The United States Court of Appeals for the District of Columbia rejected a request by a group of Northeastern states that the court force the U.S. Environmental Protection Agency (EPA) to add a group of states not currently part of a regional ozone regulatory framework to the framework, thereby forcing those states to implement the same types of ozone regulations faced by states bringing the lawsuit.
Clearing Up Ozone
EPA established the Northeast Ozone Transport Region (NOTR) 1991 as part of 1990 revisions made to the 1970 Clean Air Act (CAA). EPA created NOTR to advise the agency on ways of preventing and reducing ground-level ozone from transportation sectors in the Northeast and Mid-Atlantic regions.
Ozone is one of the primary constituents of smog, created when pollutants from cars and other sources react in the atmosphere to sunlight, creating ground-level ozone. A regional approach to ozone and smog issues was implemented in recognition of the fact ozone emitted in one state can contribute to smog problems in other states.
NOTR includes every state in New England, Delaware, Maryland, New Jersey, New York, Pennsylvania, Washington, D.C., and parts of Virginia. In 2013, NOTR states requested EPA expand the region to include Illinois, Indiana, Kentucky, Michigan, North Carolina, Ohio, Tennessee, West Virginia, and the parts of Virginia left out of the original regulations arguing ozone from those states were contributing to air problems and leading to federal air pollution violations in the original 13 NOTR states.
EPA Rejects NOTR Expansion
EPA rejected the states’ request to expand NOTR in 2017, saying other provisions of the CAA were sufficient to limit air pollution emitted in other states.
In response, eight NTOR states led by New York, sued, asking the D.C. Appeals Court to reverse EPA’s decision, and force it to expand NOTR as requested.
Law Is Clear
The D.C. Court of Pppeals rejected the states’ lawsuit, upholding EPA’s decision not to expand NOTR.
Senior U.S. Circuit Judge Raymond Randolph, writing for a unanimous three-judge panel in April, said the law under which EPA created the region clearly gives EPA discretion concerning whether any particular state into a regional ozone transport region.
In his decision, Randolph wrote, even if the member states showed pollution from their neighbors “significantly contributes to a violation” of the region’s air quality standards, EPA maintains significant discretion over whether to expand region, and thus ozone regulation, to other states.
“EPA’s denial of the states’ petition complied with the Clean Air Act and was a reasonable exercise of the agency’s discretion,” said Randolph’s 12-page opinion for the D.C. Circuit Court.
Kenneth Artz ([email protected]) writes from Dallas, Texas.