Petition to Expand the Expansion of Ozone Transport Region

Relying in major part on air quality modeling data published in 2005, some, but not all, member states of the Northeast Ozone Transport Region have filed a petition with USEPA seeking to have 9 midwest and southern states included as part of the region.  While the petition invokes Section 176A of the Clean Air Act as its legal authority, that provision on its face is applicable to situations in which one or more upwind states “contributes significantly” to a violation of an air quality standard in a downwind state. 

Putting aside for the moment the appropriateness of using 2005 data to characterize the current air quality in the region, the filing of the petition at a time when USEPA is actively engaged in the development of a new rule to address the interstate transportation of air pollutants, brings to mind a very similar circumstance that occurred some 15 year ago.  At that time, USEPA was in the process of developing the so-called “NOx SIP Call” to address interstate transport issues related to ozone nonattainment in the Northeast and to assure that upwind states did not significantly contribute to downwind states.  Then, as now, several of the Northeast states filed petitions seeking a ruling by USEPA that power plants in upwind states should be subject to additional controls.  While those petition were filed under Section 126 of the Clean Air Act, the same “significant contribution” test is applicable to petitions under §126 as if applicable to petitions under §176A.

In the case of both petitions, it is clear that the motivation for the petitions is as much economic as it is environmental.  The recent §176A Petition was transmitted to USEPA under cover of letter which in its first paragraph states the result of the expansion of the region will be “a level economic playing field”.  By comparison, the August 14, 1997 press release by the then Governor of Connecticut in support of the §126 petition also made it clear that the filing of that petition was to achieve “a level playing field”.

It was correspondence to the Governor of Maine from his environmental Commissioner, dated July 31, 1997, that disclosed that the coordinated activities of the Northeast states at that time was intended to give USEPA “political cover” in developing control requirements under the NOx SIP Call.

Time will tell whether the §176A petition is intended to provide political cover for USEPA as it develops its next transport rule.

David Flannery has focused his practice in the areas of environmental and energy law. Ranked as one of the leading lawyers in America in these areas, Flannery is a member of the American College of Environmental Lawyers and a Commissioner to the Ohio River Valley Water Sanitation Commission (ORSANCO).
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