04 August 2020

District Court Imposes Deadline on EPA to Issue “Good Neighbor” Plans for Ozone Compliance

On July 28, Judge John Koeltl of the U.S. District Court for the Southern District of New York ordered the U.S. Environmental Protection Agency (EPA) to issue Federal Implementation Plans for the 2008 ozone National Ambient Air Quality Standards (NAAQS) that fully address the “good neighbor” obligations under the Clean Air Act by March 2021. The plans will force upwind Northeastern states (Illinois, Indiana, Michigan, Ohio, Pennsylvania, Virginia, and West Virginia) to curb air emissions that otherwise impede the ability of neighboring downwind states (New York, Connecticut, New Jersey, and Massachusetts) from meeting the statutory July 20, 2021 attainment deadline set forth in the 2008 ozone NAAQS.

The court found that EPA has failed to undertake its nondiscretionary obligations under the Clean Air Act to issue federal implementation plans complete with provisions ensuring that a state’s air pollution does not contribute significantly to nonattainment in another state (the “good neighbor” obligations). The EPA had determined in 2015 that because these upwind states had failed to submit adequate State Implementation Plans addressing their “good neighbor” obligations, EPA must issue its own federal plans. While the EPA had attempted to issue regulations fulfilling this nondiscretionary duty, the D.C. Circuit vacated those regulations last year.

EPA had proposed a two-phase schedule to issue revised regulations that would have addressed electric generating units in 2021 and other sources in 2022. After a lengthy discussion on its jurisdiction to hear the case, Judge Koeltl ruled that EPA has failed to make the requisite showing that it was impossible for it to issue complete federal implementation plans — for both electric generating units and nonelectric generating unit sources — by March 2021 and ordered EPA to do so now.

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