Environmentalists strike out in Ohio federal court

By Michael P. Tremoglie | Jun 5, 2012


COLUMBUS, Ohio (Legal Newsline) - The U.S. Court of Appeals for the Sixth Circuit on May 25 reversed a grant of summary judgment against the state of Ohio's Environmental Protection Agency in a lawsuit against its director Christopher Korleski.

The lawsuit was filed by the Sierra Club and three private citizens and alleged violations of the Clean Air Act.

The U.S. Environmental Protection Agency filed an amicus brief on behalf of the Sierra Club. The case is significant in that it addresses the issue of citizens suing to compel state enforcement of the Clean Air Act.

The Sixth Circuit said, "The plaintiffs brought this lawsuit to compel the State to administer the federal regulation. As authority for the suit, the plaintiffs invoke the Clean Air Act's citizen-suit provision. The State contends that the suit is not authorized by that provision.

"The district court agreed with the State's contention, but felt bound to rule otherwise in light of a case decided in 1980 by this court. The district court therefore entered an injunction expressly ordering the State to administer the federal rule. We conclude, based upon intervening Supreme Court precedent and the text and structure of the Clean Air Act itself, that the Act's citizen-suit provision does not authorize this lawsuit."

It also said, "(T)he plaintiffs' interpretation of 'violation' in this case is inconsistent with the CAA's sanctions regime. The regime affords the state 18 months to cure its failure to implement a requirement in a SIP, after which the administrator can impose sanctions in order to induce, but not to compel, the state to implement the requirement.

"The point of this waiting period obviously seems to be to encourage the state and federal agencies to work out their differences in the meantime. But the plaintiffs' interpretation of the citizen-suit provision would allow them to bring suit immediately upon flagging a state's failure to implement. That would effectively abrogate the CAA's 18-month cure period."

Legislation was passed in 2006 to allow the OEPA to issue permits for certain types of emissions sources without technology standards being used. The EPA denied the state's request to amend its implementation plan it did not penalize the state.

The court noted that the federal Clean Air Act "is a model of cooperative federalism." It requires the EPA to establish air quality standards for certain types of air pollutants. Although these are set federally, the "primary responsibility for assuring" their implementation is a state function.

The CAA, the Sixth Circuit said in its ruling, requires each state to propose a state implementation plan that spells out how air quality standards will be "achieved and maintained." States have flexibility to tailor plans to local circumstances, "so long as the SIP includes certain requirements for permits, enforcement, emissions monitoring, and the like. "

The opinion said if a state does not propose an implementation plan "or proposes one that the EPA determines will not meet the Air Quality Standards, the EPA may impose its own federal implementation plan for the State... In contrast, if the EPA approves a State's proposal" then that proposal becomes federal law and "the State's ability to modify the SIP is limited."

The ruling continued, "If a State fails to enforce the (plan's) requirements, the statute affords the EPA itself various means of enforcing them. First, the EPA may take action against violators directly...The EPA's Administrator may 'issue an order requiring such person to comply,' 'issue an administrative penalty order,' or 'bring a civil action' to require compliance.

The Sixth Circuit concluded that, "the plaintiffs themselves have a remedy here. If they want to sue a regulatory agency, they can do so. They have simply chosen the wrong one. The agency that the Act authorizes them to sue is the federal EPA."

The EPA did not respond to requests for a comment.

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