D.C. Circuit to Hear Oral Argument in Case about Deadly Cross-State Air Pollution Afflicting Millions of New Yorkers

(Washington, D.C. – May 6, 2020) Tomorrow a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit will hear oral argument via teleconference in a case about dangerous, and often deadly, air pollution that blows across state borders. New York, New Jersey, Environmental Defense Fund and several allies are parties to the case.

New York, the city of New York, and New Jersey are suing EPA for failing to protect millions of New Yorkers from smog-forming pollution from upwind coal smokestacks, industrial facilities, and oil and gas activities in neighboring states. New York petitioned EPA for help protecting human health and restoring clean air under the Good Neighbor provisions of the Clean Air Act, which are designed to handle such problems, but EPA denied the petition.

“Smog does not respect state lines. The lives and health of millions of people in New York are at risk because of deadly air pollution from neighboring states,” said EDF attorney Liana James. “The Good Neighbor provisions of the Clean Air Act exist so that downwind states don’t have to struggle with dangerous pollution alone. EPA must carry out its responsibility under the Clean Air Act to enforce these safeguards and protect people.”

Smog is linked to premature deaths, asthma attacks and long-term lung damage. States that are working to reduce smog are often undermined by the dirtier air that blows across their borders from coal plants and other sources in upwind states. A new study found that, in most states, about half the premature deaths caused by poor air quality are linked to pollution that blows in from other states. In New York, almost two-thirds of those premature deaths are due to cross-state air pollution.

The Clean Air Act obligates EPA to safeguard downwind states against smog-forming pollution from coal-fired power plants and other sources in upwind states, under what are known as the Good Neighbor provisions. In March of 2018, New York asked EPA for help with pollution from hundreds of sources in nine upwind states: Illinois, Indiana, Kentucky, Maryland, Michigan, Ohio, Pennsylvania, Virginia and West Virginia. New York argued that that out-of-state pollution significantly interfered with its ability to meet national health-based smog standards, but EPA denied the state’s petition.

New York, the city of New York, and New Jersey then sued. EDF, the Adirondack Council, and Sierra Club are supporting the states in court.

Trump’s EPA has also denied requests from Maryland and Delaware for help with dangerous border-crossing pollution. Both states sued; EDF is part of a coalition of health, environmental and community groups supporting those states in court as well. The D.C. Circuit is now deliberating on that case.

Oral argument in New York, the city of New York, and New Jersey’s case will be held by teleconference at 9:30 a.m. tomorrow by judges Srinivasan, Griffith and Millett. Audio of the oral argument will be live-streamed – you can listen to it here.