States, Groups in Court Over Air Pollution Loophole

Case aimed at reducing smog in America's most polluted communities


David Baron/Raviya Ismail, Earthjustice, (202) 667-4500

A panel of federal judges heard arguments today in a lawsuit against the U.S. Environmental Protection Agency by a coalition of states and an environmental group looking to close loopholes in federal air pollution regulations.

The case, argued in DC circuit court, challenges Bush-era regulations that — among other things — exempt power plants in polluted areas from installing smog-reducing controls.

The nonprofit environmental law firm Earthjustice is representing the National Resources Defense Council in the lawsuit. The states of New Jersey, New York and Connecticut are also joining in the challenge to the power plant loophole.

"EPA’s rule lets a power plant pump uncontrolled air pollution into a city or town that already has dangerous smog levels," said Earthjustice attorney David Baron, who argued today’s case. "We say that violates the law."

Power plants are a leading source of the pollutants that make up ozone, commonly known as smog. Smog is linked to premature deaths, thousands of emergency room visits, and tens of thousands of asthma attacks each year. Ozone is especially dangerous to small children and senior citizens, who are often warned to stay indoors on polluted days.

"We contend that EPA is violating explicit requirements of the Clean Air Act," said John Walke, Clean Air Director with NRDC. "Throwing out these exemptions would be a victory for public health. "

The case grew out of an interstate pollution trading program aimed at reducing pollution that travels between states. But EPA’s rule waives pollution controls at power plants in already polluted communities (officially known as nonattainment areas). Earthjustice contends that waiver violates the Clean Air Act. Twenty-two states are members of this interstate program, and most of them contain nonattainment areas, including cities like Chicago, Cleveland, Pittsburgh, and Baltimore. People in these areas are already plagued with unhealthy air.

Environmental advocates and affected states are not the only ones taking issue with the power plant exemption. The National Petrochemicals and Refiners Association filed a brief also objecting to this waiver.

The lawsuit also seeks to enforce a portion of the Clean Air Act that requires newly constructed plants that will add to pollution to already-polluted communities to arrange for "offsets" — that is, equivalent pollution reductions at existing facilities in the area. Under the regulations being challenged, EPA has allowed for facilities to get credit for historical pollution reductions at plants that closed down decades ago.

"This sort of arrangement might work in the movie ‘Back To The Future.’ But in the real world, it makes absolutely no sense," Baron added.

Read the briefs (PDF)

See a map of nationwide non-attainment zones (PDF) 

Additional Resources

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