Appeals Court Says EPA Must Regulate Upwind Pollution Across States

In another takedown of federalism, a panel of the US Court of Appeals for the D.C. Circuit found that the EPA violated the law when it denied a request from Maryland and Delaware to tighten air pollution controls at power plants in upwind neighboring states.

The ruling gives states the right to ask for changes in other states, across state lines, essentially demanding federal involvement in state affairs.

The EPA is reviewing the decision, said spokeswoman Enesta Jones.

Maryland and Delaware had filed their petition to the EPA in 2018 asking for tougher pollution limits on some 36 coal-fired power plant units in Indiana, Kentucky, Ohio, Pennsylvania and West Virginia, where much of Maryland’s ozone pollution originates.

The EPA rejected the petition, arguing that requiring upwind power plants to add more pollution controls to protect downwind states was not cost-effective for the plant owners.

Richard Revesz of NYU’s School of Law and director of the Institute for Policy Integrity filed the amicus brief on behalf of Maryland and Delaware. He said the ruling made clear the EPA is obligated to prevent states from harming the air quality of their neighboring states when emissions travel downwind and “can’t cite cost as a reason to ignore the law altogether.”

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