EDF, Allies Ask Two Appeals Courts to Protect Americans from Smog

(April 1, 2019) Environmental Defense Fund has filed briefs in two different Appeals courts to help protect people in three states from the dangerous pollution that causes smog.

The two cases affect Americans in Texas, Maryland and Delaware.

EDF joined Sierra Club to file a brief in the U.S. Court of Appeals for the Fifth Circuit in a case concerning smog exposure for almost two million Texans in the San Antonio area.

The U.S. Environmental Protection Agency found that Bexar County, Texas was in nonattainment with our national health-based standard for ground-level ozone pollution – better known as smog. The state of Texas is now suing to reverse that designation, in spite of the fact that EPA’s decision was based on “Texas’s own undisputed, state-certified air monitoring data shows that air quality in the area, in fact, does not meet the health-based standard.” (Brief, page 5)

EDF and Sierra Club asked the court to reject the state of Texas’ efforts to avoid meeting the smog standard, saying:

Texas residents are exposed to unhealthy air, increased risks of respiratory illness, and even premature death … Texas’s request for special and unlawful treatment would allow the State to avoid implementing enforceable measures to restore healthy air, and it would expose the residents of Bexar County to additional, harmful levels of ozone pollution. (Brief, page 3)

In the U.S. Court of Appeals for the D.C. Circuit, EDF joined the Adirondack Council. Chesapeake Bay Foundation, Chesapeake Climate Action Network, Clean Air Council, Environmental Integrity Project and Sierra Club in support of Maryland and Delaware’s efforts to protect their citizens from other states’ smog that invades their air space.

Maryland and Delaware had asked EPA for help with smog blowing across their borders from coal plant smokestacks in upwind states, but EPA refused. The two states are now suing to force EPA to reconsider that decision. EDF and its allies are intervening on behalf of Maryland and Delaware, as are the states of New Jersey and New York and the city of New York.

EDF and its allies’ brief notes that exposure to smog “has been likened to ‘getting a sunburn on your lungs” (Brief, page 16) and says:

“EPA’s denial of the [states’] petitions is just the most recent move in the Agency’s ozone transport shell game, in which it repeatedly justifies denials by pointing to separate regulations — which EPA later delays and denies — thus foreclosing downwind states’ ability to obtain relief from out-of-state ozone pollution using any of the statutory tools provided by the [Clean Air] Act.” (Brief, page 19 and 20)

Both briefs were filed late Friday.