Sierra Club Suit Against Ohio EPA Dismissed

     COLUMBUS, OH (CN) – The Sixth Circuit dismissed the Sierra Club’s lawsuit against Ohio’s EPA director for violations of the Clean Air Act, reversing a District Court decision.
     The Sierra Club and three individual plaintiffs sued the EPA’s Christopher Korleski in 2008 for failing to enforce the state’s implementation plan for the act, which included determining that small emission sources use the “best available technology” (BAT) to reduce emissions prior to issuing a permit.
     Legislation passed in 2006 allows Korleski to issue permits to certain kinds of small emission sources without ensuring that BAT is used, and although the EPA denied the state’s request to amend its implementation plan, the agency chose not to enforce the technology standards or to sanction Korleski and the Ohio EPA.
     Although the Ohio District Court originally denied the plaintiff’s motion for summary judgment on the grounds that “the Act authorizes citizen suits against a state only to the extent the state itself emits pollutants in violation of an emissions standard, rather than against the state in its regulatory capacity,” it was eventually swayed by the Sierra Club’s citing of United States v. Ohio Dept. of Highway Safety and granted its motion, ordering the Ohio EPA to enforce all BAT requirements.
     However, on appeal a three-judge panel of the Sixth Circuit determined that Korleski did not violate the Clean Air Act, and agreed with the director’s argument that “the sentence structure … [of the Act] makes clear that the [citizen suit] provision reaches only standards or limitations that are set forth in a permit – which would mean the term does not include the State’s obligation to enforce the BAT requirement, since that obligation is set forth only in the state implementation plan.”
     The state cited Bennett v. Spear, a case in which the Supreme Court ruled the wording in the Endangered Species Act, which was later used as a model for the CAA, “did not permit a citizen suit against a federal agency for its failure to perform a regulatory duty.”
     In the end, the three-judge panel was divided on the issue, with Circuit Judges Raymond Kethledge and Eugene E. Siler, Jr. comprising the majority, and Circuit Judge R. Guy Cole, Jr., dissenting.
     Writing for the majority, Kethledge held, “the 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.'”
     Kethledge went on to cite other language in the CAA that supported the state’s definition of violation, including that the Act “calls a state’s failure to regulate … a ‘deficiency.’ In construing a statute, the words matter. The word that Congress chose to describe the precise regulatory failure at issue here is ‘deficiency,’ not ‘violation.'”
     As for the Sierra Club’s citation of the Highway Safety case, Kethledge wrote that “to the extent that Highway Safety can be read to imply that the term ‘violation’ as used in [the CAA’s citizen suit provision] includes the actions or omissions of a state regulator qua regulator, the case is irreconcilable with the Supreme Court’s later construction of a nearly identical provision in Bennett. At least to that extent, therefore, Highway Safety is no longer good law.”
     Kethledge concluded that even though the lawsuit filed against Ohio’s EPA director by the Sierra Club is unauthorized, “the plaintiffs themselves have a remedy here. If they want to sue a regulatory agency, than can do so. They have simply chosen the wrong one. The agency that the Act authorizes them to sue is the federal EPA.”
     In his dissent, Judge Cole said he likely would have joined the majority, but for its interpretation of the Highway Safety case, which raised the issue of the deference an appellate court owes to prior opinions.
     “Adopting the majority’s theory yields a particularly peculiar result. It would permit panels of this Court to reexamine and adopt arguments that previous panels had rejected, solely by questioning the logic of the previous panel’s decision,” Cole wrote, adding that doing so, “…jeopardizes the stability of our jurisprudence, for both future panels and future litigants.”

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