Attorney General Tong Reaches Agreement with Biden Administration to Crack Down on Air Pollution
Federal EPA Commits to Ensuring Control of Pollution Blowing Into Connecticut From Six Upwind States(Hartford, CT) – Attorney General William Tong joined a coalition of five states and the City of New York announcing an agreement with the U.S. Environmental Protection Agency (EPA) that would commit the federal government to addressing pollution that blows into Connecticut and creates unhealthy ground-level ozone (commonly known as smog). Under the agreement, which requires court approval, the EPA must take final action on “good neighbor” plans from six states to limit downwind spread of smog-forming emissions. The agreement would resolve a lawsuit brought against the Trump Administration’s EPA in January 2021 over its failure to fulfill its legal responsibility under the Clean Air Act to take actions to ensure the control of upwind sources of smog-forming pollution.
“This agreement commits the EPA to taking long-overdue steps to protect Connecticut’s air quality. We have taken strong action within our borders to protect our air, but smog does not stop at the state line. We need strong federal oversight to control cross-state air pollution and protect our public health. I am grateful that the Biden Administration has recognized this critical obligation,” said Attorney General Tong.
The Clean Air Act requires that states submit plans – known as a “State Implementation Plan” or “SIP” – for meeting national health and welfare standards for air pollutants, including ozone smog. These plans must fulfill the requirements of the Act’s “Good Neighbor Provision,” which prohibits sources within upwind states from emitting air pollutants in amounts that contribute to downwind states not attaining or maintaining compliance with the national ozone standards. The Act specifies that the EPA must review each state’s completed plan within 12 months, and either approve or disapprove the plan. If the EPA determines that a state’s plan does not meet the law’s requirements and disapproves it, the EPA is then required to adopt a plan, known as a “Federal Implementation Plan” or “FIP,” for the state.
Despite the Clean Air Act’s requirements, the Trump EPA refused to carry out its mandatory statutory duty to approve or disapprove plans submitted by Indiana, Kentucky, Michigan, Ohio, Texas, and West Virginia pursuant to the Good Neighbor Provision. The EPA’s inaction meant that it neither determined the adequacy of the proposed “Good Neighbor” SIPs nor triggered its obligation to adopt FIPs for the states with deficient plans. As a result of this inaction and because pollution emitted from sources in these states contributed substantially to smog problems in Connecticut and other states, the coalition sued the Trump administration’s EPA in U.S. District Court for the Southern District of New York on January 12, 2021 to compel the EPA to approve or disapprove the upwind states’ SIPs.
The agreement announced today with the Biden administration’s EPA resolves the coalition’s lawsuit and ends the EPA’s illegal delay by establishing deadlines for action. The agreement requires the EPA to approve or disapprove Good Neighbor SIPs from the upwind states by April 30, 2022. If, however, the EPA proposes by February 28, 2022 to disapprove one or more SIPs and to adopt a corresponding FIP, the EPA would have until December 15, 2022 to finalize the SIP disapprovals. This creates strong incentives for EPA to concurrently evaluate SIPs and propose FIPs where necessary, expediting reduction of upwind States’ emissions as required by the Good Neighbor Provision.
Joining Attorney General Tong in the agreement are the attorneys general of New York, Delaware, Massachusetts, and New Jersey, and the Corporation Counsel of the City of New York. The coalition was led by New York Attorney General Letitia James. Following a notice-and-comment period required by the Act, the agreement will be sent to the U.S. District Court for final approval.
Assistant Attorney General Jill Lacedonia and Deputy Associate Attorney General Matt Levine, Chief of the Environment Division, are assisting the Attorney General in this matter.