AGs ask court to review EPA’s OTR denial
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January 17, 2018
AGs ask court to review EPA’s OTR denial

The attorneys general (AGs) of eight Northeastern states have asked the U.S. Court of Appeals for the D.C. Circuit to review the legality of EPA’s denial of their 2013 petition, which asked the Agency to add nine Midwestern states to the Ozone Transport Region (OTR). The EPA denied the petition (November 3, 2017, FR) after the AGs brought a lawsuit against the Agency for failing to take action on its request. The EPA settled with the complainants, agreeing to issue its decision on the petition by October 27, 2017. 

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The AGs making the current request to the D.C. Circuit represent Connecticut, Delaware, Maryland, Massachusetts, New York, Pennsylvania, Rhode Island, and Vermont. They had asked the EPA to add Illinois, Indiana, Kentucky, Michigan, North Carolina, Ohio, Tennessee, Virginia, and West Virginia to the OTR.  

Significant contributors

Congress created the OTR to help states address pervasive smog problems in the northeastern U.S. Each state within the OTR must develop and implement plans that achieve control of pollutants that contribute to the formation of ground-level ozone. However, despite enacting stringent in-state controls on sources of these pollutants, many states within the OTR are not able to attain the health-based National Ambient Air Quality Standards (NAAQS) for ozone. These states have long argued that contributions of ozone and ozone precursors from upwind states are at the root of their nonattainment. 

“Modeling and analysis performed by EPA, as well as by states, has shown that interstate transport of air pollution from upwind states outside of the Ozone Transport Region contributes significantly to violations of the 2008 federal smog standard within the OTR,” say the petitioning states. “In addition, preliminary modeling demonstrates that emissions in these states, as well as North Carolina, are projected to contribute to violations of the recently updated 2015 federal smog standard in the Region.” 

States outside and upwind of the OTR are not required to—and generally do not—impose controls as stringent as those required of those within the OTR. The Clean Air Act (CAA) allows states to petition the EPA to add states to the OTR and for the Agency to add states when it has reason to believe that the interstate transport of air pollution from them significantly contributes to exceedances of the NAAQS in the OTR. 

Reasons for denial

In denying the 2013 petition, the EPA made the general point that existing programs are sufficient to control pollution transport from the upwind to the downwind states, and expansion of the OTR is not needed. For example, the Agency said, in respect to the 2008 ozone NAAQS, it believes that continuation of CAA’s mandatory good-neighbor provision [Section 110(a)(2)(D)(i)(I)] is a more effective means of addressing regional ozone pollution transport for the areas within the OTR that must attain the NAAQS than expanding the OTR as the Northeastern states requested. The EPA has used the good-neighbor provision to promulgate multiple major rules, including the NOx SIP [nitrogen oxides state implementation plan] Call, Clean Air Interstate Rule, Cross-State Air Pollution Rule (CSAPR), and CSAPR Update. In addition, the EPA says it has approved many SIPs that specifically address interstate transport of pollution.

AGs’ petition to the D.C. Circuit is here.

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