Earlier this week, the governors of ten states in the Mid-Atlantic and Northeast took the first step towards asserting control over portions of nine other states’ authority to regulate air pollution.  The petitioning states, all of which are members of the 13-state Ozone Transport Region (the “OTR”), asked EPA to require the following upwind states to join the OTR:

• Illinois;
• Indiana;
• Kentucky;
• Michigan;
• North Carolina;
• Ohio;
• Tennessee;
• Virginia; and
• West Virginia

If the agency grants the request, OTR would gain the ability, subject to approval by EPA, to impose additional restrictions on air emissions in the upwind states in order to abate excess ground-level ozone in the downwind ones.

Section 184 of the Clean Air Act created the OTR to address the problem of interstate transportation of the precursors to ground-level ozone from Washington, DC to Maine.  That provision authorizes OTR, through a commission, to develop “additional control measures [to] be applied within all or part [of the OTR] if the commission determines such measures are necessary” to bring any area within the OTR into compliance with a National Ambient Air Quality Standard (“NAAQS”).  In theory, adding the upwind states to the OTR gives the commission the ability to develop additional emission controls for those states, in order to alleviate exceedences of the NAAQS throughout the entire region.  EPA then reviews the proposed controls and approves them.  In reality, forcing the upwind states to join OTR gives the commission authority to force emission reductions on the new members rather than imposing those reductions in the existing OTR states.

EPA must accept public comments on the petition and make a final decision within the next eighteen months, but it is unclear whether the agency will ask for comments on the petition in the near term or issue a proposed decision first.

The petition is available here.