TRENTON – Acting Attorney General Andrew J. Bruck announced today that the U.S. Environmental Protection Agency (EPA) has agreed to take action on air pollution reduction plans submitted by certain “upwind” states as part of a settlement reached between EPA and “downwind” states New Jersey, New York, Connecticut, Delaware, and Massachusetts, as well as the City of New York. The action resolves a lawsuit brought by the states and city earlier this year against the Trump Administration’s EPA over its failure to fulfill its responsibility under the federal Clean Air Act to ensure the control of upwind sources of smog-forming pollution.

The lawsuit alleged that the unchecked pollution from upwind states creates an ongoing threat to the health of residents in New Jersey and the other downwind states and makes it harder for the downwind states to meet federal air quality standards.

Under today’s settlement, the EPA must approve or disapprove emission control plans known as State Implementation Plans (SIPs) submitted by the upwind states of Indiana, Kentucky, Michigan, Ohio, Texas, and West Virginia by April 30, 2022. The EPA must finalize federal replacement plans for any SIPs it disapproves by December 15, 2022.

Following a notice and comment period required by the Clean Air Act, the proposed consent decree will be sent to the U.S. District Court for approval.

“This is an important win for New Jersey, its residents, and its environment,” said Acting Attorney General Bruck. “For too long, polluted air has been blowing downwind into New Jersey from other states, and today’s settlement requires the federal government to finally take action to address the harm. This is yet another victory in our fight for environmental justice in the Garden State.”

“Improving air quality for all of our residents is a priority of Governor Murphy’s administration,” said DEP Commissioner Shawn M. LaTourette. “While New Jersey has consistently taken strong actions over the years to address the pollutants that cause ozone, the same cannot be said for many of the upwind states that generate these pollutants that are carried by prevailing winds to our state. Addressing ozone pollutants requires a strong federal hand. This agreement will help New Jersey to better protect all communities, including those that for too long have been disproportionately overburdened by pollution. We are grateful to the Biden administration and our EPA colleagues for this important step forward and we are eager to assist them in advancing stronger and fairer environmental policies that will improve our environment and public health as we build a green economy that lifts all of our people.”

The Clean Air Act requires every state to evaluate whether its emissions of regulated pollutants “substantially contribute” to any other state’s inability to attain federal air quality standards. If so, the offending state must submit a SIP describing its efforts to reduce the effect of its emissions on other states. Under the Clean Air Act, the EPA has 12 months to approve or disapprove SIPs and must adopt a federal plan for any state whose SIP it disapproves.

Ozone and smog—caused largely by nitrogen oxide (NOx) emissions—can damage the lining of the lungs and lung tissue and aggravate asthma. Children and individuals with respiratory conditions are particularly susceptible.

People of color and those living below the federal poverty standard disproportionately bear the consequences of ozone pollution.  Even though New Jersey has some of the strictest limits on NOx in the United States, ground-level ozone in certain parts of the state exceeds federal standards, largely due to emissions from coal burning power plants and other pollution sources in upwind states.

This lawsuit is not the first time New Jersey has joined with other states to compel the EPA to act on the upwind states’ SIPs. During the Obama Presidency, the EPA stated that it would require emissions reductions from states upwind of New Jersey to reduce high ozone levels here. Under the Trump Administration, however, the EPA reversed course and finalized a rule in 2018 that required no new reductions from upwind states. New Jersey joined other states in successfully challenging this rule, but EPA still failed to act.

By committing the EPA to take action on the SIPs on an enforceable schedule, the settlement will help improve New Jersey’s air quality—and the health of New Jersey residents—by ensuring that the upwind states have effective plans to reduce pollution from coal-fired power plants and other sources that contributes to ozone and smog formation.

Better pollution control in the upwind states will also make it less likely that New Jersey will be required under federal law to impose more stringent control measures on in-state industry to compensate for unchecked upwind emissions.

Interested parties can learn more about the consent decree and submit comments here.

Assistant Section Chief Jessica Palmer and Deputy Attorneys General Carlene Dooley, Daniel Resler and Lisa Morelli, of the Environmental Enforcement and Environmental Justice (EEEJ) Section within the Division of Law’s Affirmative Civil Enforcement Practice Group, handled this matter on behalf of the State.

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