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Adirondack Explorer

Thursday, June 14, 2018

Court tells E.P.A. to stop dragging its feet on smog controls

U.S. District Court ‘Troubled’ by E.P.A.’s Delays in Enforcing Tougher Emissions Standards

ELIZABETHTOWN, N.Y. – In twin victories for Adirondack Park and the Northeast, two U.S. District Courts have ordered the Environmental Protection Agency (EPA) to act on two petitions urging EPA to curb the air pollution that causes acid rain and smog here during the summer months.

Judges gave EPA until later this year to make a final decision in cases brought in Maryland and Connecticut federal courts.

“This is a victory for the lakes and forests of the Adirondacks and for everyone who wants clean air to breathe,” said Adirondack Council Executive Director William C. Janeway.  “Congress ordered EPA to take action on smog and acid rain long ago.  The current EPA Administrator Scott Pruitt has taken the unprecedented step of refusing to act.  We are pleased that the court has reminded him to obey the law.”

More than a year ago, the Adirondack Council, Environmental Defense and Chesapeake Bay Foundation joined the State of Maryland and others to petition EPA for relief from smog created by the 36 dirtiest coal-fueled power plants in the nation.  All of those power plant smokestacks are located in Midwest states.  The “good neighbor” provision of the Clean Air Act requires EPA to prevent smog created in one state from causing harm to residents of another state.

“EPA ignored that petition all of last summer,” said Janeway.  “EPA allowed the people of the Northeast to suffer from poor air quality for a large portion of 2017.  All that Administrator Pruitt had to do to prevent that suffering was to send a letter to the power plants, telling their owners to throw a switch.  That switch would activate their already-installed pollution control devices.  He refused.  He continues to refuse.  That’s why we were compelled to sue the EPA in the U.S. District Court in Baltimore.”

“We’d had enough of the Midwest’s second-hand smog and acid rain,” Janeway said. “It was time for EPA to protect the public and the environment.”

In January, New York joined Connecticut in filing a similar suit.  That was decided Wednesday as well.

On Wednesday, the U.S. District Courts for the District of Maryland and for the Southern District of New York ruled that EPA has been derelict in its duties under the Clean Air Act. In the Maryland decision, the court stated that it was “troubled by EPA’s apparent unwillingness or inability to comply with its mandatory statutory duties within the timeline set by Congress.” (Opinion, page 14)

The Maryland courts gave EPA three months to act on Maryland’s petition, which requests that EPA require that coal-burning power plants in five upwind states operate their pollution control equipment to reduce contributions to interstate pollution that causes dangerous smog levels in Maryland and other areas of the Northeast, depending on which way the wind is blowing.  The New York court required EPA to act on the Connecticut/New York petition by Dec. 6.

The 36 dirtiest coal-fired power plants in America affect air quality from Maryland to Maine, including the Adirondack Park.  Those plants are located in Indiana, Kentucky, Ohio, Pennsylvania and West Virginia.

Last week, EPA issued a notice proposing to deny Maryland’s petition and a similar petition from Delaware. The agency will accept public comment on that proposal until July 23, and will hold a public hearing on the proposal on June 22 in Washington, D.C.

The Adirondack Council and EDF agree that the proposed denial is flawed.  Both are preparing comments they plan to submit to the EPA urging it to fulfill its duties rather than continuing to delay.

            EDF’s legal team noted that Wednesday’s decision was the fourth time this year that a court has ordered EPA to stop delaying actions to reduce smog. The three earlier decisions were:

  • On February 7, a district court in Connecticut held that EPA had unlawfully delayed action on Connecticut’s petition for relief from the interstate pollution that contributes to unhealthy ozone levels.
  • On March 12, a U.S. District Court in California ordered EPA to move forward with implementation of the health-based 2015 Ozone Standards. Ground-level ozone is a key component in smog. EDF was also a party to that case.
  • On June 12, a federal district court in Manhattan found that EPA had violated statutory deadlines to issue plans to reduce interstate air pollution from five upwind states that causes unhealthy smog in New York and Connecticut.

Also, late last year EPA issued a rule delaying by a year its obligations to designate ozone attainment and nonattainment areas – only to withdraw the rule shortly after being sued in the D.C. Circuit by multiple states and environmental groups including EDF.

State-level air regulators across the Northeast have been struggling for decades to reduce smog and other dangerous pollution in the state, but its efforts have been undermined by the 36 coal-fired power plants that are supposed to be operating their pollution-control devices (electrostatic precipitators). The pollution from those plants is blowing across state borders, adding to smog problems in all Northeast states.

Original Complaint

In April of 2017, Maryland submitted a petition to EPA under section 126 of the Clean Air Act – a section that is a central part of the Act’s “good neighbor” provisions.  Those provisions are supposed to protect states from upwind air pollution originating in other states. Maryland’s petition asked EPA to require those power plant units to take the common sense step of running already-installed pollution controls. EPA ignored Maryland’s petition even though it is legally required to respond.

Established in 1975, the Adirondack Council is a privately funded not-for-profit organization whose mission is to ensure the ecological integrity and wild character of the Adirondack Park.  The Council envisions a Park with clean water and clean air, comprised of core wilderness areas, surrounded by farms and working forests, as well as vibrant communities.

The Adirondack Council carries out its mission through research, education, advocacy and legal action to ensure the legacy of the Adirondack Park is safeguarded for future generations.  Adirondack Council members live in all 50 United States.

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