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`Paul R. Cort, State Bar No. 184336
`Earthjustice
`50 California Street
`San Francisco, CA 94111
`Tel: 415-217-2000/Fax: 415-217-2040
`pcort@earthjustice.org
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`Kathleen Riley, Pro Hac Vice Pending
`Neil Gormley, Pro Hac Vice Pending
`Earthjustice
`1001 G St NW, Suite 1000
`Washington, DC 20001
`Tel: 202-667-4500/Fax: 202-667-2356
`kriley@earthjustice.org
`ngormley@earthjustice.org
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`Counsel for Downwinders at Risk, Sierra Club, Center for Biological Diversity, Air Alliance
`Houston, Texas Environmental Justice Advocacy Services, Appalachian Mountain Club,
`Earthworks, Natural Resources Defense Council, and Environmental Defense Fund
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`Zachary Fabish, State Bar No. 247535
`Sierra Club
`50 F Street, NW, 8th Floor
`Washington, DC 20001
`(202) 675-7917
`zachary.fabish@sierraclub.org
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`Counsel for Sierra Club
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`Hayden Hashimoto, State Bar No. 325150
`Clean Air Task Force
`114 State St., 6th Floor
`Boston, MA 02109
`(808) 342-8837
`hhashimoto@catf.us
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`Counsel for Clean Wisconsin
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`Case 4:21-cv-03551-DMR Document 1 Filed 05/12/21 Page 2 of 20
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`UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF CALIFORNIA
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`DOWNWINDERS AT RISK; SIERRA
`CLUB; CENTER FOR BIOLOGICAL
`DIVERSITY; AIR ALLIANCE HOUSTON;
`TEXAS ENVIRONMENTAL JUSTICE
`ADVOCACY SERVICES; CLEAN
`WISCONSIN; APPALACHIAN
`MOUNTAIN CLUB; EARTHWORKS;
`NATURAL RESOURCES DEFENSE
`COUNCIL; and ENVIRONMENTAL
`DEFENSE FUND,
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`Plaintiffs,
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`v.
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`MICHAEL S. REGAN, in his official
`capacity as Administrator of the United States
`Environmental Protection Agency,
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` Defendant.
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`Civil Action No. ________________
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`COMPLAINT FOR
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`RELIEF
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`INTRODUCTION
`Ground-level ozone, or smog, seriously harms human health and the environment. Ozone
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`is formed when sunlight triggers a reaction between volatile organic compounds and nitrogen
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`oxides emitted by, for example, power plants, oil and gas production, and motor vehicles. Ozone
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`and its precursor pollution travels across state lines; indeed, in many areas with elevated ozone
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`levels, most of the ozone pollution comes from across state lines.
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`2.
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`To protect public health and the environment, the Clean Air Act requires EPA to
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`establish health- and welfare-protective national ambient air quality standards, including for
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`ozone. 42 U.S.C. § 7409(a), (b). The Act is centrally concerned with ensuring that all areas of the
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`country attain and maintain these standards “as expeditiously as practicable but not later than”
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`specified deadlines. See 42 U.S.C. § 7511(a)(1).
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`3.
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`The Act includes a “Good Neighbor Provision” to address the pollution that crosses state
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`lines. 42 U.S.C. § 7410(a)(2)(D)(i)(I). The Good Neighbor Provision requires states to eliminate
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`pollution that significantly contributes to nonattainment of the ozone standard, or interferes with
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`maintenance of the standard, in downwind states. Id.
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`4.
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`To ensure that downwind areas can timely attain and maintain the standards, the Act
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`imposes a series of intermediate deadlines on both states and the EPA. Within three years of
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`adoption of a standard, states must adopt and submit plans to EPA that implement their
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`obligations under the Act, including those of the Good Neighbor Provision. 42 U.S.C. § 7410(a).
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`EPA must approve or disapprove1 states’ complete plans “[w]ithin 12 months,” based on whether
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`the plans satisfy the Act. 42 U.S.C. § 7410(k)(2), (3); 42 U.S.C. § 7410(a)(2)(D)(i)(I). If EPA
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`1 EPA may also approve in part and disapprove in part. 42 U.S.C. § 7410(k)(3).
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`disapproves a state’s plan, EPA must promulgate a federal plan within two years—unless the
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`state corrects its plan first. 42 U.S.C. § 7410(c)(1)(B).
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`5.
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`EPA adopted a strengthened ozone standard in 2015, triggering the Act’s requirement
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`that states adopt Good Neighbor plans and submit them to EPA. 80 Fed. Reg. 65,292 (Oct. 26,
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`2015); 42 U.S.C. § 7410(a).
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`6.
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`More than 32 states have submitted Good Neighbor plans to EPA, including Alabama,
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`Arizona, Arkansas, California, Connecticut, Florida, Georgia, Hawaii, Illinois, Indiana, Iowa,
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`Kansas, Kentucky, Louisiana, Maryland, Michigan, Minnesota, Mississippi, Missouri, Montana,
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`Nevada, New Jersey, New York, North Carolina, Ohio, Oklahoma, South Carolina, Tennessee,
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`Texas, West Virginia, Wisconsin, and Wyoming.2 These states’ plans were “complete” by or
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`before dates between February 27, 2019, and November 21, 2019. See 42 U.S.C. § 7410(k)(1)(B)
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`(deeming states’ plans complete “6 months after receipt of the submission” if EPA has not
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`determined the plan is incomplete); infra ¶ 49 (listing dates each state’s plans were “complete”).
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`7.
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`Thus, the Act required EPA to approve or disapprove these states’ Good Neighbor plans
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`by or before dates between February 27, 2020, and November 21, 2020. See 42 U.S.C. §
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`7410(k)(2) (requiring action “[w]ithin 12 months” of states’ plans being determined or deemed
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`complete). However, EPA has not finalized approval or disapproval of any of the 32 states’
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`Good Neighbor plans.
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`2 See EPA, National Status of a 110(a)(2) Ozone (2015) SIP Infrastructure Requirement,
`https://www3.epa.gov/airquality/urbanair/sipstatus/reports/x110_a__2__ozone__2015_section_1
`10_a__2__d__i__-_i_prong_1__interstate_transport_-_significant_contribution_inbystate.html
`(Prong 1), and
`https://www3.epa.gov/airquality/urbanair/sipstatus/reports/x110_a__2__ozone__2015_section_1
`10_a__2__d__i__-_i_prong_2__interstate_transport_-
`_interfere_with_maintenance_inbystate.html (Prong 2).
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`EPA’s failure to approve or disapprove states’ complete Good Neighbor plans in
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`8.
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`compliance with the one-year deadline prescribed by Congress violates Clean Air Act section
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`7410(k)(2).
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`9.
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`EPA’s violation of its statutory deadline prolongs the presence of harmful levels of ozone
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`in downwind areas. Not only have upwind states failed to eliminate their significant
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`contributions “as expeditiously as practicable,” many states’ significant contributions will
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`continue even after downwind states’ attainment deadlines—including the August 2021
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`attainment deadline for many areas. See 42 U.S.C. § 7511(a)(1) tbl.1; infra ¶ 43. Yet, without
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`EPA’s disapproval of inadequate state plans, the Act’s requirement that EPA promulgate an
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`adequate federal plan is not triggered.
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`10.
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`To remedy EPA’s failure to comply with its statutory obligation, Downwinders at Risk,
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`Sierra Club, Center for Biological Diversity, Air Alliance Houston, Texas Environmental Justice
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`Advocacy Services, Clean Wisconsin, Appalachian Mountain Club, Earthworks, Natural
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`Resources Defense Council, and Environmental Defense Fund (collectively, “Plaintiffs”) seek
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`both declaratory relief and an order to compel the Administrator to approve or disapprove states’
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`Good Neighbor plans as expeditiously as possible.
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`JURISDICTION, VENUE, AND NOTICE
`This is an action to compel the Administrator to perform a non-discretionary act or duty
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`11.
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`under the Clean Air Act. 42 U.S.C. § 7604(a)(2); id. § 7410(a)(2)(D)(i)(I), (k)(2). This Court has
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`jurisdiction over this action under section 7604(a)(2) of the Act as well as 28 U.S.C. § 1331
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`(federal question jurisdiction).
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`12.
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`The requested declaratory and injunctive relief is authorized by the Declaratory Judgment
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`Act, 28 U.S.C. §§ 2201–2202, and section 7604(a)(2) of the Clean Air Act.
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`13.
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`Venue is vested in this Court under 28 U.S.C. § 1391(e) because this suit names an
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`officer of an agency of the United States acting in their official capacity, no real property is
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`involved in this action, and Plaintiff Sierra Club resides in this judicial district. Additionally,
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`some of the claims in this Complaint concern EPA’s failure to perform mandatory duties
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`regarding California, Arizona, Nevada, and Hawaii. EPA Region 9 is responsible for these states
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`and is headquartered in San Francisco. Thus, a substantial part of the events or omissions giving
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`rise to the Plaintiffs’ claims occurred in this judicial district. See 28 U.S.C. § 1391(e).
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`14.
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`This case is properly assigned to the San Francisco or Oakland Division of this Court
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`because Plaintiff Sierra Club resides in Oakland, and Defendant EPA resides in San Francisco.
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`Civil L.R. 3-2(c), (d).
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`15.
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`By certified mail postmarked March 12, 2021, with a courtesy copy sent by electronic
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`mail, Plaintiffs provided the Administrator with written notice of this action as required by the
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`Clean Air Act, 42 U.S.C. § 7604(b)(2); 40 C.F.R. §§ 54.1–54.3.
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`PARTIES
`Plaintiff Downwinders at Risk is a nonprofit corporation organized and existing under the
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`16.
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`laws of the State of Texas, with its headquarters located in Dallas, Texas. Downwinders at Risk
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`is a diverse grassroots citizens group dedicated to protecting public health and the environment
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`from air pollution in North Texas.
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`17.
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`Plaintiff Sierra Club is a nonprofit corporation organized and existing under the laws of
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`the State of California, with its headquarters located in Oakland, California. The Sierra Club is a
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`national membership organization dedicated to the protection of public health and the
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`environment, including clean air, with more than 800,000 members who reside in all 50 states,
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`D.C., and U.S. territories.
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`18.
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`Plaintiff Center for Biological Diversity is a nonprofit conservation organization
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`incorporated under the laws of the State of California and headquartered in Tucson, Arizona,
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`with an office in Oakland, California. The Center for Biological Diversity has approximately
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`84,000 members throughout the United States and the world. The Center for Biological
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`Diversity’s mission is to ensure the preservation, protection, and restoration of biodiversity,
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`native species, ecosystems, public lands and waters, and public health through science, policy,
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`and environmental law. Based on the understanding that the health and vigor of human societies
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`and the integrity and wildness of the natural environment are closely linked, the Center for
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`Biological Diversity is working to secure a future for animals and plants hovering on the brink of
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`extinction, for the ecosystems they need to survive, and for a healthy, livable future for all of us.
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`19.
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`Plaintiff Air Alliance Houston is a nonprofit corporation organized and existing under the
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`laws of the State of Texas, with its headquarters in Houston, Texas. Air Alliance Houston works
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`to reduce air pollution in the Houston region to protect public health and environmental integrity
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`through research, education, and advocacy.
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`20.
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`Plaintiff Texas Environmental Justice Advocacy Services is a nonprofit organization
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`organized and existing under the laws of the State of Texas, with its headquarters in Houston,
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`Texas. Texas Environmental Justice Advocacy Services advances environmental justice through
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`education, policy development, community outreach, and legal action to achieve a healthy
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`environment for all, regardless of race or income.
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`21.
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`Plaintiff Clean Wisconsin is a nonprofit corporation organized and existing under the
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`laws of the State of Wisconsin, with its headquarters in Madison, Wisconsin. Clean Wisconsin is
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`a membership organization dedicated to environmental education, advocacy, and legal action to
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`protect air quality, water quality, and natural resources in the State of Wisconsin.
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`22.
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`Plaintiff Appalachian Mountain Club is a corporation organized and existing under the
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`laws of the Commonwealth of Massachusetts, with its headquarters in Boston, Massachusetts.
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`The Appalachian Mountain Club is a regional nonprofit organization dedicated to promoting the
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`protection, enjoyment, and wise use of the mountains, rivers, and trails of the northeast outdoors.
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`23.
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`Plaintiff Earthworks is a nonprofit corporation headquartered in Washington, D.C. with
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`more than 65,000 members throughout the United States and the world. Earthworks is dedicated
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`to protecting communities and the environment from the adverse impacts of energy development
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`while promoting sustainable solutions.
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`24.
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`Plaintiff Natural Resources Defense Council (“NRDC”) is a nonprofit environmental and
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`public health organization, incorporated under the laws of the State of New York, headquartered
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`in New York, New York, and with hundreds of thousands of members nationwide. NRDC’s
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`mission is to safeguard the Earth: its people, its plants and animals, and the natural systems on
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`which all life depends.
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`25.
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`Plaintiff Environmental Defense Fund (“EDF”) is a nonprofit organization incorporated
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`under the laws of the State of New York, headquartered in New York City, and with more than
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`two million members and supporters nationwide. Established in 1967, EDF seeks to solve some
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`of the most critical environmental problems facing humanity, including climate change,
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`pollution, and exposure to toxic chemicals, and to educate the public about these problems.
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`26.
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`Collectively, Plaintiffs have members living, working, and engaging in outdoor activities
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`in all 50 states, Washington, D.C., and U.S. territories, including in the downwind areas that
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`receive pollution from states for which EPA has failed to approve or disapprove complete Good
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`Neighbor plans.
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`27.
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`Defendant Michael S. Regan is the Administrator of the U.S. Environmental Protection
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`Agency. Administrator Regan is charged with the duty to uphold the Clean Air Act and to take
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`required regulatory actions according to the deadlines established by the Act.
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`FACTUAL BACKGROUND: OZONE
` Ozone, the main component of smog, is an air pollutant that irritates and inflames the
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`lungs and throat, constricts breathing, and likely kills people. See Am. Trucking Ass’ns v. EPA,
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`283 F.3d 355, 359 (D.C. Cir. 2002); 80 Fed. Reg. 65,292, 65,308/3–309/1 (Oct. 26, 2015); EPA,
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`Integrated Science Assessment for Ozone and Related Photochemical Oxidants at 2-20 to -24
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`tbl.2-1, EPA-HQ-OAR-2008-0699-0405 (Feb. 2013) (“ISA”). It causes and exacerbates asthma
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`attacks, emergency room visits, hospitalizations, and other serious health harms. E.g., EPA,
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`Policy Assessment for the Review of the Ozone National Ambient Air Quality Standards at 3-18,
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`3-26 to -29, 3-32, EPA-HQ-OAR-2008-0699-0404 (Aug. 2014) (“PA”); ISA 2-16 to -18, 2-20 to
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`-24 tbl.2-1. Ozone-induced health problems can force adults and children to stay indoors, take
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`medication, and miss work or school. E.g., PA 4-12.
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`29.
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`Ozone can harm healthy people, but children and some adults are more vulnerable. See
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`80 Fed. Reg. at 65,310. Children are especially vulnerable, particularly when they are breathing
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`more quickly, such as when playing outdoors, because their respiratory tracts are not fully
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`developed. E.g., id. at 65,310/3, 65,446/1; PA 3-81 to -82. Older people and people living with
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`lung disease also have heightened vulnerability. See 80 Fed. Reg. at 65,310/3. People living with
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`asthma also suffer more severe impacts from ozone exposure and are more vulnerable at lower
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`levels of exposure. Id. at 65,311/1 n.37, 65,322/3.
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`30.
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` Ozone also damages vegetation and forested ecosystems, causing or contributing to
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`widespread stunting of plant growth, tree deaths, visible leaf injury, reduced carbon storage, and
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`reduced crop yields. PA 5-2 to -3; ISA 9-1. By harming vegetation, ozone can also damage entire
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`ecosystems, leading to ecological and economic losses. See 80 Fed. Reg. at 65,370/1–2,
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`65,377/3.
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`STATUTORY AND REGULATORY BACKGROUND
`Congress enacted the Clean Air Act “to protect and enhance the quality of the Nation’s
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`air resources so as to promote the public health and welfare and the productive capacity of its
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`population.” 42 U.S.C. § 7401(b)(1). A “primary goal” of the Act is “pollution prevention.” Id.
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`§ 7401(c). Congress found the Act to be necessary in part because “the growth in the amount and
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`complexity of air pollution brought about by urbanization, industrial development, and the
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`increasing use of motor vehicles, has resulted in mounting dangers to the public health and
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`welfare.” Id. § 7401(a)(2).
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`32.
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`The Act requires that EPA establish national ambient air quality standards for certain air
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`pollutants that endanger public health and welfare, referred to as “criteria pollutants.” Id.
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`§§ 7408–7409. One criteria pollutant is ground-level ozone, or smog. See 40 C.F.R. §§ 50.9,
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`50.10, 50.15, 50.19.
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`33.
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`The national ambient air quality standards establish allowable concentrations of criteria
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`pollutants in ambient (i.e., outdoor) air. Primary standards must be set at a level that protects
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`public health—including that of sensitive populations such as asthmatics, children, and the
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`elderly—with an adequate margin of safety. 42 U.S.C. § 7409(b)(1). Secondary standards must
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`be set at a level that protects public welfare, including protection against damage to animals,
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`crops, vegetation, and waters. Id. §§ 7409(b)(2), 7602(h). EPA must review and, as appropriate,
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`revise these standards at least every five years. Id. § 7409(d)(1).
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`34.
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`After EPA sets or revises a standard, the Clean Air Act requires EPA to take steps to
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`implement the standard. EPA must “designate” areas as not meeting the standard, or
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`“nonattainment”; meeting the standard, or “attainment”; or, if EPA lacks information to make a
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`designation, “unclassifiable.” 42 U.S.C. § 7407(d)(1)(A)–(B). Simultaneous with designations,
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`the Act requires EPA to classify each ozone nonattainment area based on the severity of its
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`ozone pollution. Id. § 7511(a)(1) tbl.1. The classifications are, in increasing order, “marginal,”
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`“moderate,” “serious,” “severe,” and “extreme.” Id.
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`35.
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`Areas classified as being in “marginal” nonattainment must attain the ozone standard by a
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`deadline three years from the date they are designated nonattainment, while “moderate”
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`nonattainment areas have six years from the date of designation, and “serious” areas have nine
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`years. 42 U.S.C. § 7511(a)(1) tbl.1.
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`36.
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`All areas of the country must attain and maintain these standards “as expeditiously as
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`practicable but not later than” the specified deadlines. See id.; see also NRDC v. EPA, 777 F.3d
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`456, 460 (D.C. Cir. 2014).
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`37.
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`Recognizing the potential for interstate ozone pollution to frustrate downwind attainment,
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`Congress included a “Good Neighbor Provision” that requires states to “prohibit[]…any
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`source…from emitting any air pollutant in amounts which will…contribute significantly to
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`nonattainment in, or interfere with maintenance by, any other State.” 42 U.S.C. §
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`7410(a)(2)(D)(i)(I).
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`38.
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`“Within three years” after EPA sets or revises a standard, states must adopt and submit to
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`EPA a plan that satisfies the Good Neighbor Provision, among other Clean Air Act requirements.
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`42 U.S.C. § 7410(a)(1). State plans must “eliminate their significant contributions in accordance
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`with the deadline by which downwind States must come into compliance with the [ozone
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`standard].” See Wisconsin v. EPA, 938 F.3d 303, 313 (D.C. Cir. 2019).
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`39.
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`States’ plans must meet minimum completeness criteria. 42 U.S.C. § 7410(k)(1)(A); 40
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`C.F.R. Part 51, Appendix V. EPA must determine whether a state’s plan meets the minimum
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`criteria and is complete “[w]ithin 60 days” of receipt of the plan, “but no later than 6 months
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`after” the state’s deadline to submit the plan. 42 U.S.C. § 7410 (k)(1)(B). Unless EPA finds a
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`state plan fails to meet the minimum criteria and is incomplete “by the date 6 months after
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`receipt of the submission,” the plan “shall on that date be deemed” complete “by operation of
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`law.” Id.
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`40.
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`Once a state plan is “complete,” EPA “shall” approve, disapprove, or approve in part and
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`disapprove in part the plan “[w]ithin 12 months,” 42 U.S.C. § 7410(k)(2), (3), depending on
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`whether it satisfies the Clean Air Act, including the Good Neighbor Provision, 42 U.S.C. §
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`7410(a)(2)(D)(i)(I); EPA v. EME Homer City Generation, L.P., 572 U.S. 489 (2014).
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`41.
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`If EPA disapproves a state’s plan, the Act requires EPA to promulgate a federal plan that
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`satisfies the Act, including the Good Neighbor Provision, “within 2 years”—unless the state
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`corrects the plan and EPA approves it before EPA promulgates the federal plan. 42 U.S.C. §
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`7410(c)(1).
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`EPA’S FAILURE TO ACT ON INTERSTATE OZONE POLLUTION
`UNDER THE 2015 OZONE STANDARD
`On October 26, 2015, EPA strengthened the ozone standard based on an extensive
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`42.
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`scientific record demonstrating that the prior ozone standards were inadequate to protect public
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`health and welfare. 80 Fed. Reg. 65,292. EPA strengthened the standard to 70 parts per billion
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`from 75 parts per billion under the 2008 ozone standard. Id.
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`43.
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`An area violates the 2015 standard if air monitoring data shows that the three-year
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`average of the annual fourth highest eight-hour daily maximum ozone concentration exceeds 70
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`parts per billion. 40 C.F.R. § 50.15(b).
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`44.
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`The 2015 revision to the ozone standard triggered EPA’s obligation to “promulgate the
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`designations of all areas” of the country as meeting (“in attainment of”) or not meeting (“in
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`nonattainment of”) the standard within two years—i.e., by October 26, 2017. 42 U.S.C.
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`§ 7407(d)(1)(B)(i) (designations due two years from the date of promulgation of the new or
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`revised standard). EPA made its first designations under the 2015 ozone standard in November
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`2017 and finished designating areas in July 2018. 82 Fed. Reg. 54,232 (Nov. 16, 2017); 83 Fed.
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`Reg. 35,136 (July 25, 2018); 83 Fed. Reg. 25,776 (June 4, 2018).3
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`45. Many areas of the United States are in nonattainment of the 2015 ozone standard; most of
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`these areas are in marginal or moderate nonattainment. 82 Fed. Reg. 54,232 (Nov. 16, 2017); 83
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`Fed. Reg. 35,136 (July 25, 2018); 83 Fed. Reg. 25,776 (June 4, 2018).
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`46.
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`All areas of the country must attain and maintain the standard as expeditiously as
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`practicable. 42 U.S.C. § 7511(a)(1). In addition, areas in marginal nonattainment must attain and
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`maintain the standard “not later than” August and September 2021, and areas in moderate
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`nonattainment must attain and maintain the standard “not later than” August 2024. See 42 U.S.C.
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`§ 7511(a)(1) tbl.1; EPA, Ozone NAAQS Timelines, https://www.epa.gov/ground-level-ozone-
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`pollution/ozone-naaqs-timelines (last visited May 11, 2021).
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`47.
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`The 2015 revision to the ozone standard also triggered the requirement for states to
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`submit to EPA plans that implement the Good Neighbor Provision, as well as other requirements
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`of the Act. 42 U.S.C. § 7410(a) (requiring states to submit implementation plans within three
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`years of the promulgation of a new national ambient air quality standard and setting forth
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`requirements for plans). The deadline for states to adopt and submit plans implementing their
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`Good Neighbor obligations under the 2015 ozone standard was October 26, 2018. Id.
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`3 A number of areas’ designations were remanded to EPA in Clean Wisconsin, et al. v. EPA, 964
`F.3d 1145 (D.C. Cir. 2020) (McHenry County, IL; Porter County, IN; El Paso County, TX;
`Manitowoc County, WI; the Milwaukee, WI counties; Jefferson County, MO; Monroe County,
`IL; Ottawa County, MI; Weld County, CO; Door County, WI; and Sheboygan County, WI).
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`48.
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`Between August 27, 2018 and November 13, 2019, at least 32 states submitted Good
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`Neighbor plans to EPA under the 2015 ozone standard, including Alabama, Arizona, Arkansas,
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`California, Connecticut, Florida, Georgia, Hawaii, Illinois, Indiana, Iowa, Kansas, Kentucky,
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`Louisiana, Maryland, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New
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`Jersey, New York, North Carolina, Ohio, Oklahoma, South Carolina, Tennessee, Texas, West
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`Virginia, Wisconsin, and Wyoming.4
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`49.
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`These states’ plans were deemed “complete” by or before dates between February 27,
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`2019 and November 21, 2019. See 42 U.S.C. § 7410(k)(1)(B) (deeming states’ plans complete
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`“by the date 6 months after receipt of the submission” unless EPA finds the plan incomplete).
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`The following 25 states’ plans were deemed complete either by EPA or by operation of law on or
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`before the following dates:5
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`Minnesota April 1, 2019
`Mississippi Nov. 12, 2019
`Missouri Nov. 15, 2019
`Montana Apr. 1, 2019
`Nevada Mar. 28, 2019
`New Jersey Nov. 13, 2019
`New York Mar. 25, 2019
`North Carolina Apr. 10, 2019
`Ohio Mar. 28, 2019
`Oklahoma Apr. 25, 2019
`South Carolina Mar. 7, 2019
`Tennessee Mar. 17, 2019
`Texas Mar. 12, 2019
`West Virginia Mar. 14, 2019
`Wisconsin Mar. 14, 2019
`Wyoming July 3, 2019
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`Alabama Feb. 27, 2019
`Arizona Mar. 24, 2019
`Arkansas Nov. 7, 2019
`California Apr. 1, 2019
`Connecticut June 6, 2019
`Florida Mar. 26, 2019
`Georgia Mar. 24, 2019
`Hawaii Nov. 13, 2019
`Illinois Nov. 21, 2019
`Indiana May 2, 2019
`Iowa May 30, 2019
`Kansas Mar. 27, 2019
`Kentucky July 9, 2019
`Louisiana Nov. 14, 2019
`Maryland Oct. 24, 2019
`Michigan Sept. 8, 2019
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`4 See EPA, National Status of a 110(a)(2) Ozone (2015) SIP Infrastructure Requirement,
`https://www3.epa.gov/airquality/urbanair/sipstatus/reports/x110_a__2__ozone__2015_section_1
`10_a__2__d__i__-_i_prong_1__interstate_transport_-_significant_contribution_inbystate.html
`(Prong 1), and
`https://www3.epa.gov/airquality/urbanair/sipstatus/reports/x110_a__2__ozone__2015_section_1
`10_a__2__d__i__-_i_prong_2__interstate_transport_-
`_interfere_with_maintenance_inbystate.html (Prong 2).
`5 Id.
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`50.
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`The one-year deadlines for EPA to approve or disapprove these 32 states’ Good Neighbor
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`plans expired by or before dates between February 27, 2020, and November 21, 2020.6 See 42
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`U.S.C. § 7410(k)(2), (3) (requiring approval or disapproval “[w]ithin 12 months” of states’ plans
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`being determined or deemed complete); supra ¶ 49 (listing dates each state’s plans were
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`“complete”).
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`51.
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`As of the date of this filing, EPA has not approved or disapproved these 32 states’
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`complete Good Neighbor plans.7 Thus, EPA has failed to discharge its nondiscretionary duty
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`under 42 U.S.C. § 7410(k)(2), (3).
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`52.
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`EPA’s failure to discharge its nondiscretionary duty under 42 U.S.C. § 7410(k)(2), (3),
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`prolongs the presence of harmful levels of ozone in downwind areas. Many areas of the country
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`are failing to attain the strengthened 2015 ozone standard due in large part to interstate ozone
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`pollution. See EPA, Data File with Ozone Design Values and Ozone Contributions, available at
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`https://www.epa.gov/csapr/revised-cross-state-air-pollution-rule-update. For example, EPA
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`projects that this year, Richmond, New York is failing to attain the standard of 70 parts per
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`billion and receives 12 parts per billion of ozone pollution from New Jersey alone. EPA projects
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`several counties in Wisconsin are failing to attain the standard and receive up to 20 parts per
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`billion from Illinois alone, while only 3 to 9 parts per billion originate in Wisconsin. Id. In fact,
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`6 Id. Additionally, the deadline for EPA to approve or disapprove of Maine’s plan, which was
`“complete” as of August 12, 2020, id., will expire on August 12, 2021. 42 U.S.C. § 7410(k)(2) &
`(3). EPA should not delay in approving or disapproving Maine’s plan.
`7 EPA has proposed but not finalized approval for Alabama, Florida, Georgia, Iowa, North
`Carolina, South Carolina, and Tennessee. Comments were due on EPA’s proposed approval of
`the plans from Alabama, Florida, Georgia, North Carolina, South Carolina, and Tennessee on
`January 29, 2020—more than a year ago—yet EPA has not taken final action. See EPA-R04-
`OAR-2019-0156, https://www.regulations.gov/docket/EPA-R04-OAR-2019-0156 (last visited
`May 11, 2021). EPA also has not taken final action on its proposed approval of Iowa’s plan, see
`EPA-R07-OAR-2020-0093, https://www.regulations.gov/docket/EPA-R07-OAR-2020-0093
`(last visited May 11, 2021).
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`EPA projects that up to 86% of contributions to the counties in Wisconsin that fail to attain the
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`standard come from states other than Wisconsin. Id. (considering contributions from states and
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`excluding initial & boundary concentrations, international and offshore sources, fires, etc.). The
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`pattern repeats for other states, including Connecticut (85.4–93.4% from states other than
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`Connecticut); New York (76.0%); New Mexico (59.0–66.5%); Pennsylvania (52.3–55.8%);
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`Illinois (42.8–50.8%); Arizona (50.5%); Texas (up to 47.7%); and Nevada (40.1%)). Id.
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`53.
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`Even in areas that may currently attain the standard, interstate ozone contributions
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`interfere with maintenance of the standard. Id. (listing areas with average design values of 69
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`parts per billion or maximum design values over 70 parts per billion that receive significant
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`PLAINTIFFS’ INJURIES
`EPA’s unlawful delay harms millions of people, including Plaintiffs’ members, who live,
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`54.
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`work, travel, and engage in recreational activities in areas that fail to attain, or struggle to
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`maintain, the 2015 ozone standard. These