Attorney General Grewal Leads Multi-State Lawsuit Against EPA Over Continued Failure, Despite Court Ruling, to Address Ozone Pollution from Upwind States

TRENTON – Acting to force the hand of a nonresponsive Environmental Protection Agency (EPA), Attorney General Gurbir S. Grewal today filed a lawsuit on behalf of five states and the City of New York over EPA’s failure – despite a court mandate – to address the ozone pollution that is coming in from upwind states and harming New Jersey’s residents.

Ozone pollution—caused largely by nitrogen oxide (NOx) emissions—can damage the lining of the lungs and lung tissue, and can aggravate asthma. Children and individuals with respiratory conditions are particularly susceptible. Even though New Jersey has some of the strictest limits on NOx in the United States, EPA deems some counties out of compliance with federal standards for ground-level ozone due to emissions from coal burning power plants and other pollution sources in other states.

“Today’s lawsuit is not the first time that we have called on EPA to address the ozone pollution that is harming New Jersey’s children and our health, and it’s time for EPA to live up to its legal duty,” said Attorney General Grewal. “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. Enough is enough: this is a serious environmental and public health problem, and it demands a serious response from Washington. I am proud to lead my colleagues in continuing this fight.”

“Air pollution doesn’t stop at state borders. It requires teamwork and federal leadership to promote the goals of the Clean Air Act,” said Department of Environmental Protection (DEP) Commissioner Catherine R. McCabe. “The EPA’s failure to propose new federal implementation plans under the Clean Air Act isn’t just a violation of the law, it puts the quality of our air and the health of New Jerseyans at risk. I am pleased that other states are joining New Jersey’s legal advocacy on behalf of our residents.”

Although EPA has a responsibility under the “Good Neighbor Provision” of the Clean Air Act to prohibit air pollution in one state that significantly contributes to non-attainment of air quality standards in other states, it has not done so for ozone pollution. Among other things, EPA is required to make a formal finding that the offending states have failed to submit compliant plans to address their emissions, and then – within two years – impose a federal plan to govern the offending emissions from those states.

In 2016, EPA stated that it would require emissions reductions from states upwind of New Jersey to reduce high ozone levels here. Under the Trump Administration, however, EPA reversed course and finalized a rule in 2018 that required no new reductions from upwind states.

New Jersey and the other states suing EPA today have previously filed successful suits calling for EPA to do more to address this problem, but EPA has nevertheless still refused to act. In October 2019, the federal Court of Appeals for the D.C. Circuit vacated the 2018 EPA rule, funding it inadequate and finding that EPA was essentially in breach of its duty to hold upwind states accountable. In November 2019, the court sent the defective 2018 rule back to EPA for a re-do under the “Good Neighbor Provision.” Despite the court’s mandate, EPA has yet to propose any new federal plans for reducing upwind emissions as required.

Today’s lawsuit, filed in the in U.S. District Court for the Southern District of New York, seeks to require EPA to issue the new plans that courts have previously demanded.

In particular, the suit asks the court to declare EPA in violation of the Clean Air Act for not taking action on the upwind pollution problem that is still affecting New Jersey and other states in the region, and to order the agency to propose and adopt federal plans that limit upwind states’ emissions by specific dates.

In addition to lead state New Jersey, the states of New York, Connecticut, Delaware and Massachusetts, along with the City of New York, have joined today’s lawsuit.

The matter is of particular urgency, the suit notes, because the 2020 ozone season begins in May, less than three months from now. EPA’s failure to take immediate action will prolong harms to the state plaintiffs and the health of our residents from high ozone levels.

2020 also represents the final year for federal monitoring to determine if New Jersey is in ozone level compliance under EPA’s latest attainment schedule. Failure to achieve compliance, even based on out-of-state pollution, could result in New Jersey being downgraded to a federal “Severe Nonattainment” designation. That could in turn require DEP to impose new, more stringent control measures on industry within the state to compensate for unchecked harms caused by upwind states.

Today’s lawsuit lists the states of Illinois, Indiana, Michigan, Ohio, Pennsylvania, Virginia and West Virginia as upwind states “that contribute significantly” to New Jersey’s non-attainment of federal 2008 ozone National Ambient Air Quality Standards.