The AGs Versus the EPA

Attorney General Kilmartin Sues EPA to Protect Rhode Island from Out-of-State Air Pollution


8 AGs File Suit, Challenging EPA’s Refusal to Require Upwind States to Control Smog Pollution that Blows into Northeast States


Attorney General Peter F. Kilmartin, joining a coalition of eight attorneys general, filed a lawsuit today against the Environmental Protection Agency (EPA) to force action under the Clean Air Act to ensure upwind states adequately control the pollution that blows into Rhode Island and other downwind states.  The EPA’s own studies demonstrate that pollution from states upwind of Rhode Island contributes substantially to the state’s harmful levels of smog. 


“It’s been long established that Rhode Island and the other Northeast states are negatively impacted by pollution from upwind states, and this latest decision by the EPA flouts sound environmental science and puts many Rhode Islanders – especially young children and older people – at serious risk of health issues,” said Attorney General Kilmartin.


Specifically, the suit challenges the EPA’s denial of a petition that a number of states filed in late 2013 for the Agency to add nine additional states to the “Ozone Transport Region,” a group of states established under the federal Clean Air Act that must act in concert to reduce smog pollution within the region.


Click here to read the lawsuit, which was filed by the attorneys general of New York, Connecticut, Delaware, Maryland, Massachusetts, Pennsylvania, Rhode Island, and Vermont.


Reducing smog levels is vital to protecting the health of residents in Rhode Island.  Elevated levels of smog can cause a host of significant health effects, including coughing, throat irritation, lung tissue damage, and the aggravation of existing medical conditions, such as asthma, bronchitis, heart disease, and emphysema.  According to the American Lung Association’s “2017 State of the Air Report,” more than 10 percent of all Rhode Islanders are at risk for pediatric or adult asthma due to smog and particle pollution in the air.


Congress created the Ozone Transport Region to help states address pervasive smog problems in the northeastern United States.  By statute, the Region consists of 11 states – Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Vermont – and the District of Columbia metropolitan area. 


In December 2013, a number of northeastern states submitted a petition under the Clean Air Act asking EPA to add nine additional states shown or projected through modelling and analysis to contribute to violations of federal smog standards in the Ozone Transport Region. 


These nine states are Illinois, Indiana, Kentucky, Michigan, North Carolina, Ohio, Tennessee, Virginia, and West Virginia.  When EPA took no any action on that petition, a coalition of states filed suit against the EPA to compel it to act.  The coalition of states subsequently negotiated a consent decree that required EPA to approve or disapprove the petition no later than October 27, 2017.  On that date, Trump EPA Administrator Pruitt denied the states’ Ozone Transport Region petition. 


Today’s suit, which was filed in the U.S. Court of Appeals for the District of Columbia Circuit, asks the court to review Administrator Pruitt’s denial of the petition.  The coalition will ask the court to determine that the denial is unlawful and to vacate it.


Ozone Transport Region

Each state within the Ozone Transport Region must develop and implement plans that achieve controls on pollutants that contribute to the formation of smog. However, despite enacting stringent in-state controls on sources of these pollutants, many states within the Region – including Rhode Island – are not able to meet federal health-based air quality standards for smog, significantly due to upwind smog pollution.


Modeling and analysis performed by EPA, as well as by states, has shown that interstate transport of air pollution from upwind states outside of the Ozone Transport Region –including Illinois, Indiana, Kentucky, Michigan, Ohio, Tennessee, Virginia, and West Virginia – contributes significantly to violations of the 2008 federal smog standard within the Ozone Transport Region. In addition, preliminary modeling demonstrates that emissions in these states, as well as North Carolina, are projected to contribute to violations of the recently updated, 2015 federal smog standard in the Region.


States outside and upwind of the Region are not required to – and generally do not – impose controls as stringent as those required of those within the Region. However, the federal Clean Air Act provides for states to petition EPA to add states to the Ozone Transport Region, and for EPA to add states when the Agency has reason to believe that the interstate transport of air pollution from them significantly contributes to exceedances of the federal standards for smog in the Region.