The Clean Air Lawsuit

Attorney General Kilmartin Joins 15 AGs in New Lawsuit Against Trump EPA for Flouting Clear Air Requirements



Attorneys General Sue EPA for Failing to Designate Areas with Unhealthy Levels of Smog


The Clean Air Act’s “Trigger” for Required Reductions in this Dangerous Air Pollution Attaining

National Smog Standards Would Prevent up to 660 Premature Deaths, 230,000 Asthma Attacks in Kids


Attorney General Peter F. Kilmartin, joining a coalition of 15 state Attorneys General, filed a lawsuit against the Environmental Protection Agency (EPA) and EPA Administrator Scott Pruitt for failing to meet the Clean Air Act’s statutory deadline for designating areas of the country impacted by unhealthy levels of ground-level ozone (commonly referred to as smog).


In addition to Rhode Island, the lawsuit was filed by attorneys general from California, Connecticut, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota (by and through its Minnesota Pollution Control Agency), New York, Oregon, Pennsylvania, Vermont, Washington, and the District of Columbia.


With this suit, the coalition makes good on its pledge to sue the EPA if it failed to meet this key statutory and public health requirement.  In August, a coalition of Attorneys General sued the EPA for illegally delaying the designations; the next day, the EPA reversed course and withdrew the delay. However, the EPA missed the statutory deadline of October 1st for designation and, four days later, the coalition filed a notice of intent to sue the Agency for failing to issue the required designations.


“We gave Director Pruitt and the EPA the benefit of the doubt that they would do the right thing and follow the law, but once again, they have failed to do so,” said Attorney General Kilmartin.  “Clearly their promise to make good on implementing the smog designations as required under the Clean Air Act was a politically-calculated delay tactic.  We cannot and will not sit idly by as the EPA’s inaction continues to threaten the health and safety of our citizens.”


Reducing smog levels is vital to protecting public health, as smog significantly exacerbates certain health conditions, such as heart disease, bronchitis, and asthma, especially in children and the elderly. 


The EPA’s own studies demonstrate that pollution from states upwind of Rhode Island contributes substantially to the state’s dangerous smog problem.  The designation of areas with unhealthy smog levels plays a key role under the Clean Air Act in addressing the pollutant’s severe harms to public health, triggering requirements for state-specific plans and deadlines to reduce pollution in the designated areas.


In October 2015, the EPA revised and strengthened the national air quality standards for smog. The Clean Air Act requires the Agency, within two years after issuance of new or revised standards, to designate areas of the county that are in “attainment” or “non-attainment” with these public health and welfare standards. In the case of the 2015 smog standards, EPA was required to issue attainment or non-attainment designations by October 1, 2017. 


However, on June 28, 2017, EPA Administrator Pruitt published a notice stalling the deadline for the smog designations for all areas in the country for one year. Shortly thereafter, on August 1st, a coalition of 16 Attorneys General which included Attorney General Kilmartin sued the EPA for illegally delaying the designations. The next day, EPA abruptly reversed course and announced it was withdrawing the designations delay, although it remained equivocal on whether it would meet the October 1st deadline.


The October 1, 2017 deadline then passed without EPA making any of the required designations, in violation of the Clean Air Act.  A few days later, the coalition notified EPA of its intention to sue if the agency failed to correct the violation within 60 days.  On November 6, 2017, EPA issued designations for some areas of the county, but failed to make any “non-attainment” area designations, which are the designations that trigger smog reduction measures to improve air quality and comply with the standards.


The areas EPA failed to designate include many densely populated areas – such as Washington and Kent counties in Rhode Island, and all of Connecticut.  In fact, more than half of the U.S. population lives in the undesignated areas.  The 60-day notice period expired December 5th without the EPA issuing all of the statutorily-required designations.   


The designation of areas for national air quality standards is a key statutory obligation under the Clean Air Act – and vital to protecting the public’s health. For areas designated as in non-attainment for the standards, states must adopt “implementation plans” – a collection of actions that the state will undertake to reduce pollution in order to ensure standards will be met in those areas. The deadlines for submitting implementation plans – and for ensuring that air quality standards are met within designated areas – are both directly keyed to the date of EPA designations.   EPA’s failure to timely designate nonattainment areas delays the Clean Air Act’s requirements for measures to reduce pollution in these areas, thus resulting in further harm to public health.


According to EPA, the 2015 updated smog standards will improve public health protection – particularly for at-risk groups such as children, older adults, people of all ages who have lung diseases like asthma, and people who are active outdoors, especially outdoor workers. In fact, the EPA conservatively estimated that meeting the new smog standards would result in net annual public health benefits of up to $4.5 billion starting in 2025 (not including California), while also preventing approximately:


•           316 to 660 premature deaths;

•           230,000 asthma attacks in children;

•           160,000 missed school days;

•           28,000 missed work days;

•           630 asthma-related emergency room visits; and

•           340 cases of acute bronchitis in children.


Smog forms when nitrogen oxides, volatile organic compounds, and carbon monoxide emitted from power plants, motor vehicles, factories, refineries, and other sources react under suitable conditions.  Because these reactions occur in the atmosphere, smog can form far from where its precursor gases are emitted and, once formed, smog can travel far distances. That is why, despite enacting stringent in-state controls on sources of these pollutants, many states are not, alone, able to meet federal health-based air quality standards for smog.


The lawsuit was filed on Tuesday, December 5th in the U.S. District Court for the Northern District of California, and can be read here: Case 3:17-cv-06936 .