EPA ordered to reconsider New York efforts to tame downwind pollution

A three-judge panel chastised the Environmental Protection Agency (EPA) Tuesday, siding with states who had sued the agency to do more to battle cross-state pollution.

New York and other states said the EPA had not done enough to restrict smog from downwind states, jeopardizing upwind states’ air quality.  

Tuesday’s decision from D.C.’s Court of Appeals criticized the EPA for resisting New York’s efforts to force more restrictive habits under the Clean Air Act’s “Good Neighbor Provision.”

“The EPA offered insufficient reasoning for the convoluted and seemingly unworkable showing it demanded of New York’s petition,” the court wrote in its decision. 

The decision comes just a day after the EPA announced it would not seek to set more restrictive regulations on ozone pollution, commonly referred to as smog. 

It remands the case for further review, requiring the EPA to reconsider New York’s petition, which seeks to limit pollution from about 350 power plants and other polluting sources located across nine other states.

“We are reviewing the decision,” the EPA said in a statement.

The EPA has lost other, similar Good Neighbor cases, including a previous effort brought by New York alongside several other states, as well as another effort from Wisconsin. 

Environmental groups have pushed EPA to enact stronger smog standards for at least a decade, challenging the Obama-era ozone standard of 70 parts per billion (ppb).

EPA’s proposal Monday would retain the current standard.

“Based on a review of the scientific literature and recommendation from our independent science advisors, we are proposing to retain existing ozone standards which will ensure the continued protection of both public health and the environment,” EPA Administrator Andrew Wheeler said in a release.

That group of science advisers, the Clean Air Scientific Advisory Committee (CASAC), faced heavy scrutiny in the first two years of the Trump administration after all its original members were replaced by either Wheeler or his predecessor Scott Pruitt.

“EPA is effectively saying, ‘If it was good enough for Obama, it’s good enough for us,’ but that was basically their goal from day one,” John Walke, a senior attorney with the Natural Resources Defense Council, said Monday.

Walke said the agency is ignoring a growing body of evidence that shows ozone pollution is still harmful to health when present in concentrations higher than 60 ppb.

“The point of the scientific review isn’t to determine whether this was good enough then — it’s to decide what the science tells you should be done today in 2020,” he said.