Case 1:21-cv-00252-ALC Document 1 Filed 01/12/21 Page 1 of 25
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`UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF NEW YORK
`
`
`
`STATE OF NEW YORK; STATE OF
`CONNECTICUT; STATE OF DELAWARE;
`COMMONWEALTH OF
`MASSACHUSETTS; STATE OF NEW
`JERSEY; and the CITY OF NEW YORK,
`
`
`
` Plaintiffs,
`
`
`
`v.
`
`
`
`ANDREW R. WHEELER, in his official
`capacity as Administrator of the United
`States Environmental Protection Agency;
`and the UNITED STATES
`ENVIRONMENTAL PROTECTION
`AGENCY,
`
`
`
`
`Defendants.
`
`
`Civil No.: 1:21-cv-252
`
`
`
`
`COMPLAINT FOR
`DECLARATORY AND
`INJUNCTIVE RELIEF
`
`
`
`
`(Clean Air Act, 42 U.S.C. §§ 7401 et
`seq.)
`
`
`
`
`
`
`
`Plaintiffs New York, Connecticut, Delaware, Massachusetts, New Jersey, and
`
`the City of New York (collectively, Plaintiff States) allege as follows:
`
`INTRODUCTION
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`1.
`
`Plaintiff States sue for declaratory and injunctive relief through the
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`citizen suit provision of the Clean Air Act (Act) against Andrew R. Wheeler, in his
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`official capacity as Administrator of the United States Environmental Protection
`
`Agency, and against the United States Environmental Protection Agency (together,
`
`EPA). For years, Plaintiff States have struggled to attain and maintain the federal
`
`air quality standards for ozone, a pollutant that harms people and ecosystems and is
`
`the principal component of “smog.” Plaintiff States’ struggles are due in large part to
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`1
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`Case 1:21-cv-00252-ALC Document 1 Filed 01/12/21 Page 2 of 25
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`the excessive amounts of ozone pollution that are emitted by sources in upwind States
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`and carried by prevailing winds into Plaintiff States. The Act requires upwind States
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`to submit to EPA, for approval or disapproval within a statutorily mandated
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`timeframe, plans that fully eliminate those unlawful quantities of pollution being
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`transported downwind. And if EPA disapproves an upwind States’ plan as deficient,
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`that determination triggers EPA’s duty to craft a federal plan for that State within a
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`set timeframe. By failing to timely act on a number of plans submitted by upwind
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`States, EPA is disregarding its mandatory duty and harming Plaintiff States that are
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`entitled to relief under the Good Neighbor Provision.
`
`2.
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`Plaintiff States ask the Court to order EPA to carry out the agency’s
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`mandatory statutory duty to approve or disapprove state implementation plans
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`(SIPs) submitted by Indiana, Kentucky, Michigan, Ohio, Texas, and West Virginia
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`(Upwind States) under 42 U.S.C. § 7410(a)(2)(D)(i)(I), known as the “Good Neighbor
`
`Provision,” for the 2015 ozone national ambient air quality standards (NAAQS). This
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`complaint refers to the portions of the Upwind States’ SIPs that were submitted to
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`EPA pursuant to the Good Neighbor Provision for the 2015 ozone NAAQS (and are
`
`the subject of EPA’s overdue action here) as “Good Neighbor SIPs.”
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`3.
`
`EPA has not made the required determinations approving or
`
`disapproving these Good Neighbor SIPs within 12 months of their being determined
`
`or deemed complete, as required by the Act. 42 U.S.C. § 7410(k)(2) & (3).
`
`4.
`
`As a result, EPA is subject to suit under the Act and may be enjoined to
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`comply with its mandatory duty.
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`Case 1:21-cv-00252-ALC Document 1 Filed 01/12/21 Page 3 of 25
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`5.
`
`To protect the public from unhealthy ozone levels, in 2015 EPA
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`published revised NAAQS for ozone, setting more stringent benchmarks for allowable
`
`ambient ozone pollution, which every State must attain (and thereafter maintain) by
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`deadlines set in the Act. 80 Fed. Reg. 65,292 (Oct. 26, 2015). The New York-Northern
`
`New Jersey-Long Island, NY-NJ-CT metropolitan area (New York Metropolitan
`
`Area), which encompasses nine counties in New York (including all of New York City),
`
`twelve counties in New Jersey and three counties in Connecticut, faces an attainment
`
`deadline in August 2024, based on air quality measured in 2021, 2022 and 2023. The
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`Philadelphia-Wilmington-Atlantic City, PA-NJ-MD-DE metropolitan
`
`area
`
`(Philadelphia Metropolitan Area), which includes portions of plaintiffs Delaware and
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`New Jersey, and the Greater Connecticut Area, which includes five Connecticut
`
`counties not in the New York Metropolitan Area, both face attainment deadlines in
`
`2021, based on air quality measured in 2018, 2019 and 2020.
`
`6.
`
`Air pollution from each of the Upwind States significantly contributes
`
`to nonattainment of the 2015 ozone NAAQS, or interferes with maintenance of the
`
`2015 ozone NAAQS, in one or more of the Plaintiff States. Therefore, the Plaintiff
`
`States need either fully complaint Upwind State Good Neighbor SIPs approved and
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`in place, or if the Upwind States’ Good Neighbor SIPs are deficient, disapproval by
`
`EPA triggering EPA’s obligation to promulgate backstop federal implementation
`
`plans (FIPs) within two years to prevent excessive ozone pollution from these Upwind
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`States. See 42 U.S.C. § 7410(c)(1).
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`3
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`Case 1:21-cv-00252-ALC Document 1 Filed 01/12/21 Page 4 of 25
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`7.
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`Time is of the essence for the Plaintiff States: EPA’s failure to take
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`immediate action to ensure the Upwind States cut air pollution will both prolong
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`harms to the health of our residents from high ozone levels and foreclose the ability
`
`of certain Plaintiff States to demonstrate attainment of the 2015 ozone NAAQS by
`
`their statutory attainment deadlines. Notably, compliance with the New York
`
`Metropolitan Area’s upcoming statutory attainment deadline will be determined in
`
`part by average ozone measurements for the 2021 ozone season, which will begin in
`
`a few short weeks.
`
`8.
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`Plaintiff States ask the Court to find that EPA violated the Act when it
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`failed, within the Act’s 12-month timeframe, to approve or disapprove each Upwind
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`State’s Good Neighbor SIP—the portions of each Upwind State’s SIP purporting to
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`fulfill that State’s Good Neighbor Provision obligations—for the 2015 ozone NAAQS.
`
`9.
`
`The Court should order EPA to take final action approving or
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`disapproving each of the Upwind States’ Good Neighbor SIPs by a date certain.
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`10. Plaintiff States also seek all available litigation costs, including
`
`reasonable attorneys’ fees, under section 304(d) of the Act, 42 U.S.C. § 7604(d).
`
`JURISDICTION
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`11. This Court has subject matter jurisdiction over this action pursuant to
`
`section 304(a)(2) of the Act, 42 U.S.C. § 7604(a)(2), which authorizes any person, after
`
`due notice, to sue to compel the performance of a nondiscretionary duty under the
`
`Act.
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`4
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`Case 1:21-cv-00252-ALC Document 1 Filed 01/12/21 Page 5 of 25
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`12. The Court also has jurisdiction pursuant to 28 U.S.C. § 1331 (federal
`
`question jurisdiction) and 28 U.S.C. § 1361 (suits to compel officer or agency actions).
`
`NOTICE
`
`13.
`
`In satisfaction of section 304(b) of the Act, 42 U.S.C. § 7604(b), and 40
`
`C.F.R. part 54, Plaintiff States sent notice to EPA on September 17, 2020, of their
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`intention to file suit for EPA’s failure to perform the nondiscretionary duties
`
`described here. A copy of the notice letter is attached as Exhibit 1.
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`14. The statutory 60-day notice period has now expired without action by
`
`EPA.
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`VENUE
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`15. Venue in this Court is proper pursuant to 28 U.S.C. § 1391(e) because
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`this suit names an agency of the United States and an officer of the United States
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`acting in his official capacity, and a substantial part of the events or omissions giving
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`rise to the Plaintiff States’ claims occurred in this judicial district.
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`16. EPA’s failure to approve or disapprove the Good Neighbor SIPs prolongs
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`the risk of harm from high ozone levels to millions of residents in each of the Plaintiff
`
`States and hinders attainment and maintenance of the 2015 ozone NAAQS in areas
`
`including without limitation, in the New York Metropolitan Area, which includes
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`New York counties located in this judicial district.
`
`PARTIES
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`17. Plaintiff States—sovereign States and the City of New York—bring this
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`action on behalf of their residents and on their own behalf to protect their respective
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`Case 1:21-cv-00252-ALC Document 1 Filed 01/12/21 Page 6 of 25
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`interests as administrators of healthcare programs and schools, as employers, and as
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`regulators and sovereigns responsible for protecting and preserving natural resources
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`held in trust.
`
`18. Plaintiff States are all “persons” defined by section 302(e) of the Act, 42
`
`U.S.C. § 7602(e).
`
`19. EPA is the federal agency charged with implementing the Act.
`
`20. Andrew R. Wheeler is the Administrator of EPA and is sued in his
`
`official capacity.
`
`21.
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` As a result of EPA’s failure to timely regulate upwind ozone pollution,
`
`Plaintiff States have suffered and will continue to suffer harm from the interstate
`
`transport of air pollution. Sources of air pollution in each of the Upwind States cause
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`air quality problems within the Plaintiff States, and those upwind sources
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`significantly contribute to nonattainment and maintenance problems for the 2015
`
`ozone NAAQS in areas within Plaintiff States’ jurisdictions to the detriment of the
`
`health and welfare of our residents.
`
`22.
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`If EPA does not require Upwind States to timely reduce their emissions
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`as the law requires, certain downwind Plaintiff States will be unable to come into
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`attainment by the upcoming statutory deadlines for attaining clean air, which will
`
`trigger even more stringent and costly regulatory obligations for those Plaintiff
`
`States.
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`6
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`Case 1:21-cv-00252-ALC Document 1 Filed 01/12/21 Page 7 of 25
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`STATUTORY BACKGROUND
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`23. The Clean Air Act seeks to “protect and enhance the quality of the
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`Nation's air resources so as to promote the public health and welfare and the
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`productive capacity of its population.” 42 U.S.C. § 7401(b)(1). EPA’s establishment of
`
`NAAQS is one of the principal means of addressing the most common pollutants such
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`as ozone. Establishment and implementation of the ozone NAAQS relies on
`
`cooperative partnership between federal, State and local governments. See, e.g., 42
`
`U.S.C. § 7402(a) (describing the EPA Administrator’s responsibility to encourage
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`“cooperative activities” by the States and local governments as well as Federal
`
`departments and agencies to prevent and control air pollution).
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`24.
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`Sections 108 and 109 of the Act require EPA to establish and periodically
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`revise NAAQS that reflect the maximum allowable ambient air concentrations for
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`certain pollutants. 42 U.S.C. §§ 7408-7409. The NAAQS must be set at levels that
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`are protective of public health and public welfare. Id. § 7409(b).
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`25.
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`States have primary responsibility for ensuring that air quality within
`
`their borders meets these standards. See 42 U.S.C. § 7410(a). Within three years of
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`EPA promulgating a new or revised ozone NAAQS, each State must submit a SIP
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`that provides for the “implementation, maintenance, and enforcement” of the NAAQS
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`by statutory attainment deadlines. Id. § 7410(a)(1). These plans are often referred to
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`as “Infrastructure” SIPs.
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`26. An Infrastructure SIP must meet the requirements of 42 U.S.C. §
`
`7410(a)(2), including the requirements of the Good Neighbor Provision. The Good
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`Neighbor Provision requires that each State’s Infrastructure SIP contain adequate
`
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`Case 1:21-cv-00252-ALC Document 1 Filed 01/12/21 Page 8 of 25
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`provisions to prohibit sources within the State from emitting air pollution in amounts
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`that will “contribute significantly to nonattainment in, or interfere with maintenance
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`by, any other State with respect to any [NAAQS].” 42 U.S.C. § 7410(a)(2)(D)(i)(I).
`
`27. The Act requires EPA to determine whether each State has submitted
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`an administratively complete SIP, including an Infrastructure SIP, “no later than 6
`
`months after the date, if any, by which a State is required to submit the plan or
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`revision.” 42 U.S.C. § 7410(k)(1)(B).
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`28.
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`If a State fails to submit any required element of a SIP, including
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`provisions that ensure the State’s compliance with the Good Neighbor Provision, that
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`State’s SIP is deemed incomplete and EPA has a non-discretionary duty to make a
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`determination that the State failed to submit the required SIP. Id.
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`29. Conversely, when a State submits a SIP, the Administrator must
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`determine that it is complete or incomplete.
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`30. Where the Administrator does not make any such affirmative
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`determination by six months after the date of submission, the SIP “shall on that date
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`be deemed by operation of law to meet such minimum criteria.” Id. § 7410(k)(1)(B).
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`31. Once an Infrastructure SIP submission is complete (either by EPA
`
`determination or by operation of law), EPA must approve or disapprove the SIP
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`within 12 months. See 42 U.S.C. § 7410(k)(2) (“[w]ithin 12 months of a determination
`
`by the Administrator (or a determination deemed by operation of law) . . . the
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`Administrator shall act on the submission in accordance with paragraph (3)”
`
`(emphasis added)).
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`Case 1:21-cv-00252-ALC Document 1 Filed 01/12/21 Page 9 of 25
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`32. The Administrator’s action must consist of either an approval (in whole
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`or in part) or disapproval (in whole or in part) of the SIP, but “[t]he plan revision shall
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`not be treated as meeting the requirements of this chapter until the Administrator
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`approves the entire plan revision as complying with the applicable requirements of
`
`this chapter.” Id. § 7410(k)(3).
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`33. When EPA approves a SIP that fully complies with the Good Neighbor
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`Provision, the SIP’s requirements take effect, ensuring that an Upwind State controls
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`its in-state sources’ emissions as required by the Good Neighbor Provision.
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`34.
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`If EPA disapproves a Good Neighbor SIP, that determination
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`establishes a two-year deadline for EPA to promulgate a FIP ensuring that the State
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`comes into compliance with the Good Neighbor Provision, unless the State submits a
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`complete and approvable Good Neighbor SIP in the interim. Id. § 7410(c)(1)(B).
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`35.
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`In implementing prior ozone standards, such as the 2008 ozone NAAQS,
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`EPA has issued FIPs for many of the Upwind States because EPA disapproved their
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`Good Neighbor SIPs or found that States failed to submit SIPs fully complying with
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`the Good Neighbor Provision. See, e.g., Cross-State Air Pollution Rule Update for the
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`2008 Ozone NAAQS, 81 Fed. Reg. 74,504, 74,514 (Oct. 26, 2016) (CSAPR Update); see
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`also Revised Cross-State Air Pollution Rule Update for the 2008 Ozone NAAQS, 85
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`Fed. Reg. 68,964, 68,974 (Oct. 30, 2020) (Proposed Revised CSAPR Update).
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`FACTUAL BACKGROUND
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`36. Ground-level ozone is not emitted directly into the air, but is a secondary
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`air pollutant that forms when other atmospheric pollutants, known as ozone
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`Case 1:21-cv-00252-ALC Document 1 Filed 01/12/21 Page 10 of 25
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`“precursors,” such as nitrogen oxides (NOx) and volatile organic compounds (VOCs),
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`react in the presence of sunlight. 80 Fed. Reg. at 65,299.
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`37. EPA has found significant negative health effects in individuals exposed
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`to elevated levels of ozone, including coughing, throat irritation, lung tissue damage,
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`and aggravation of existing conditions, such as asthma, bronchitis, heart disease, and
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`emphysema. Id. at 65,302-11. Exposure to ozone has also been linked to premature
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`mortality. Id. Some subpopulations face elevated risks from exposure to ozone
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`pollution, including children, the elderly, and those with existing lung diseases, such
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`as asthma. Id.
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`38. People of color and those living below the federal poverty standard
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`disproportionately bear the consequences of ozone pollution. Under Executive Order
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`12,898, 59 Fed. Reg. 7,629 (Feb. 16, 1994), EPA must identify and address
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`disproportionate human health or environmental effects of its activities on
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`populations of color and low-income populations. EPA has previously acknowledged
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`that these populations are likely to face greater risk of adverse ozone-related health
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`impacts due to higher rates of asthma. 85 Fed. Reg. 49,830, 49,850 (Aug. 14, 2020).
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`39. For decades, EPA has known that formation and transport of ozone
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`occurs on a regional scale over much of the eastern United States. Pollution from
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`sources located in multiple upwind States contributes to high ozone levels in
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`downwind States, such as Plaintiff States. In large part due to the substantial
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`quantities of ozone pollution transported from upwind areas, many eastern States,
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`including Plaintiff States, have faced decades-long challenges in attaining clean air.
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`Case 1:21-cv-00252-ALC Document 1 Filed 01/12/21 Page 11 of 25
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`40. EPA has determined that many of these downwind States cannot attain
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`the NAAQS without reductions in the “interstate transport” of ozone precursor
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`pollution from upwind sources. See, e.g., CSAPR Update, 81 Fed. Reg. at 74,514; see
`
`also Proposed Revised CSAPR Update, 85 Fed. Reg. at 68,974. And for those
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`downwind areas that have been able to come into attainment, reductions in emissions
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`from upwind sources remain critical to ensuring their ability to maintain compliance,
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`as demonstrated by continued exceedances of the ozone standard on certain high
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`ozone days even after attainment designations.
`
`41.
`
`In 2015, based on updated scientific information about the health risks
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`of ozone at lower concentrations, EPA revised the ozone NAAQS, setting the primary
`
`and secondary standards at 70 parts per billion. 80 Fed. Reg. at 65,292. EPA
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`promulgated the 2015 ozone NAAQS on October 1, 2015. See, e.g., 83 Fed. Reg. 62,998
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`(Dec. 6, 2018) (EPA implementation rule stating that the 2015 ozone NAAQS “were
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`promulgated on October 1, 2015”).
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`42. According to EPA, the Upwind States have submitted Good Neighbor
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`SIPs; i.e., Infrastructure SIPs that purport to fulfill their Good Neighbor Provision
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`obligations for the 2015 ozone NAAQS as required under section 110(a)(2)(D) of the
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`Act.1 Yet, even though more than 12 months have passed since these Good Neighbor
`
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`1 See EPA, National Status of a 110(a)(2) Ozone (2015) SIP Infrastructure
`Requirement, Requirement: Section 110(a)(2)(D)(i) – I Prong 1: Interstate Transport
`– significant contribution,
`https://www3.epa.gov/airquality/urbanair/sipstatus/reports/x110_a__2__ozone__201
`5_section_110_a__2__d__i__-_i_prong_1__interstate_transport_-
`_significant_contribution_inbystate.html (last visited Jan. 12, 2021); and
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`11
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`Case 1:21-cv-00252-ALC Document 1 Filed 01/12/21 Page 12 of 25
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`SIP submissions were respectively either determined or deemed complete, EPA has
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`not issued the required approval or disapproval for these Good Neighbor SIPs, as
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`required by the Act. See 42 U.S.C. §§ 7410(k)(2) & (3).
`
`43.
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`Specifically, Texas’s SIP submission was determined or deemed
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`complete on March 12, 2019 with respect to its Good Neighbor Provision obligations
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`under the 2015 ozone NAAQS (i.e., Section 110(a)(2)(D)(i) - I Prong 1: Interstate
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`transport - significant contribution, and Section 110(a)(2)(D)(i) - I Prong 2: Interstate
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`transport - interfere with maintenance).2 Therefore, EPA had a statutory deadline of
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`March 12, 2020 to approve or disapprove these portions of Texas’s SIP. EPA did not
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`approve or disapprove of these portions of Texas’s SIP by the deadline, and still has
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`not done so.
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`44. West Virginia’s SIP submission was determined or deemed complete on
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`March 14, 2019 with respect to its Good Neighbor Provision obligations under the
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`2015 ozone NAAQS (i.e., Section 110(a)(2)(D)(i) - I Prong 1: Interstate transport -
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`significant contribution, and Section 110(a)(2)(D)(i) - I Prong 2: Interstate transport
`
`- interfere with maintenance).3 Therefore, EPA had a statutory deadline of March 14,
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`2020 deadline to approve or disapprove these portions of West Virginia’s SIP. EPA
`
`
`EPA, National Status of a 110(a)(2) Ozone (2015) SIP Infrastructure Requirement,
`Section 110(a)(2)(D)(i) - I Prong 2: Interstate transport - interfere with
`maintenance,
`https://www3.epa.gov/airquality/urbanair/sipstatus/reports/x110_a__2__ozone__201
`5_section_110_a__2__d__i__-_i_prong_2__interstate_transport_-
`_interfere_with_maintenance_inbystate.html (last visited Jan. 12, 2021).
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`2 Id.
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`3 Id.
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`Case 1:21-cv-00252-ALC Document 1 Filed 01/12/21 Page 13 of 25
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`did not approve or disapprove of these portions of West Virginia’s SIP by the deadline,
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`and still has not done so.
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`45. Ohio’s SIP submission was determined or deemed complete on March
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`28, 2019 with respect to its Good Neighbor Provision obligations under the 2015 ozone
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`NAAQS (i.e., Section 110(a)(2)(D)(i) - I Prong 1: Interstate transport - significant
`
`contribution, and Section 110(a)(2)(D)(i) - I Prong 2: Interstate transport - interfere
`
`with maintenance).4 Therefore, EPA had a statutory deadline of March 28, 2020 to
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`approve or disapprove these portions of Ohio’s SIP. EPA did not approve or
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`disapprove of these portions of Ohio’s SIP by the deadline, and still has not done so.
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`46.
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`Indiana’s SIP submission was determined or deemed complete on May
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`2, 2019 with respect to its Good Neighbor Provision obligations under the 2015 ozone
`
`NAAQS (i.e., Section 110(a)(2)(D)(i) - I Prong 1: Interstate transport - significant
`
`contribution, and Section 110(a)(2)(D)(i) - I Prong 2: Interstate transport - interfere
`
`with maintenance).5 Therefore, EPA had a statutory deadline of May 2, 2020 to
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`approve or disapprove these portions of Indiana’s SIP. EPA did not approve or
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`disapprove of these portions of Indiana’s SIP by the deadline, and still has not done
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`so.
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`47. Kentucky’s SIP submission was determined or deemed complete on July
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`9, 2019 with respect to its Good Neighbor Provision obligations under the 2015 ozone
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`NAAQS (i.e., Section 110(a)(2)(D)(i) - I Prong 1: Interstate transport - significant
`
`
`4 Id.
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`5 Id.
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`Case 1:21-cv-00252-ALC Document 1 Filed 01/12/21 Page 14 of 25
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`contribution, and Section 110(a)(2)(D)(i) - I Prong 2: Interstate transport - interfere
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`with maintenance).6 Therefore, EPA had a statutory deadline of July 9, 2020 to
`
`approve or disapprove these portions of Kentucky’s SIP. EPA did not approve or
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`disapprove of these portions of Kentucky’s SIP by the deadline, and still has not done
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`so.
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`48. Michigan’s SIP submission was determined or deemed complete on
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`September 8, 2019 with respect to its Good Neighbor Provision obligations under the
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`2015 ozone NAAQS (i.e., Section 110(a)(2)(D)(i) - I Prong 1: Interstate transport -
`
`significant contribution, and Section 110(a)(2)(D)(i) - I Prong 2: Interstate transport
`
`- interfere with maintenance).7 Therefore, EPA had a statutory deadline of September
`
`8, 2020 to approve or disapprove these portions of Michigan’s SIP. EPA did not
`
`approve or disapprove of these portions of Michigan’s SIP by the deadline, and still
`
`has not done so.
`
`49. EPA has not yet completed its mandatory duty to approve or disapprove
`
`the Good Neighbor SIPs submitted by each of the Upwind States related to significant
`
`contribution or interference with maintenance for the 2015 ozone NAAQS.8
`
`
`6 Id.
`
`7 Id.
`
`8 After the Notice of Intent to Sue letter was sent in September 2020, EPA also
`missed deadlines to approve or disapprove Infrastructure SIPs addressing the Good
`Neighbor Provision for the 2015 ozone NAAQS for Maryland by October 24, 2020
`and Illinois by November 21, 2020, and still has not done so.
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`Case 1:21-cv-00252-ALC Document 1 Filed 01/12/21 Page 15 of 25
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`50. Therefore, the agency is in violation of the Act for its failure to timely
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`perform those nondiscretionary duties with respect to the Good Neighbor SIPs
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`submitted by the Upwind States.
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`HARM TO PLAINTIFF STATES FROM EPA’S FAILURE TO COMPLY
`WITH ITS MANDATORY STATUTORY DUTY
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`51. Emissions from each of the Upwind States contribute significantly to
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`problems attaining or interfere with maintenance of the 2015 ozone NAAQS in areas
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`within the Plaintiff States.
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`52. For ozone, the Act classifies nonattainment areas based on how far out
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`of attainment or how persistent the area’s nonattainment is. 42 U.S.C. § 7511(a). The
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`classifications are Marginal, Moderate, Serious, Severe, and Extreme. 42 U.S.C.
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`§7511(a).
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`53. Areas designated as “nonattainment” are required to attain the new
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`primary standard “as expeditiously as practicable but not later than” dates set forth
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`in the Act based on the area’s classification. Id. The further from attainment that an
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`area is, the more time it has to come into compliance. Following EPA’s promulgation
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`of the 2015 ozone NAAQS, EPA designated the New York Metropolitan Area as a
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`nonattainment area with a moderate classification.9 The Philadelphia Metropolitan
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`Area and Greater Connecticut Area were each classified as marginal nonattainment
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`areas.
`
`
`9 83 Fed. Reg. 25,776, 25,821 (Jun. 4, 2018).
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`Case 1:21-cv-00252-ALC Document 1 Filed 01/12/21 Page 16 of 25
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`54. Even outside of these formally designated nonattainment areas, ozone
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`monitors in other locations within the Plaintiff States continue to measure unhealthy
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`ozone levels that exceed the standard.10
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`55. Air quality modeling demonstrates that the high concentrations of ozone
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`measured in these densely-populated downwind regions are, in significant measure,
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`the result of emissions from major stationary sources of NOx located outside and
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`upwind of each State, including in the Upwind States.
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`56. Even as many of the Upwind States have done little to control emissions
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`from sources within their borders, Plaintiff States have long been involved in
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`substantial efforts to reduce emissions from in-state sources of NOx and to mitigate
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`the regional transport of NOx. Many Plaintiff States have cut ozone precursor
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`emissions year after year to meet and exceed “reasonable further progress” targets
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`mandated by 42 U.S.C. § 7511a, including by requiring in-state sources to meet a
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`variety of stringent emissions standards and comply with NOx Reasonably Available
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`Control Technology (RACT).
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`57. Plaintiff States have also implemented stringent emissions control
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`measures related to mobile sources, and participate in the Ozone Transport
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`Commission, which developed the first NOx Budget Program that dramatically
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`reduced ozone transport within the Ozone Transport Region. Plaintiff States also
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`10 For example, in 2019 and 2020, monitors at Lynn and Martha’s Vineyard,
`Massachusetts, registered numerous exceedances of the 2015 ozone NAAQS. See
`EPA, Region 1: New England, https://www3.epa.gov/region1/airquality/
`ma_over.html.
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`Case 1:21-cv-00252-ALC Document 1 Filed 01/12/21 Page 17 of 25
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`have each participated in one or more of the multiple iterations of federal NOx Budget
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`trading programs, including the 2005 Clean Air Interstate Rule (CAIR), 70 Fed. Reg.
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`25,162 (May 12, 2005); 2011 Cross-State Air Pollution Rule (CSAPR), 76 Fed. Reg.
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`48,208 (Aug. 8, 2011); and 2016 CSAPR Update; 81 Fed. Reg. at 74,504 .
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`58. While EPA has failed to timely take the actions required by the Act to
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`remedy ongoing ozone problems, the agency’s own modeling projects that emissions
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`from sources in the Upwind States will continue to cause downwind air quality
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`problems in the years ahead. For example, EPA projects that even in 2023, the New
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`York Metropolitan Area is likely to remain in nonattainment of the 2015 ozone
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`NAAQS.11 Further, EPA’s modeling projects that each of the Upwind States
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`individually will still be contributing ozone precursors to downwind nonattainment
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`or maintenance problems in amounts that exceed the EPA-selected screening level
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`for determining whether a contribution is “significant” under the Good Neighbor
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`Provision in one or more of the Plaintiff States’ nonattainment or maintenance areas
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`in future years, such as the 2021 and 2023 ozone seasons.12 Indeed, in the Proposed
`
`
`11 See 84 Fed. Reg. 56,058, 56,080-81 (Oct. 18, 2019); see also State of New York v.
`EPA, 964 F.3d 1214, 1220 (D.C. Cir. 2020) (“The EPA agreed with New York . . .
`that the New York Metropolitan Area would likely be in nonattainment of the 2015
`NAAQS in 2023.”).
`
`12 See EPA, 2015 Ozone NAAQS Interstate Transport Assessment Design Values
`and Contributions (rev. May 2018), available at
`https://www.epa.gov/airmarkets/memo-and-supplemental-information-regarding-
`interstate-transport-sips-2015-ozone-naaqs; see EPA, Ozone Design Values &
`Contributions Proposed Revised CSAPR Update, Attachment 5 to Air Quality
`Modeling TSD for the Proposed Revised Cross-State Air Pollution Rule Update, Doc.
`No. EPA-HQ-OAR-2020-0272-0064_attachment_5,“2023 DVs and Contributions
`Tab,” available at https://www.regulations.gov/document?D=EPA-HQ-OAR-2020-
`0272-0064.
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`Case 1:21-cv-00252-ALC Document 1 Filed 01/12/21 Page 18 of 25
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`Revised CSAPR Update, EPA projected that even with the additional emissions
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`reductions proposed for certain of the Upwind States in the 2021 through 2024 ozone
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`seasons, significant contribution to nonattainment and
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`interference with
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`maintenance of the less-stringent 75 ppb 2008 ozone NAAQS would persist in the New
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`York Metropolitan Area through the 2024 ozone season. 85 Fed. Reg. at 69,008,
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`68,969.
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`59. EPA’s failure to timely act to approve or disapprove Upwind States’
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`Good Neighbor SIPs for the 2015 ozone NAAQS is a clear breach of EPA’s statutory
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`duty. EPA’s failure harms the public health and welfare of millions of residents in
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`the Plaintiff States.
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`60. Plaintiff States have a sovereign duty and responsibility to protect the
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`health and welfare of our residents and the quality of our environment. Yet in large
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`part because of ozone generated and transported from Upwind States—areas where
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`the Plaintiff States lack any direct authority to reduce emissions—our residents
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`continue to breathe unhealthy air.
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`61. Until EPA approves or disapproves the Upwind States’ Good Neighbor
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`SIPs, Plaintiff States are denied the relief provided by the Good Neighbor Provision,
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`either through compliant Good Neighbor SIPs or EPA-issued FIPs, and may face
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`delays in being able to challenge any deficiencies in Good Neighbor SIPs or FIPs.
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`62. EPA’s failure to comply with its non-discretionary duties also places
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`unfair economic and administrative burdens on many of the Plaintiff States, which
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`are required to timely meet our attainment obligations under the Act or face punitive
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`Case 1:21-cv-00252-ALC Document 1 Filed 01/12/21 Page 19 of 25
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`consequences. For example, the New York Metropolitan Area, designated by EPA as
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`a “moderate” nonattainment area, has an attainment deadline of August 3, 2024.13
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`Attainment must be demonstrated based on air quality readings measured in the
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`three-year period beginning in March 2021, only a few weeks from now. Preliminary
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`ozone readings in the 2020 ozone season show that the New York Metropolitan Area
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`needs significant relief from ozone precursor pollution transported from the Upwind
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`States as expeditiously as practicable. Without significant reductions in upwind, out-
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`of-state pollution in the 2021 ozone season and the subsequent years used to
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`determine attainment by the 2024 deadline, the New York Metropolitan Area may be
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`reclassified (i.e. be downgraded in air quality rating) to “serious” nonattainment
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`status and be required to implement additional emission reductions for in-state
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`sources. See 42 U.S.C. § 7511(b)(2).
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`63. The Philadelphia Metropolitan Area and Greater Connecticut
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`attainment deadlines are even sooner: 2021.14 Certified ozone data from 2018 and
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`2019 show numerous exceedances of the ozone standards, and preliminary ozone
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`readings in the 2020 ozone season show that, despite Delaware, New Jersey and
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`Connecticut’s successes in cutting in-state emissions, those areas still will likely not
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`attain by 2021 and may be reclassified (i.e. downgraded in air quality rating) to
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`“moderate” nonattainment status. See 42 U.S.C. § 7511(b)(2). Reclassification would
`
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`13 See EPA, Fact Sheet – Final Area Designations for the National Ambient