Lawsuit takes aim at interstate air pollution

By: Timothy B. Wheeler for BayJournal.com

In a case with ramifications for the Chesapeake Bay, environmental groups have joined with several Northeastern states to challenge the lack of federal action to reduce interstate air pollution.

About a third of the nitrogen fouling the Chesapeake Bay's water comes from the air. (dori@merr.info, Creative Commons Attribution-Share Alike 3.0 United States)
About a third of the nitrogen fouling the Chesapeake Bay’s water comes from the air. (dori@merr.info, Creative Commons Attribution-Share Alike 3.0 United States)

Earthjustice filed a lawsuitJan. 30 with four other environmental groups, asking the U.S. Court of Appeals for the District of Columbia to review the U.S. Environmental Protection Agency’s decision not to order a curb on power plant emissions from inland states that contribute to unhealthful smog in East Coast states like Maryland, New York and Delaware.

The Chesapeake Bay Foundation joined the lawsuit, noting that by Bay Program estimates about a third of the nitrogen fouling the Bay’s water comes from the air. Two thirds of that is in the form of nitrogen oxides — much of it from power plants outside the six-state Bay watershed — while the rest is believed to come from ammonia gas largely emitted by animal farming operations within the region.

Also joining in the lawsuit were Downwinders at Risk, the Appalachian Mountain Club and the Sierra Club.

The same day the environmental groups sued, New York state, New York city and five other states, including Maryland and Delaware, filed a separate lawsuit challenging the EPA’s decision. The other states were Connecticut, Massachusetts and New Jersey.

“The Clean Air Act requires EPA to limit air pollution crossing state lines,” said Jon Mueller, the Bay Foundation’s vice president for litigation. “By ignoring the ‘good neighbor’ provision of the Clean Air Act, EPA is exacerbating climate change, harming human health and damaging water quality.”

The court filings are the latest in a series of legal maneuvers by mid-Atlantic and New England states attempting to get the EPA to address interstate air pollution that they contend is affecting the health of their residents. Maryland, for instance, says that its air monitoring has found that up to 70 percent of the nitrogen oxides causing ozone pollution in the Baltimore and DC areas comes from out of state.

Charles McPhedran, a staff attorney with Earthjustice, said that the EPA has been wrestling with how to resolve interstate air pollution since the late 1990s. The agency proposed a regulation to deal with it in 2005, only to have upwind states and the power industry successfully challenge it in court. In 2011, he said, federal regulators developed a new cross-state air pollution rule, but they acknowledged at the time that it would not be enough to fix the problem.

In 2013, Maryland and eight other states formally petitioned the EPA to expand the number of states required to jointly reduce ozone-forming pollution affecting the Northeast and mid-Atlantic. The states said to be contributing to East Coast smog with long-range transport of nitrogen emissions include Illinois, Indiana, Kentucky, Michigan, North Carolina, Ohio, Tennessee and West Virginia.

The EPA denied that petition in November 2017, a decision that the states also have taken to court. The agency said then that there were other, better ways to deal with interstate air pollution, including the “good neighbor” provision in the Clean Air Act, which was meant to address emissions that drift across state lines.

But last June, the EPA announced that it proposed to take no action, saying that smog-forming emissions are already on their way down as a result of earlier regulatory actions. The agency projected that by 2023 ozone levels in the Eastern states would no longer violate EPA standards. It proposed to revisit the issue then.

States and environmental groups objected, questioning the EPA’s projections and saying that federal law requires action now to address continuing unhealthful air. In December, despite those objections, the EPA finalized its decision, prompting the lawsuits.

Earthjustice noted that by the EPA’s own data, more than 100 million people live in counties that fail to meet ozone health limits. Ozone exposure above and even below the EPA’s health standard has been linked with chronic respiratory diseases like asthma, scarring of the lungs and premature death, and is particularly harmful to children.

“EPA is just kicking the can down the road,” Earthjustice’s McPhedran said, “and putting off their obligations with these decisions.”

Maryland has a separate legal dispute with the EPA seeking federal action against 19 power plants in five other states that it contends are responsible for generating long-distance pollution affecting its residents. In a petition filed in 2016, Maryland officials said the power plants have installed controls that prevent harmful emissions but often don’t use them on hot days, when nitrogen oxides combine with other chemicals in the air to form ozone, also called smog.

The EPA denied the two states’ petition on that issue as well, and Maryland filed suit in October 2018.

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