Yesterday, the D.C.. Circuit Court of Appeals granted New York’s petition appealing EPA’s rejection of New York’s request under Section 126 of the Clean Air Act to require emissions reductions from upwind states alleged to be contributing to New York’s noncompliance with the ozone NAAQS. The Court found that:
The EPA offered insufficient reasoning for the convoluted and seemingly unworkable showing it demanded of New York’s petition.
The critical issued is identified, if only in a negative way, by Judge Griffith’s concurrence, which is more of a roadmap for EPA in denying future Section 126 petitions than it is a concurrence. Section 126 authorizes states to petition EPA to make a:
finding that any major source or group of stationary sources emits or would emit any air pollutant in violation of the prohibition of [the Good Neighbor Provision.]
Judge Griffith believes that Section 126 imposes a heavy burden on petitioner states to identify specific sources that “share a common attribute.” He does not believe that New York’s petition met that burden.
The only feature shared by the sources in New York’s petition is that each emits more than 400 tons of nitrogen oxides per year. That arbitrary threshold captures both an Indiana power plant emitting more than 10,000 tons annually and a Virginia bottle factory emitting just 412 tons. If that’s enough to establish a “group,” the term is all but meaningless.
I think that Judge Griffiths is wrong and in a way that turns federalism upside down. New York thinks that upwind sources of NOx are contributing to NAAQS violations in New York. It identifies a “group” of facilities, those emitting more than 400 tons per year of NOx. Why is that not enough? Indeed, doesn’t it make more sense for the downwind state to identify the problem, leaving the upwind states to control their sources as they see fit? I don’t think we even want the downwind states to “group” the offending upwind sources too finely.
As with many of our environmental statutes, sections 110 and 126 of the CAA are not a model of clarity and the deadlines written into the statute simply don’t work most of the time. That does not justify putting a burden on downwind states that the statute does not explicitly provide.