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Appeals court hears dispute over change to Ohio clean air standards

The Sierra Club argued the EPA exceeded its authority under the Clean Air Act when it removed a prohibition on nuisance air pollution in Ohio that had been enforced for nearly 50 years.

CINCINNATI (CN) — Environmental watchdogs challenging the removal of a critical air pollution control standard first implemented in Ohio in 1974 told an appeals court panel Wednesday the decision was based largely on lobbying by an energy industry law firm.

The Sierra Club and the Ohio Environmental Council, along with several Ohio citizens, petitioned the Cincinnati-based Sixth Circuit for a review of the U.S. Environmental Protection Agency's 2020 decision to modify Ohio's Clean Air Act state implementation plan, or SIP. The environmentalists argued the unilateral removal of a nuisance regulation exceeded the scope of the federal agency's authority.

The air nuisance rule, or ANR, was put in place nearly five decades ago and allows for citizen enforcement of the Clean Air Act to reduce pollution and ensure certain air quality standards.

According to the environmental groups, the ANR also "establishes narrative, facility-specific restrictions on national ambient air quality standards, or NAAQS, pollutants, such as particulate matter, that protect the health and welfare of Ohioans who live near the fencelines of polluting facilities."

The rule was removed from Ohio's SIP in 2020, however, after a law firm affiliated with SunCoke Energy made a "secret request" to alter the plan, the Sierra Club claims.

Perkins Coie sent two letters to the EPA urging the agency to remove the ANR in 2019, and according to the Sierra Club's brief with the Sixth Circuit, the EPA failed to disclose the requests until November 2021, during the briefing stages of the current suit.

The removal of the ANR eviscerated all avenues of relief available to private citizens in Ohio, according to the brief.

"Ohio's Air Pollution Control Act contains no provision analogous to the CAA's authorization of suits by private individuals. Rather, 'any person who is or will be aggrieved or adversely affected by a violation [of an air pollution rule] that has occurred' must file a complaint with the director of the Ohio EPA, which has discretion as to whether file legal action," the brief states.

"EPA's final rule thus effectively eliminated all available enforcement relief to Ohioans who are harmed by air pollution nuisances, not just federal court relief."

Ohio intervened in the case and argued in its brief to the appeals court the EPA never should have accepted the ANR as part of the state's implementation plan because it fails to set quantifiable limits on emissions as required by the CAA.

It emphasized neither subsection of the ANR met federal requirements for inclusion in its SIP because "neither establishes any 'emission limitations' or 'other control measures, means, or techniques' necessary for attaining compliance with the EPA's air-quality standards."

Additionally, "the Ohio EPA has never relied on that rule when explaining how it intends to achieve or maintain the air-quality standards" required by the CAA, according to the brief.

Attorney Megan Wachspress of the Sierra Club argued Wednesday on behalf of the environmental groups and emphasized the ANR "serves an important gap-filling purpose where other monitoring is insufficient."

Wachspress cited a July 2021 letter submitted to the Sixth Circuit by Ohio on Tuesday as proof the ANR is used to combat air pollution.

The filing from the Ohio attorney general lists the ANR as its sole cause of action and directly contradicts the EPA's claim the ANR has never been relied on for enforcement, according to Wachspress, and outlines regulatory actions taken against a steel plant for lead pollution.

The judges on the panel were taken by surprise when the filing was mentioned, especially U.S. Circuit Judge Richard Griffin, who questioned the state's attorney about the mishap.

"Late filings are a problem," the George W. Bush appointee told Sam Peterson, deputy solicitor at the Ohio attorney general's office. "You're putting us at quite a disadvantage."

Attorney Elliot Higgins from the Department of Justice argued on behalf of the EPA and told the panel the petitioners lacked standing to challenge the removal of the ANR.

Higgins said the "error correction method" used by the federal agency to remove the ANR complied with all statutory requirements, including a notice-and-comment period.

Griffin asked the government's attorney about the lack of enforcement through citizen suits without the ANR, and while Higgins conceded the point, he said state court suits are still available to redress air pollution issues.

"It's a harder version, a different version [of a citizen suit] that constitutes a concrete injury," Griffin responded.

Higgins told the judges if they believe the petitioners established standing, the government would accept remand to allow for additional analysis of the rule.

"There are a variety of different paths the agency could take," he said while proposing a 12-month deadline for further consideration of the ANR.

Peterson apologized to the court for the state's late filing during his brief argument, but pushed back against the idea of remand and claimed the attorney general's letter did not change anything about the interplay between the ANR and the state's SIP.

In her rebuttal, Wachspress stressed the importance of the ANR for individual enforcement actions and urged the court not to allow for any more delays.

"Further delay while the EPA makes up its mind harms the petitioners," she said, advocating for a complete vacatur of the rule passed by the agency to remove the ANR.

Attorney David Altman of AltmanNewman Co. LPA in Cincinnati also argued on behalf of the individual petitioners.

U.S. Circuit Judges Julia Gibbons, a George W. Bush appointee, and Jane Stranch, an Obama appointee, also sat on the panel.

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