Connecticut, Delaware, and Maryland Allege that Kentucky and Tennessee are not being “Good Neighbors” under the Clean Air Act

May 28, 2013
Bryan P. Franey
MGKF Newsflash

On May 2, 2013, three downwind states, Connecticut, Delaware, and Maryland, filed petitions in the Sixth Circuit seeking review of EPA’s approval of the state implementation plans (“SIPs”) submitted by two upwind states, Kentucky and Tennessee.  Connecticut, Delaware, and Maryland allege that the Kentucky and Tennessee SIPs do not include provisions that protect against the downwind transmission of ozone pollution as required by section 110(a)(2)(D) of the Clean Air Act (referred to as “good neighbor” provisions).

EPA revised the national ambient air quality standards (“NAAQS”) for ozone in 2008.  The 2008 ozone NAAQS revisions triggered a requirement under the Clean Air Act for states to update their SIPs to address the revised ozone standard.  The “good neighbor” provision requires states to include adequate provisions in their SIPs to prohibit any sources from emitting any air pollutant in amounts that will “contribute significantly” to the nonattainment of a NAAQS by a downwind State. 

The three downwind states allege that their nonattainment of the 2008 ozone NAAQS is largely due to out-of-state pollution, including from heavy coal consuming states such as Kentucky and Tennessee.  EPA has made several prior attempts to address cross state air pollution in a comprehensive manner.  EPA’s most recent effort, the Cross-State Air Pollution Rule, was vacated by the D.C. Circuit in August 2012.  Several environmental organizations have appealed the D.C. Circuit’s decision to the U.S. Supreme Court. 

Connecticut, Delaware, and Maryland’s petition comes on the heels of a successful petition filed by New Jersey under a separate “good neighbor” provision of the Clean Air Act:  section 126.  Section 126 allows for a downwind state to petition EPA to impose facility-specific requirements on out-of-state facilities that cause or significantly contribute to the nonattainment of a NAAQS in the downwind state.  Petitions under sections 110(a)(2)(D) and 126 of the Clean Air Act are uncommon, but may increase if downwind states believe that they cannot meet the NAAQS without addressing interstate air pollution transport. 

For additional information on this topic, please contact Bryan P. Franey at 484-430-2308 or bfraney@mgkflaw.com.