D.C. Circuit Rules EPA’s Failure to Protect People From Cross-State Air Pollution is Illegal


Court rules EPA must control smog that harms breathers in downwind states


Neil Gormley, Earthjustice, (202) 667-4500, ext. 5239

Brian Willis, Sierra Club, (202) 675-2386

In a major victory for public health, the D.C. Circuit Court of Appeals ruled today that the U.S. Environmental Protection Agency (EPA) is illegally failing to control ozone pollution — smog — that travels across state lines and contributes to unhealthy air in downwind states. Today’s ruling requires EPA to secure clean air by reducing the pollution emitted by coal-fired power plants and other polluting industries in upwind states — pollution reductions that will save hundreds of lives and prevent hundreds of thousands of asthma attacks every year. The court also rejected arguments by polluting industries and red states that the pollution reductions EPA has already required are too costly.

The case was briefed and argued by Earthjustice attorneys representing Sierra Club and Appalachian Mountain Club.

Because the Court rejected a legal argument that EPA has now made over and over — that EPA doesn’t have to follow the Clean Air Act’s deadlines for achieving clean air — today’s ruling also has major implications for other pending lawsuits, including a case scheduled for oral argument on September 20, 2019, in which environmental groups and downwind states jointly challenge the Trump administration’s refusal to reduce cross-state air pollution (New York v. EPA, No. 19-1019). It also means that EPA must promptly implement pollution controls that are needed to achieve the updated clean air standard that EPA adopted in 2015. That updated standard was upheld against a challenge by polluting industries in a D.C. Circuit decision issued August 23, 2019 (Murray Energy v. EPA, No. 15-1385). The court required EPA to consider strengthening the standard to better protect ecosystems and agriculture.

49 counties with more than 36 million people in the eastern United States and Texas suffer from ozone levels that exceed the 2008 ozone National Ambient Air Quality Standards (NAAQS). Ozone exposure at this level and below can result in chronic respiratory diseases like asthma, scarring of the lungs, and premature death, and is particularly harmful to children. The areas of the country that suffer from unhealthy air due to cross-state pollution are disproportionately home to communities of color.

“This is a big win for millions of people who will get to breathe cleaner air,” said Earthjustice staff attorney Neil Gormley, the lead attorney on the case. “We already have the technology we need to end this dangerous pollution and save lives; today’s decision means no more excuses.”

“We welcome today’s court decision that ruled in favor of protecting public health,” said Georgia Murray, Staff Scientist for the Appalachian Mountain Club. “Now, EPA must not delay in cleaning up outdoor air so people and their families can be outdoors and enjoy healthy recreation.”

“The Court’s decision was a clear step in the right direction to protect states from their neighbors’ pollution and putting public health ahead of the profits of a handful of wealthy business executives,” said Zachary Fabish, Senior Attorney for the Sierra Club. “We look forward to the EPA taking action through this court ruling to protect public health and for state governments to reign in their polluters.”

Read the Court’s decision.

Smoke from a coal powered plant.
Smoke from a coal powered plant. (Calin Tatu / Shutterstock)

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