health and the environment.”

Despite having some of the strictest in-state NOx limits, New Jersey has been unable to meet federal ozone standards due to NOx emissions blowing downwind from upwind states to the south and west. This is a serious concern for New Jersey officials, because ozone pollution can (among other things) damage the lining of lungs, reduce lung function, and aggravate asthma. Children and individuals with respiratory conditions are particularly susceptible to the effects of ozone.

Under the CAA, upwind states are required to submit plans that show how they will regulate the sources of air pollution within their borders that contribute to a failure by the downwind states to meet a federal clean air standard. Where states fail to meet that obligation, the CAA requires EPA to take multiple actions to protect downwind states.

Two such actions are at issue here. First, EPA must make a finding that the states failed to submit CAA-compliant plans, and then – within two years – impose a federal plan to govern the offending emissions from those states. Second, the Act empowers EPA to set direct limits on such air pollution from specific power plants and other sources of air pollution. EPA has failed to fulfill either of these duties.

First Lawsuit – D.C. District Court

This action, which Attorney General Grewal filed on behalf of New Jersey and Connecticut, seeks to require EPA to make a finding that two states – Pennsylvania and Virginia – failed to submit CAA-compliant plans. This finding will then trigger a requirement that EPA implement its own plan to reduce NOx emissions from those states that contribute to New Jersey’s ozone nonattainment.

As the complaint alleges, EPA issued new rules in 2015 governing the limit for ground-level ozone (known as national ambient air quality standards (NAAQS)). Within three years, all states needed to submit plans to prohibit in-state emissions of pollutants in amounts that contribute significantly to another state’s nonattainment of any NAAQS. No later than six months after that, EPA had to determine whether states have submitted sufficient plans.

Although EPA modeling shows that NOx pollution from Pennsylvania and Virginia contributes significantly to the ozone problem in New Jersey, these states (among other states) have still not submitted plans to address this. EPA’s deadline to find that states did not submit “Good Neighbor” plans was April 1, 2019, but EPA has still not acted.

New Jersey’s complaint seeks an order that EPA is violating its statutory obligation to issue failure-to-submit findings for these two states, and requiring EPA to make these findings without further delay. This finding will trigger that two-year period for EPA to impose its own plan addressing these NOx emissions.

Second Lawsuit – D.C. Circuit Court

At the same time, New Jersey has joined a lawsuit with New York seeking an order requiring EPA to set direct limits on NOx emissions blowing into the region from approximately 360 industrial sources of air pollution.

Section 126 of the Clean Air Act gives a state the authority to ask EPA to set emissions limits for specific sources of air pollution in other states that significantly contribute to nonattainment with pollution standards in their state. In this case, New York filed a petition demanding that EPA impose direct pollution limits on industrial sources in nine upwind states. About half of the industrial sources at issue are coal-fired power plants. The upwind states included Illinois, Indiana, Kentucky, Maryland, Michigan, Ohio, Pennsylvania, Virginia and West Virginia.

The Section 126 petition asked EPA to order the upwind sources to install and operate modern pollution control equipment – equivalent to the controls already required for similar industrial sources in New York and New Jersey. The petition also called on EPA to set stronger limits on out-of-state plants that have already installed modern pollution controls, but whose operators sometimes turn them off when the plant is operating.

Last month, EPA denied the petition. New York and New Jersey are challenging that denial in the D.C. Circuit. Among the arguments New York and New Jersey intend to advance are that EPA has arbitrarily withheld relief the downwind states are entitled to under Section 126, and that EPA’s refusal to act will continue to subject residents in both states to ozone levels that fail to meet federal standards.

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