U.S. District Court Rules EPA Must Act on Maryland Request for Protection from Cross-State Air Pollution

(WASHINGTON, D.C. – June 13, 2018) A U.S. District Court today ordered the Environmental Protection Agency (EPA) to act on the State of Maryland’s request that EPA protect millions of Marylanders from dangerous air pollution that blows across their state’s borders.

“The court today told EPA to do its job and enforce America’s clean air laws. That’s great news for the people of Maryland, and for all Americans who want cleaner, safer air to breathe,” said EDF Senior Attorney Graham McCahan. “Smog is a health hazard that EPA should be working to reduce, but Administrator Scott Pruitt has been dragging his feet on those efforts.”

The state of Maryland asked EPA to enforce the “good neighbor” provisions of the Clean Air Act and protect its citizens from second-hand pollution. When EPA Administrator Scott Pruitt did not answer that petition for months, Maryland filed suit.

EDF and a coalition of health, environmental, and Maryland citizens groups also filed suit in support of Maryland.

Today the U.S. District Court for the District of Maryland ruled that EPA has been derelict in its duty under the Clean Air Act. In today’s decision, the court stated that it was:

“troubled by EPA’s apparent unwillingness or inability to comply with its mandatory statutory duties within the timeline set by Congress.” (Opinion, page 14)

The court gave EPA three months to act on Maryland’s petition, which requests that EPA require that coal-burning power plants in five upwind states operate their pollution control equipment to reduce contributions to interstate pollution that causes dangerous smog levels in Maryland.

Last week, EPA issued a notice proposing to deny Maryland’s petition and a similar petition from Delaware. The agency will accept public comment on that proposal until July 23, and will hold a public hearing on the proposal on June 22 in Washington, D.C.

Under today’s court order, EPA must make a final decision about Maryland’s petition by September 15. Given the flaws in EPA’s proposed denial and the court’s recognition today that timely action is required to address this urgent public health problem, EDF will submit comments urging the agency to fulfill its duty to protect public health and grant Maryland’s petition.

Today’s decision is the fourth time this year that a court has ordered EPA to stop delaying actions to reduce smog. The three earlier decisions were:

• On February 7, a district court in Connecticut held that EPA had unlawfully delayed action on Connecticut’s petition for relief from the interstate pollution that contributes to unhealthy ozone levels.
• On March 12, a U.S. District Court in California ordered EPA to move forward with implementation of the health-based 2015 Ozone Standards. Ground-level ozone is a key component in smog. EDF was also a party to that case.
• On June 12, a federal district court in Manhattan found that EPA had violated statutory deadlines to issue plans to reduce interstate air pollution from five upwind states that causes unhealthy smog in New York and Connecticut. 

Also, late last year EPA issued a rule delaying its obligations to designate ozone attainment and nonattainment areas by a year – only to withdraw the rule shortly after being sued in the D.C. Circuit by multiple states and environmental groups including EDF.

About 70 percent of Maryland’s smog problem originates from air pollution in upwind states. Smog is associated with premature deaths, hospitalizations, asthma attacks and long-term lung damage.

Maryland’s Department of Environment has spent decades trying to reduce smog and other dangerous pollution in the state, but its efforts have been undermined by 36 coal-fired power plant units in five upwind states – Indiana, Kentucky, Ohio, Pennsylvania and West Virginia. The pollution from those units is blowing across state borders, adding to Maryland’s smog problem and endangering its people.

All of those 36 coal plant units have already-installed modern pollution controls – but have chosen not to run them.

Maryland submitted a petition to EPA under section 126 of the Clean Air Act – a section that is a central part of the Act’s “good neighbor” provisions, which exist to protect states from upwind air pollution originating in other states. The petition asked EPA to require those power plant units to take the common sense step of running their already-installed pollution controls. EPA never responded to Maryland’s petition even though it is legally required to do so.