Fed Accused of Turning Blind Eye to Interstate Air Pollution

by Megan Manero, Court House News, Sept 30, 2019

WASHINGTON (CN) — Targeting emissions that drift across state lines, the Sierra Club added another lawsuit Monday to the pile of cases the Environmental Protection Agency under President Donald Trump is battling in federal court.

The complaint filed specifically against Andrew Wheeler alleges the EPA administrator did not call out 12 states for failing to draw up plans to tackle interstate air pollution.

The Sierra Club is asking a federal judge in Washington, D.C., to force Wheeler to perform his required duty under the Clean Air Act to issue “findings of failure” by the states — Arkansas, Hawaii, Louisiana, Maine, Maryland, Mississippi, New Mexico, Pennsylvania, Rhode Island, Utah, Vermont and Virginia — to submit implementation plans for addressing air pollution carried downwind to bordering states.

The Clean Air Act carries a “good neighbor” provision requiring the EPA and states to address interstate pollution impacting the ability of nearby states to adhere to the national air quality standards issued in 2015.

Sierra Club attorney Zachary Fabish explained the provision protects mid-Atlantic and Northeast states, describing them as the “tailpipe of the nation” with the vast majority of pollution carried in on the wind from out of state.

“There are places where they could do everything humanly possible to eliminate local emissions and they’d still have an air quality problem. And that’s because of upwind states,” Fabish said in a phone interview.

The environmental organization notified the EPA by mail on July 10 that it planned to sue Wheeler, a former coal lobbyist. Sixty days passed and the agency still did not issue the notices to the states, according to the complaint.

Fabish said the EPA has “missed severely” the deadline to issue findings of failure to the 12 states. The notices, he said, trigger the agency implementing federal regulations in place of state plans.

“That’s why this deadline isn’t just a paper exercise,” Fabish said. “It has real consequences.”

Democrats and environmental activists have repeatedly accused the EPA under Wheeler’s leadership of taking a combative stance against clean air and water regulations. Earlier this month, the agency revoked a Clean Air Act waiver that allows states to set stricter emissions rules than those currently on the federal books, triggering a lawsuit from California and 22 other states.

A spokeswoman for the EPA said Monday the agency does not comment on pending litigation. The agency has previously stated that it intends to issue findings on the states’ failures to submit plans to prevent interstate pollution by Nov. 22, 2019.

But the deadline for state submissions passed the EPA by almost one year ago to the date of the lawsuit filing — on Oct. 1, 2018. To comply with the Clean Air Act timeline, Wheeler should have taken final action by April 1 finding the 12 states failed to comply with the law.

Lack of action by the EPA, the lawsuit alleges, will cast increased pollution over Sierra Club members in regions downwind from the 12 states, inhibiting their ability to work, travel and engage in outdoor recreation.

“The administrator’s failure to perform the mandatory duties described in this complaint has injured and continues to injure the health, recreational, environmental, organizational, and procedural interests of Sierra Club and its members,” the lawsuit states.

In addition to Fabish, the environmental group is represented in this case by Virginia-based attorney Kathryn Amirpashaie.