In 2018, New York State commenced an effort to shut down hundreds of energy facilities across the country. I first wrote about New York’s less than neighborly efforts shortly after the Cuomo Administration asked the Environmental Protection Agency (EPA) to shut down or directly impose sweeping emissions limitations upon 346 facilities peppered across a broad swath of nine states, including Illinois, Indiana, Kentucky, Maryland, Michigan, Ohio, Pennsylvania, Virginia, and West Virginia. Our map shows just how far New York’s effort sought to stifle economic activity.
New York’s petition was based upon a little known provision of the Clean Air Act known as Section 126, which was designed by Congress as a backstop for limited situations in which a state has failed to address the interstate transport of certain air emissions emanating within the state’s borders. Also known as the “good neighbor” provision, Section 126 allows one state to petition the EPA to force another state to fix violations of these interstate transport obligations.
I returned to discuss New York’s attempted overreach when the Federal Register published the EPA’s proposal to reject New York’s far-reaching petition. There, the EPA proposed to deny the petition because New York had not met its statutory burden to demonstrate – and the EPA did not independently find – that the group of sources identified in New York’s petition violate the good neighbor provision for the applicable 2008 or 2015 ozone standards.
While this issuance provided momentary relief to the thousands of workers across nine states who found themselves in the crosshairs of New York’s “keep it in the ground” ideology, it also opened the comment period for the public to weigh-in on whether it supported – or opposed – New York’s attempt to curtail or shut down legitimate businesses across nine states. The Federal Register publication signaled the opportunity to speak up for the thousands who live near or work at any of the many individual facilities targeted (pages 33-42) by New York’s petition.
Following the submission of numerous comments and a public hearing in Washington on June 11, 2019, the EPA finalized its proposal in September of last year, officially denying New York’s petition. As New York is prone to do, they quickly filed a lawsuit challenging this decision with the Court of Appeals for the D.C. Circuit (D.C. Circuit). The Chamber intervened in this proceeding and filed a brief supporting the EPA’s decision to turn away New York’s unprecedented use of Section 126 to impose widespread economic harm across hundreds of industrial facilities.
This Thursday, New York will attempt to persuade three justices at the D.C. Circuit that Congress, in promulgating Clean Air Act Section 126, intended to give one state the broad authority to remake the industrial fabric of multiple states, even states not geographically close by. At 9:30 a.m. EDT, you can attend this oral argument from the comfort of your own home, by selecting the “today” link here. Both the Department of Justice (representing EPA) and the State of New York will have 15 minutes each to make their point.
Here is hoping that the merits of EPA’s petition denial also ring clear in court, allowing the thousands of impacted workers to be assured that their jobs should remain safe both during, and following, our emergence from our current economic challenges. The one thing the nine states targeted by New York will not need as we emerge from the current pandemic is the higher prices and further reduced economic activity that could result if the D.C. Circuit overturns the EPA’s proper rejection of the far-reaching actions sought by New York.