A judge in the US District Court for the Southern District of New York found Tuesday that the US Environmental Protection Agency (EPA) failed to prepare good neighbor implementation plans, as required by the Clean Air Act, for the 2008 ozone National Ambient Air Quality Standards (NAAQS).
Under the Clean Air Act, the EPA must establish NAAQS that “are requisite to protect the public health” for certain pollutants, and the EPA promulgated a revised NAAQS for ozone in March 2008. The promulgation triggered the states’ duty to submit state implementation plans to the EPA by March 12, 2011. If a state fails to file the required implementation plan or if the plan is insufficient, the EPA is required to promulgate a federal implementation plan within two years of that date.
On July 13, 2015, the EPA published notice that 24 states had failed to submit state implementation plans that satisfied their Good Neighbor obligations under the 2008 ozone NAAQS. This triggered a statutory obligation for the EPA to promulgate federal implementation plans for those states. In 2016, the EPA promulgated the Cross-State Air Pollution Rule Update for the 2008 Ozone NAAQS, which purported to promulgate federal implementation plans for certain states that failed to submit approvable state implementation plans.
New Jersey, Connecticut, Delaware, New York, Massachusetts and New York City brought suit against the EPA, claiming that the EPA failed to promulgate federal implementation plans for the 2008 ozone NAAQS that fully address the requirements of the Good Neighbor Provision of the Clean Air Act with respect to sources of ozone pollution in Illinois, Indiana, Michigan, Ohio, Pennsylvania, Virginia and West Virginia.
The court found that the plaintiffs correctly claimed that their complaint fell within the category of nondiscretionary duty cases, so jurisdiction was proper in the court. The only question, according to the court, was whether the agency failed to comply with the deadline of the nondiscretionary statutory duty. The EPA admitted that it did not subsequently approve state and federal implementation plans or promulgate additional transport federal implementation plans that fully resolved good neighbor obligations for the 2008 ozone NAAQS, so the court granted the plaintiffs’ motion for summary judgment.
The court stated that it would not fix a date by which the EPA must promulgate its notice of proposed rulemaking, but it set the date of March 15, 2021, for the EPA to promulgate the final notice of a complete-remedy rulemaking.