Jilly Mehlman

Monday will be the last day for the Environmental Protection Agency to appeal a ruling that requires the bureaucracy to better regulate cross-state air pollution.

The lawsuit, led by the state of New York and joined by five other northeastern states including Connecticut, was filed in January. It challenged an EPA regulation known as the “Close-Out Rule,” which the agency issued in 2018. The Close-Out Rule stated that the agency did not need to take further action in regulating upwind states’ contributions to ozone emissions that travel downwind to Connecticut and other northeastern states — regulation which was required under a 2016 rule promulgated by the agency under the Obama administration.

At the beginning of October, the Court of Appeals in the District of Columbia ruled unanimously in the six states’ favor, deciding that the EPA must do more to address cross-state air pollution from 20 upwind states. When the court issued this decision, Connecticut Attorney General William Tong released a statement praising the ruling, calling it a “major victory for downwind states like Connecticut who rely on strong interstate regulation to protect our air quality.”

“We sit at the end of the tailpipe of the nation’s exhaust fumes, and without EPA action we are at the mercy of our country’s heaviest polluters,” the statement read. “Hopefully the EPA will now finally comply with the Clean Air Act and compel action to protect public health.”

But in the decision released earlier this month, the three-judge Court of Appeals panel wrote that it had been informed by the EPA that the agency may seek rehearing in the case, as well as the fact that it may seek rehearing in another case challenging its cross-state air pollution laws, “Wisconsin v. EPA.” The EPA’s deadline for appeal is Oct. 28 for both cases. In an email on Thursday, a spokesperson for the agency said that the EPA does not comment on ongoing litigation.

The EPA issued the Close-Out two years after its 2016 Cross-State Air Pollution Rule Update, which the agency itself acknowledged at the time was only a partial remedy that did not fully address its outstanding responsibilities under the Clean Air Act. The Wisconsin case challenges the 2016 law — not the Close-Out Rule — though Charles Rothenberger, a climate and energy attorney at the Connecticut Fund for the Environment, described the two as companion cases that are “essentially vacated on the same grounds.”

Connecticut is currently out of compliance with the EPA’s ozone emissions standards. And according to the Connecticut Department of Energy and Environmental Protection, more than 90 percent of ozone levels in southwest Connecticut, and more than 80 percent in the rest of the state — two regions that lie in different EPA non-attainment zones — result from pollution that originates outside of the state.

Connecticut has a 2021 deadline to attempt to show compliance with the ozone standards, said Rothenberger. However, he added, the federal rules would have given the upwind states until 2023 to adjust their own standards.

“Those standards need to be aligned,” Rothenberg said.

“You don’t control your own airshed,” Robert Mendelsohn, a professor at the School of Forestry and the School of Management, told the News in an interview. Mendelsohn noted that emissions in one place can have wide-reaching effects elsewhere.

While the lawsuits are “edging us towards paying attention to things we’re not doing properly,” Mendelsohn said, “we’re still not paying attention to location.”

Mendelsohn said that he did not think the lawsuits were on target, in part because the concentration of pollution is most harmful closer to the source, and because the lawsuits focus primarily on rural emissions. Though emissions from the twenty upwind states do pollute Connecticut’s air, emissions from closer to home, he said, were more important when considering air pollution. He noted that because Connecticut is directly downwind from the New York metro area, it receives significant pollution from the city. Ideally, Mendelsohn added, areas and counties with the highest potential to cause damage would have the most strictly regulated emissions.

Rothenberger noted that the coalition lawsuit comes in a context of greater challenges to environmental protections under the Trump administration.

“This falls into a pattern with the Trump administration at least attempting to roll back environmental standards under a whole host of laws,” he said, noting the administration’s challenges to the Endangered Species Act, as well as the administration’s announcement this summer that California would no longer be allowed to set its own motor vehicle emissions standards, which are typically more stringent than the nation’s as a whole.

Ozone, the pollutant for which Connecticut fails to meet EPA standards, is a colorless toxic gas.

Talia Soglin | talia.soglin@yale.edu