The Environmental Protection Agency had until last Monday to seek rehearing of a decision which requires the agency to better regulate cross-state pollution. But the agency did not appeal the case, which means that, by law, it must draft stricter regulations.

The case, New York v. EPA, called upon the agency’s responsibility to regulate ozone emissions that travel from upwind states to downwind states — including Connecticut, which was one of five northeastern states to join New York in the suit. At the beginning of October, the D.C. Court of Appeals ruled against an EPA regulation known as the Close-Out Rule. The rule, which the agency issued last year, stated that the agency had already fulfilled its Clean Air Act obligations to downwind states. The court disagreed.

“The D.C. Circuit decision stands,” said Neil Gormley, an attorney at Earthjustice who worked on the New York case. “EPA has an unmet legal obligation to address the cross-state pollution that’s causing violations of air quality standards.”

Connecticut has until 2021 to comply with federal ozone standards, which the state does not currently meet. However, most of Connecticut’s ozone levels originate from other states. According to the state’s Department of Energy and Environmental Protection, pollution originating in other states contributes to more than 90 percent of ozone levels in southwestern Connecticut and more than 80 percent of ozone levels elsewhere in the state. Though states like Connecticut have only until 2021 to adhere to federal standards, the upwind states would have had until 2023 to adjust their own under the now-annulled federal rules.

Gormley noted that to show compliance in 2021, states would need to use data from 2020. He said that for states to achieve the necessary reductions by the deadline, the agency needs to put new rules in place — and quickly.

Gormley also said that although the deadline for the EPA to appeal the ruling has passed, the agency has until late December to ask the Supreme Court to hear the case and potentially reconsider the appellate court’s prior decision.

An EPA spokesperson declined to comment on whether the agency has started the process of redrafting the Clean Air Act regulations, and could not be reached for comment on whether it plans to take the case to the Supreme Court.

New York v. EPA is only one in a series of lawsuits that have challenged the EPA to better protect downwind states. Gormley noted that the New York lawsuit was decided without oral arguments because the court followed the precedent of a similar case, Wisconsin v. EPA, which challenged a different cross-state regulation made under the Obama administration. The deadline for the agency to seek rehearing in the Wisconsin suit also passed last week.

Only two days after the EPA’s deadline passed in the New York suit, Connecticut Attorney General William Tong filed another lawsuit with his New Jersey counterpart, Gurbir Grewall. The suit called on the EPA to recognize that Pennsylvania and Virginia — two states upwind of Connecticut — have yet to submit their plans for compliance with the Clean Air Act, specifically on how to reduce cross-state air pollution originating within their borders.

“We cannot control our geography, but we can take steps to compel the EPA and our neighbors to comply with federal ozone standards,” Tong said in an Oct. 30 statement. “Their actions directly impact families here, and they must meet their obligations under federal law.”

The United States Environmental Protection Agency was founded in 1970.

 

Talia Soglin | talia.soglin@yale.edu