February 19, 2020
Corporation Counsel James E. Johnson announced today that New York City has joined a federal lawsuit against the U.S. Environmental Protection Agency (EPA) over its failure to act – despite a court mandate -- on the problem of air pollution from upwind states that is fouling New York City’s air and preventing New York State from achieving compliance with federal Clean Air Act standards.
Filed in U.S. District Court in New York, the lawsuit asks the court to declare EPA in violation of the Clean Air Act for not taking action on the upwind pollution problem affecting New York and other states in the region, and to order the agency to propose and adopt completed federal plans for doing so by specific dates.
Led by the state of New Jersey, the legal effort is joined by the states of New York, Connecticut, Delaware and Massachusetts, along with the City of New York.
“The quality of the air we breathe in New York is directly connected to tall stacks of power plants of the Midwest,” said Corporation Counsel James E. Johnson. “Their pollutants are carried by powerful winds into New York City. These pollutants affect us all, including children with asthma and individuals with heart disease. They are most vulnerable. EPA has not held those Midwestern states accountable for failing to regulate these industries. The court should compel EPA to enforce the law. When EPA turns its back on New Yorkers, the City of New York will vigorously protect them and the common good.”
“Every New Yorker deserves to breathe clean air,” said Daniel Zarrilli, NYC’s Chief Climate Policy Advisor. “While the Trump administration continues to undermine environmental protections, New York City is fighting back to ensure that our residents don’t suffer from poor air quality and health burdens caused by out-of-state air pollution.”
Ground-level ozone is a harmful air pollutant formed by the atmospheric reaction of certain ozone “precursors,” --most notably nitrogen oxide (NOx) -- in the presence of sunlight. Breathing ozone can cause coughing, throat irritation, lung tissue damage, and can aggravate such conditions as asthma, bronchitis and heart disease.
At issue in the case is upwind pollution migrating into New York State -- as well as similarly-situated states in the northeast – from seven upwind states that is preventing the states from attaining and/or maintaining 2008 ozone National Ambient Air Quality Standards (NAAQS). The upwind states are Illinois, Indiana, Michigan, Ohio, Pennsylvania, Virginia and West Virginia.
In October 2019, the federal Court of Appeals for the D.C. Circuit vacated an existing EPA remedy to the upwind pollution problem on grounds that it was inadequate and invalid, and held that EPA was essentially in breach of its duty to hold upwind polluter states accountable.
In November 2019, the court ordered EPA to develop and implement a remedy under the “Good Neighbor Provision” of the Clean Air Act. Despite that mandate, EPA has failed to take any action by releasing updated federal implementation plans as required.