When the federal government's failure to regulate air pollution on time (as required by Congress) leads to environmental exposure of a state's residents, what remedies are there to protect the populace? Answer: the affected states can sue. That's exactly what happened when New York and Connecticut sued the United States Environmental Protection Agency (EPA) recently.
Earlier this summer, the EPA was ordered by a federal district judge who is demanding that the feds create final plans to regulate smog pollution by early December 2018. Specifically, the district court is requiring the EPA to act to control smog pollution that continues to blow into New York and Connecticut from upwind states like Illinois, Michigan, Pennsylvania, Virginia and West Virginia.
The order arose out of a complaint that was filed back in January 2018 by New York and Connecticut (State of New York, et al. v. Pruitt et al., 1:18-cv-406 [S.D.N.Y.]). The states allege that 24 upwind states had failed to submit State Implementation Plans (SIPs) required under the "Good Neighbor Provision" of the federal Clean Air Act (CAA) that would require controlling ozone levels under the National Ambient Air Quality Standards (NAQQS), which were revised by the EPA in 2008. According to New York and Connecticut, the upwind states' failure to implement their own plans triggered a statutory deadline under the CAA for the EPA to step in to force those states to take steps to come into compliance by August 12, 2017, but the EPA missed that deadline.
Upon EPA's failure to act and missing the deadline to propose the federal implementation plans (FIPs) to the various upwind states, New York and Connecticut separately sent notices to the EPA with their intent to file suit under the CAA. With no response from the EPA after the 60-day statutory period ran out, both states jointly sued. The states' claim that EPA's failure to propose the FIPs for the upwind states by August 12, 2017, was a violation of the CAA and has caused additional harm to the public health and welfare of their residents, exposing them to longer periods of ground-level ozone pollution (smog) and resulting respiratory disease. Evidence provided by New York and Connecticut indicated that they have been unable to reach their own required smog standards due to emissions from five of the 24 upwind states in question. Connecticut provides, for example, that approximately 90% of their ozone levels can be attributed to transported emissions that originate upwind of and outside of the state.
As New York and Connecticut moved for summary judgment, they felt that it was reasonable for the EPA to meet a deadline of June 29, 2018 to send a notice of proposed action regarding the five upwind states, and for the EPA to promulgate - i.e., go through administrative proceedings to propose draft plans, take comments on, and eventually finalize - the FIPs to bring those states into compliance under the 2008 NAAQS standards by December 6, 2018. The district court agreed and granted New York's and Connecticut's motion for summary judgment, demanding that EPA meet the December 6 deadline to sign and promulgate the final smog plans for the upwind states.
For those who are concerned whether citizens have a remedy when a less aggressive EPA fails to do what is required under our environmental laws, the decision provides some comfort that the federal courts can step in and provide that remedy.