U.S. CHAMBER OF COMMERCE

EPA Proposes to Reject New York’s “Keep it in the Ground” Scheme

By Heath Knakmuhs

Last September, I wrote about one of the boldest efforts yet by New York to halt energy infrastructure in its tracks.  This effort utilized a little-known provision of the Clean Air Act – the “good neighbor” provision at Section 126(b) – to argue that hundreds of energy-related and manufacturing facilities located across nine “upwind” states should be subject to additional, costly controls and limitations in order to assist New York in meeting its air quality obligations under 2008 and 2015 national ozone air quality standards.  Last week, the Federal Register published the proposal by the Environmental Protection Agency (“EPA”) to reject New York’s far-reaching petition, providing momentary relief to the thousands of workers across nine states that found themselves within the crosshairs of New York’s “keep it in the ground” ideology.

With this week’s EPA action, the comment period is now officially open for the public to weigh-in on whether it supports – or opposes – New York’s attempt to curtail or shut down legitimate business activities across Illinois, Indiana, Kentucky, Maryland, Michigan, Ohio, Pennsylvania, Virginia, and West Virginia.  If you live in any one of these states, and particularly if you live near or work at any of the many facilities targeted (pages 33-42) by New York’s petition, now is the time for you to speak up.

Take a good look at the map below to see the locations of the many facilities targeted by New York’s petition.  Not surprisingly, power plants and refineries are major targets, but so are countless other facility types.  From a Pennsylvania facility that produces renewable energy from municipal waste to steel plants in Michigan to a box factory in rural Virginia, New York’s petition contorts the Clean Air Act well beyond the intended “major source or group of stationary sources” which are typically the subject of a state petition under Section 126.  Even a facility in western Indiana at Purdue University – which is more than 400 miles away from New York’s westernmost border – is targeted as a “bad neighbor” by New York’s complaint. 

If New York has its way, the support these myriad of businesses provide to your schools, libraries, and municipal services may be eliminated.  Moreover, even if facilities in your immediate vicinity are not directly impacted, the additional and unjustified costs that New York is seeking to impose upon your state’s businesses will result in higher costs, for no identifiable environmental benefit – in New York or elsewhere. 

As a leading member of the Air Stewardship Coalition, the U.S. Chamber of Commerce has already taken the opportunity to go on the record in opposition to New York’s overreach. Our comments indicated that:   

(1) New York has failed to demonstrate that any actionable good neighbor (or “attainment”) issues exist within New York State;

(2) The New York petition’s outdated and secretive modeling effort fails to link any of the 346 targeted sources to potential ozone compliance issues in New York; and

(3) New York has dodged its express obligation within Clean Air Act Section 126 to identify cost-effective emissions controls that could be implemented at the hundreds of sources listed in its petition. 

As a result of these three fatal flaws, the EPA must reject New York’s bid to impose new controls on the 346 facilities its petition targets across nine states.  

The EPA is still accepting comments online and at a public hearing in Washington on June 11. 

New York’s hostility to energy infrastructure has been well documented, and the impacts are now being felt across the Empire State and into New England.  The difference here is that if New York gets its way this time, there will be ramifications far beyond its own borders and its neighbors to the northeast.  Higher prices and reduced economic activity could be headed to your neck of the woods, also. 

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