SDNY Judge Rules for New York and Connecticut in Deciding that the EPA Must Promulgate Federal Implementation Plans Addressing Ozone Pollution in Illinois, Michigan, Pennsylvania, Virginia, and West Virginia

The State of New York and the State of Connecticut brought suit against Scott Pruitt, as Administrator of the EPA, as well as the agency itself seeking an order to set a deadline by which the EPA would need to fulfill its mandatory duties under the Clean Air Act to set Federal Implementation Plans (FIPs) for National Ambient Air Quality Standards (NAAQS) when states fail to satisfy their obligations under the Good Neighbor Provision of the Clean Air Act. In 2008, the EPA revised NAAQS for ozone and set a level of 75 parts per billion. Back on July 13, 2015, the EPA published a notice in the Federal Register citing 24 states, including Illinois, Michigan, Pennsylvania, Virginia, and West Virginia, for failure to submit state implementation plans that satisfied the obligations under the Good Neighbor Provision of the Clean Air Act in regards to the 2008 ozone NAAQS. This finding by the EPA triggered a provision in Section 110(c)(1) of the Clean Air Act that requires the EPA to issue FIPs for the defaulting states. The law required the EPA to issue the FIPs by August 12, 2017 and the EPA failed to do so. Therefore, New York State sent a letter to the EPA providing notice of its intent to file suit against the EPA for failure to perform this nondiscretionary duty on October 26, 2017 and Connecticut sent a similar letter on November 13, 2017. Both states waited the required 60 days before filing suit when the EPA still took no action.

New York and Connecticut alleged that they suffered harm from the EPA’s inaction. The states also offered evidence that both states will fail to meet their own attainment deadlines for the 2008 ozone NAAQS in part because of the interstate transport of emissions from Illinois, Michigan, Pennsylvania, Virginia, and West Virginia without FIPs to address the interstate transport of emissions from these states. Both states requested summary judgment for an order setting deadlines by which the EPA must promulgate FIPs for these defaulting states.

The EPA conceded that it failed to perform its duties under the Clean Air Act and that the agency could feasibly sign and disseminate a notice of a proposed action addressing its obligations by June 29, 2018 and promulgate a final action by December 6, 2018. These were dates provided in the Plaintiffs’ proposed order. However, the EPA provided a proposed order that did not require it to disseminate the proposed action or promulgate the final action by those same deadlines. The EPA noted that it was not required by law to disseminate the proposed action, although, the agency did concede that they normally do so through a posting on the internet.

Judge John G. Koeltl, District Judge in the Southern District of New York, decided that since the EPA’s normal practice is to disseminate proposed notices through the internet, there is no reason that they should not be required to do so in this case even though dissemination is technically not required by law. The order granted by Judge Koeltl requires the EPA to perform its mandatory duty and sign and disseminate a notice of the proposed action that fully addresses the Good Neighbor Rule in relation to the 2008 ozone NAAQS for the specified sates and promulgate a final action fully addressing the Good Neighbor Rule by December 6, 2018. The Judge further ordered the EPA to “expeditiously” deliver notices of the proposed and final rulemaking to the Office of the Federal Register for publication. The court will maintain jurisdiction over enforcing the matter until both parties inform the court that the deadlines have been met. Both plaintiffs were awarded costs including reasonable attorneys’ fees.

Leave a Reply

Your email address will not be published.