AG Grewal: NJ Sues EPA over Its Continued Failure to Address Ozone Pollution from Upwind States

For Immediate Release: January 14, 2021

Office of The Attorney General
– Gurbir S. Grewal, Attorney General
Division of Law
– Michelle Miller, Director

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TRENTON – Attorney General Gurbir S. Grewal today announced that New Jersey has joined New York, Connecticut, Delaware, Massachusetts, and the City of New York in a lawsuit alleging the U.S. Environmental Protection Agency (EPA) has abdicated its duty to act on harmful ozone pollution flowing from upwind states. The EPA’s failure to act threatens the health of residents in the downwind states and makes it harder for them to meet federal air quality standards.

Ozone pollution—caused largely by nitrogen oxide (NOx) emissions—can damage the lining of the lungs and lung tissue, and can aggravate asthma. Children and individuals with respiratory conditions are particularly susceptible.  People of color and those living below the federal poverty standard disproportionately bear the consequences of ozone pollution.  Even though New Jersey has some of the strictest limits on NOx in the United States, the EPA deems some parts of the state non-compliant with federal standards for ground-level ozone due largely to emissions from coal burning power plants and other pollution sources in upwind states.

The lawsuit announced today seeks to compel EPA to act on federally-required State Implementation Plans (SIPs) submitted by upwind states—Indiana, Kentucky, Michigan, Ohio, Texas, and West Virginia—for the 2015 ozone national ambient air quality standards (NAAQS). Earlier this year, a federal court ruled against EPA in a New Jersey-led challenge to EPA’s failure to act on the SIPs submitted by many of the same upwind states for the 2008 ozone NAAQS.

“This isn’t the first time we’ve had to sue the Trump Administration over its failure to address the ozone pollution from upwind states that is harming our residents’ health—but it will be the last,” said Attorney General Grewal. “Enough is enough. We look forward to EPA doing its job again.”

“Ozone doesn’t stop at state borders and demands a federal approach,” said DEP Commissioner Catherine R. McCabe. “The Trump Administration, as an example of one of its many misguided environmental policies, has demonstrated complete lack of leadership in requiring all states to curb these pollutants, putting New Jerseyans’ health at risk. We look forward to a new day working cooperatively and productively again with the federal government to address complex environmental issues for the good of New Jersey and the rest of the country.”

Although EPA has a responsibility under the “Good Neighbor Provision” of the Clean Air Act to ensure that states eliminate pollution that significantly contributes to non-attainment of air quality standards in other states, it has not done so for the 2015 ozone NAAQS and has not acted on the upwind states’ Good Neighbor SIPs for over a year.

The lawsuit, filed Tuesday in U.S. District Court for the Southern District of New York, asks the court to declare EPA in violation of the Clean Air Act for not taking action on the upwind states’ SIPs, and to order the agency to act on the plans immediately.

Failure to address ozone pollution from upwind states will not only harm the health of New Jersey residents, but will increase the likelihood that New Jersey will be required under federal law to impose new, more stringent control measures on industry within the state to compensate for the unchecked harms caused by upwind states.

Deputy Attorney General Robert J. Kinney, of the Environmental Enforcement and Environmental Justice Section in the Division of Law’s Affirmative Civil Enforcement Practice Group, handled this matter on behalf of the State


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