“Albany Times Union: Schneiderman Sues Over Ozone”
December 7, 2017
As published by The Albany Times Union, December 5, 2017.
Attorney General Eric Schneiderman has gone to court against the Trump Administration’s EPA, time over ozone regulations.
Here are the details:
New York Attorney General Eric T. Schneiderman, leading a coalition of 15 state Attorneys General, today filed a lawsuit against the Environmental Protection Agency (EPA) and EPA Administrator Scott Pruitt for failing to meet the Clean Air Act’s statutory deadline for designating areas of the country impacted by unhealthy levels of ground-level ozone (commonly referred to as smog).
“Over and over again, the Trump EPA puts polluters before its responsibility to protect the health and safety of New Yorkers,” said Attorney General Eric Schneiderman. “Over 115 million Americans – including at least one in three New Yorkers – are breathing dangerous levels of smog pollution. By continuing to ignore its legal obligations to cut this dangerous pollution, the Trump EPA is turning a blind eye to public health – and the law. Attorneys General will continue to fight back to protect our residents and our states.”
With this suit, the coalition makes good on its pledge to sue the EPA if it failed to meet this key statutory and public health requirement. In August, Attorney General Schneiderman and a coalition of Attorneys General sued the EPA for illegally delaying the designations; the next day, the EPA reversed course and withdrew the delay. However, the EPA missed the statutory deadline of October 1st for designation and, four days later, the coalition filed a notice of intent to sue the Agency for failing to issue the required designations.
Reducing smog levels is vital to protecting public health. At least one in three New Yorkers breathe air with unhealthy levels of smog pollution, with some analyses placing it as high as two in three New Yorkers (approximately 12.7 million people). The EPA’s own studies demonstrate that pollution from states upwind of New York contributes substantially to the state’s dangerous smog problem. The designation of areas with unhealthy smog levels plays a key role under the Clean Air Act in addressing the pollutant’s severe harms to public health, triggering requirements for state-specific plans and deadlines to reduce pollution in the designated areas.
In October 2015, the EPA revised and strengthened the national air quality standards for smog. The Clean Air Act requires the Agency, within two years after issuance of new or revised standards, to designate areas of the county that are in “attainment” or “non-attainment” with these public health and welfare standards. In the case of the 2015 smog standards, EPA was required to issue attainment or non-attainment designations by October 1, 2017.
However, on June 28, 2017, EPA Administrator Pruitt published a notice stalling the deadline for the smog designations for all areas in the country for one year. Shortly thereafter, on August 1st, Attorney General Schneiderman and a coalition of 16 Attorneys General sued the EPA for illegally delaying the designations. The next day, EPA abruptly reversed course and announced it was withdrawing the designations delay, although it remained equivocal on whether it would meet the October 1st deadline.
The October 1, 2017 deadline then passed without EPA making any of the required designations, in violation of the Clean Air Act. A few days later, the coalition notified EPA of its intention to sue if the agency failed to correct the violation within 60 days. On November 6, 2017, EPA issued designations for some areas of the country, but failed to make any “non-attainment” area designations, which are the designations that trigger smog reduction measures to improve air quality and comply with the standards.
The areas EPA failed to designate include many densely populated areas – such as New York City, as well as Nassau and Suffolk Counties – that suffer from the highest levels of smog. In fact, more than half of the U.S. population lives in the undesignated areas. The 60-day notice period expired today, December 5th, without the EPA issuing all of the statutorily-required designations.
The designation of areas for national air quality standards is a key statutory obligation under the Clean Air Act – and vital to protecting the public’s health. For areas designated as in non-attainment for the standards, states must adopt “implementation plans” – a collection of actions that the state will undertake to reduce pollution in order to ensure standards will be met in those areas. The deadlines for submitting implementation plans – and for ensuring that air quality standards are met within designated areas – are both directly keyed to the date of EPA designations. EPA’s failure to timely designate nonattainment areas delays the Clean Air Act’s requirements for measures to reduce pollution in these areas, thus resulting in further harm to public health.
According to EPA, the 2015 updated smog standards will improve public health protection – particularly for at-risk groups such as children, older adults, people of all ages who have lung diseases like asthma, and people who are active outdoors, especially outdoor workers. In fact, the EPA conservatively estimated that meeting the new smog standards would result in net annual public health benefits of up to $4.5 billion starting in 2025 (not including California), while also preventing approximately:
• 316 to 660 premature deaths;
• 230,000 asthma attacks in children;
• 160,000 missed school days;
• 28,000 missed work days;
• 630 asthma-related emergency room visits; and
• 340 cases of acute bronchitis in children.
Smog forms when nitrogen oxides, volatile organic compounds, and carbon monoxide emitted from power plants, motor vehicles, factories, refineries, and other sources react under suitable conditions. Because these reactions occur in the atmosphere, smog can form far from where its precursor gases are emitted and, once formed, smog can travel far distances. That is why, despite enacting stringent in-state controls on sources of these pollutants, many states – including New York – are not, alone, able to meet federal health-based air quality standards for smog.
This matter is being handled for the Attorney General’s Environmental Protection Bureau by Assistant Attorney General Brian M. Lusignan, Affirmative Section Chief Morgan A. Costello, and Senior Counsel Michael J. Myers. The Bureau is led by Bureau Chief Lemuel M. Srolovic and is part of the Division of Social Justice, which is led by Executive Deputy Attorney General for Social Justice Matthew Colangelo.