Federal judge: EPA responsible for New York smog

The Gavin Power Plant on the Ohio River in Cheshire, Ohio, is fired by coal. (Photo provided — Wikimedia Commons)

A federal court has ruled in favor of a state lawsuit against E. Scott Pruitt, head of the U.S. Environmental Protection Agency, for failing to enforce the Clean Air Act.

In January, New York and Connecticut jointly sued the EPA in a lawsuit separate from one filed to the same purpose by the Adirondack Council and a half-dozen other states. The two states charged that they are failing to meet clean air standards because of pollution originating in other states.

U.S. District Court by Judge John Koeltl found for the plaintiffs in State of New York and State of Connecticut v. Pruitt and the U.S. EPA. He ordered the EPA comply with the Clean Air Act’s requirement to address smog pollution from upwind states — that is, in its role as a federal agency, the EPA must require West Virginia, Virginia, Illinois, Michigan and Pennsylvania to abide by the “Good Neighbor Provision” that holds them responsible for air pollution that causes New York and Connecticut to fail air quality standards.

The requirements, set by the EPA in 2008, set national air quality standards for ground-level ozone at 70 parts per billion (ppb) averaged over eight hours. Ground-level ozone is created when pollutants emitted by cars, heavy industries and other sources chemically react in the presence of sunlight. The main culprit in “smog,” this ground-level ozone can damage the lungs of infants, people with asthma and even healthy people exposed to it. It is also toxic to trees, such as black cherry, tulip poplar, quaking aspen and white pine.

In its 2016 “State of the Air” report, the American Lung Association urged the EPA “to adopt stronger limits on transported ozone pollution to help downwind states protect their citizens from pollution blown hundreds of miles across the nation.”

New York Attorney General Barbara Underwood released the following statement: “As many as two in three New Yorkers are breathing unhealthy levels of smog. The court’s decision is a major win for New Yorkers and our public health, forcing the Trump EPA to follow the law and act to address smog pollution blowing into New York from upwind states.”

According to the ruling, the agency must come up with an implementation plan by June 29 and act on the plan by Dec. 6.

Pruitt’s side admitted the EPA failed to meet deadlines to produce and publicize implementation plans, and agreed that the agency must sign and disseminate a notice of proposed actions by June 29. The court further awarded the plaintiffs the costs of litigation. The defendants further argued that they weren’t legally bound to publicize the plans for action, although they had done so before by posting notices to the EPA website.

The court found “there is no reason why the EPA should not be required to follow that typical practice here, especially when they have agreed it is feasible for them to do so.”

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