Feds must face suit over change to Ohio air quality standards

CINCINNATI (CN) — A Sixth Circuit panel on Friday granted several environmental groups' request for review of the Environmental Protection Agency's 2020 decision to revoke an air pollution standard in Ohio, although the appeals court decided against interim reinstatement of the rule.

The air nuisance rule was implemented by Ohio in 1974 as part of its state implementation plan and was previously used by the state to comply with the Clean Air Act and its national ambient air quality standards, or NAAQS.

After decades passed without the ANR being used to control air quality standards, the EPA sought to remove it from Ohio's SIP in March 2020 as part of the Clean Air Act's "error-correction provision."

Over 1,800 individuals and organizations, including the Sierra Club and Ohio Environmental Council, objected to the removal of the ANR during the agency's notice and comment period, but to no avail.

The rule was revoked in November 2020, which prompted the aforementioned environmental groups' petition to the Sixth Circuit.

The case was argued before a three-judge panel of the Cincinnati-based appeals court last October, and Friday's opinion breathed new life into the watchdog groups' claim the ANR is integral to maintaining air quality standards in the Buckeye State.

U.S. Circuit Judge Jane Stranch, an appointee of Barack Obama, devoted much of her opinion to the petitioners' standing to challenge the EPA's decision, and rebuffed the agency's claim that reinstatement of the rule would not redress their concerns.

"Petitioners have pointed to multiple instances where they used the ANR for NAAQS enforcement even when not in active litigation," she said. "These uses of the ANR include sending notices of intent to sue that have resulted in facility modifications and consent decrees.

"It is not 'speculative' to say that reinstating the ANR as part of Ohio's SIP would permit petitioners to use it to redress their injuries."

The EPA also disputed the groups' claim of procedural injury and argued nuisance suits could be brought in state court even if the ANR is not part of the SIP and a federal lawsuit under the Clean Air Act is unavailable.

Stranch disagreed and pointed out that because of Ohio's jurisdictional requirements, the Sierra Club and other environmental groups would be unable to file associational suits on behalf of their members unless they are headquartered in the county where the injury occurred.

"It is true that state courts are competent to adjudicate state-law claims like nuisance claims," she said, "but again, state-law nuisance claims and CAA citizen suits for violations of the ANR are not interchangeable because important components of their requirements and remedies differ."

Stranch provided analysis of how to proceed once standing was established, and ultimately determined a remand to the agency without vacatur of its decision was the most appropriate course of action.

The panel chose not to reinstate the ANR given the lack of a determination on the merits of the case, as well as the possibility the EPA could find a compelling argument for its removal upon remand.

The agency agreed during arguments it would need, at most, one year to complete a thorough review of the ANR and determine whether it was properly removed under the error-correction provision.

This factor weighed in favor of allowing the removal to stand, according to Stranch.

"Time is of the essence," she said, "but...given the overall equities of the situation, the still-pending petition for reconsideration before the EPA, and because 'the agency may be able to rehabilitate its rationale for the regulation,' vacatur of the ANR removal from Ohio's SIP is not appropriate during the pendency of remand."

Sierra Club attorney Megan Wachspress, who argued the case last year, commended the panel on its decision but was skeptical about the EPA's willingness to change its ways moving forward.

"Sierra Club is pleased that the Sixth Circuit has directed EPA to reconsider its removal of the Air Nuisance Rule," Wachspress said, "although we disagree that EPA can rehabilitate its error in removing it on remand.

"Particularly given Ohio's belated admission that it had recently used the nuisance provision in its own enforcement actions, we assert that on remand the EPA must recognize the importance of the air nuisance prohibition to improving air quality and protecting fenceline communities in Ohio.  We urge the EPA to act quickly to reinstate the rule as part of Ohio's SIP so that Ohioans like Donna Ballinger can address the ongoing harms of air pollution in their communities."

The EPA said it is "reviewing the decision."

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