They want the EPA to force nine states – Illinois, Indiana, Kentucky, Michigan, North Carolina, Ohio, Tennessee, Virginia and West Virginia – to regulate the emissions that cross into their borders through prevailing winds and contribute to higher ozone levels to the north and east of the upwind states.
The move comes just ahead of a closely watched Supreme Court review of an earlier appeals court rejection of the EPA’s Cross-State Air Pollution Rule.
The governors, led by Delaware governor Jack Markell, said the upwind states had failed for decades to install the technology needed to contain emissions of organic compounds (VOCs) and nitrogen oxides (NOx), which cause asthma and other respiratory diseases and contribute to as much as 98 percent of the ozone air pollution problems in their own states.
The petition asks the EPA to require the upwind states to join them in an “Ozone Transport Region,” which under the federal Clean Air Act would force actions to limit air pollution consistent with the efforts of the “downwind” states.
Under that kind of pact, the Midwestern states would need to install what are known as best available control technologies to capture the emissions.
Besides Delaware the states petitioning for the controls are Connecticut, Maryland, Massachusetts, New Hampshire, New York, Rhode Island and Vermont.
Markell said downwind states pay the price for other states’ failure to install necessary controls.
“While Delaware’s in-state sources are well-controlled with state-of-the-art technology, this is simply not true of our upwind neighbors,” Markell said.
“Delaware pays more for healthcare resulting from respiratory illnesses and our industries are forced to do more than those in the states causing the pollution, and that’s simply unfair.”
Delaware officials said removing an additional tonne of pollution in a downwind state, which has already removed most of these emissions, would cost between $10,000 and $40,000, but that it would only cost $200 to $500 a tonne in upwind states, “where even some basic control technologies have not been installed.”
In a case being closely monitored by environmentalists and energy companies, the Supreme Court on Tuesday will consider the EPA rule that would have set limits on pollution from coal-fired power plants in 28 states, generally referred to as “upwind states,” that directly affect air quality in other states,
An alliance of industry groups and 15 states, in addition to energy companies like Southern Co Peabody Energy Corp and American Electric Power Inc, challenged the rule, which as a result was never implemented.
The U.S. Court of Appeals for the District of Columbia Circuit determined in August 2012 that the rule was invalid on multiple grounds.
A spokesman for Markell said standards Delaware and the other northeast states are proposing in the latest petition are more stringent than the EPA’s cross-state rule.
“With a legal cloud hanging over the EPA’s attempt to reduce inter-state pollution, this petition could provide much-needed relief for breathers in the affected states,” said Frank O’Donnell, president of environmental group Clean Air Watch.
Vickie Patton, general counsel for environmental group Environmental Defense Fund, said it is also in the interest of the upwind states to install pollution controls.
“Cleaning up this harmful power plant pollution will mean healthier, longer lives for children, families and communities across the Midwest and the millions of people afflicted in downwind states,” she said.
(Reporting by Valerie Volcovici; Editing by Ros Krasny, Lisa Von Ahn and Andrea Ricci)