Maryland Files Suit Against EPA Over Downwind Pollution

In September, Maryland Attorney General (AG) Brian E. Frosh announced that the state has petitioned a federal court for an order directing the U.S. Environmental Protection Agency (EPA) to respond to a previously filed complaint alleging that several electric generating facilities in states upwind from Maryland were in violation of the so-called "good neighbor provision" of the Clean Air Act. In its pleading before the U.S. District Court for the District of Maryland, the AG alleged that although it had been almost a year since Maryland had first sought EPA intervention in the matter, the agency had yet to address the complaint, missing various procedural deadlines and requirements thereto. 

In its original filing with the EPA, submitted November 16, 2016, Maryland had contended that noxious emissions from power plants located in Indiana, Kentucky, Ohio, Pennsylvania, and West Virginia were drifting over to Maryland, causing Maryland to be unable to meet the National Ambient Air Quality Standards (NAAQS) established under Section 126 of the Clean Air Act. Maryland pointed out that the Clean Air Act explicitly provides under its good neighbor clauses that states that know that emissions from jurisdictional generating facilities could impact downwind states must develop state implementation plans (SIPs) through which to ameliorate pollution that can be transported to downwind regions, thereby impacting the ability of downwind states to comply with the NAAQS. 

In the petition it presented to the EPA last November, Maryland maintained that the SIPs in effect for the five listed states were inadequate and/ or were being insufficiently enforced by the EPA. Maryland also noted in its filing that the EPA just two months earlier, in September of 2016, had updated its cross-state air pollution regulations to take into account more current data on emissions and associated modifications to the NAAQS. Maryland averred that the five states it had identified as contributing to its air quality problems continued to be among the states subject to the crossstate air pollution rules. 

In addition, Maryland cited to prior EPA rulings that recognized that those areas within Maryland that have failed to attain the NAAQS were directly affected by emissions from other states. Maryland therefore asked the EPA to enter an order declaring that 36 particular power plants in the five listed states were emitting nitrogen oxides in excess of the levels allowed under the NAAQS. 

In the complaint submitted last week, though, AG Frosh informed the court that the EPA had taken no action whatsoever on the state's November petition. More specifically, the AG charged that despite Section 126(b) setting forth a 60-day timeline for the EPA to address such petitions, the EPA had not replied to Maryland at all. The AG reported that the only move made by the EPA was to unilaterally grant itself a six-month extension of time, deeming July 15, 2017 to be its new deadline. 

However, Maryland stated, even that new date has now come and gone, with the EPA giving no indication that it ever intends to take up Maryland's November 2016 complaint. As a result, the AG said, Maryland had sent notice to the EPA that it would be commencing a lawsuit. Such prior notification is required in the Clean Air Act, the AG said. 

In its prayer for relief, Maryland requested that the court find the EPA and its administrator, Scott Pruitt, to be in violation of Section 126 of the Clean Air Act because they have neglected to abide by the procedural elements delineated in the law and failed to timely respond to the state's petition. The petition before the court concomitantly seeks a court directive requiring the EPA to hold a hearing on the original complaint within 30 days and that the EPA cover all of Maryland's associated costs of litigation, including attorneys' fees. 

In a separate statement accompanying the court filing, AG Frosh emphasized that the Clean Air Act is unambiguous about the EPA's duties pursuant to Section 126 complaints. He implored the court to issue a ruling that would prevent the EPA and Administrator Pruitt from continuing to ignore Maryland's initial petition and permitting power plants in the five states from ongoing noncompliance with the NAAQS and their own respective SIPs. State of Maryland v. Scott Pruitt et al., Case 1:17-cv-02873, filed Sept. 27, 2017 (D.Md.).