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Statement by Assistant Attorney General Lois J. Schiffer on decision in

The EPA in October 1998 issued a rule identifying 23 Midwestern and Southeastern states whose air pollution was drifting into several Eastern states, elevating unhealthy levels of ground-level ozone in the East. The EPA directed those 23 states to develop a plan to reduce nitrogen oxides, a precursor to smog. A federal appeals court today substantially upheld this EPA rule.

"Air pollution knows no boundaries. For the first time, states that contribute to the unhealthy smog in downwind states are required to become better neighbors," said Lois Schiffer, Assistant Attorney General for Environment and Natural Resources. "We will continue to vigorously defend environmental programs designed to protect Americans from dirty air."

In late 1998, eight states - Michigan, Ohio, Virginia, Alabama, Indiana, South Carolina, North Carolina and West Virginia - sued the EPA, joined by a number of industry groups. The petitioners claimed that the EPA's rule exceeded the agency's authority under the Clean Air Act to address interstate air pollution.

Today's decision holds that:

• EPA's plan to require reductions of ozone precursors in 23 states upwind of ozone nonattainment areas is reasonable and consistent with the agency's authority under the Clean Air Act;

• the EPA was not required by the Clean Air Act to convene a multi-state commission to recommend pollution-reduction measures before the agency called for new state plans to address interstate air pollution;

• the EPA's approach to determining the air pollution contributions of the 23 states was proper; and the EPA properly considered the cost of air pollution controls when it determined which states should reduce their emissions, and the amount by which each state must reduce its emissions.

The court did, however, vacate EPA's final rule with respect to three of the states (Wisconsin, Missouri, and Georgia) and remanded these cases for further consideration.

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