Bill could block Ohioans from suing industrial air polluters in federal court
Apr. 27—By Sabrina Eaton
cleveland.com (TNS)
WASHINGTON, D. C. — Ohio's Republican members of Congress are pushing legislation that would rescind the Biden administration's decision to restore an Ohio policy that lets citizens bring federal nuisance lawsuits against industrial air polluters.
Advocates of the legislation introduced with backing from groups including the Ohio Chamber of Commerce, the Ohio Manufacturers' Association and the Ohio Chemistry Technology Council, say its passage will protect Ohio businesses from frivolous environmental lawsuits.
The policy at issue was put in place in the 1970s as part of Ohio's plan to comply with the Clean Air Act. It empowers private citizens to sue companies for not meeting the standards if state and federal regulatory agencies fail to act. Ohio residents used it to bring cases against polluters like coal and steel plants whom they accused of endangering public health.
Just after the November 2020 election, the Environmental Protection Agency under then-President Donald Trump finalized a rollback of Ohio's rule. Rather than undertaking the regular rulemaking process, the EPA sought to repeal the rule under an "error correction" provision of the Clean Air Act.
When it overturned the rule in 2020, EPA contended it was approved in error nearly 50 years ago because it has "no connection" to the attainment of federal air quality standards established by the law.
Environmental groups and air pollution victims who took the EPA to court over the rollback argued it unfairly blocked neighbors of major polluters from asking federal courts to mitigate pollution damage.
In a 2023 decision, Circuit Judge Jane B. Stranch ruled that the lawsuit's plaintiffs had standing to challenge the decision. She noted EPA overruled the Ohio policy soon after the change was requested by the Perkins Coie law firm, which represented SunCoke Energy, a company operating a coke-making plant in Ohio that was facing a citizen lawsuit under the Clean Air Act.
Her decision said that by removing the citizen lawsuit provision from Ohio's clean air state implementation plan, "EPA has wholly prevented Petitioners from using it to challenge pollution in Ohio, without regard to the hypothetical outcome of such suits. The EPA's actions are unquestionably a link in the chain of causation and redressability."
Both citizens and the state have used the air nuisance rule against heavy industry. A Middletown woman named Donna Ballinger used it against an AK Steel plant she said would emit particulate deposits that would fall like rain and cover her cars, deck, windowsills, and her grandchildren's toys when left outside.
Last year, the Biden-era EPA filed paperwork to reverse the agency's 2020 decision and reinstate the policy.
"Upon further review, EPA is proposing to determine that its November 2020 action failed to adequately consider the role the Air Nuisance Rule plays in the enforcement of the [national ambient air quality standards] in Ohio," the agency wrote in a regulatory filing. The policy was formally reinstated shortly before Biden left office.
Ohio Republicans led by U.S. Sens. Bernie Moreno of Westlake and Jon Husted of the Columbus area and U.S. Reps. Troy Balderson of Zanesville and Michael Rulli of Salem contend the 2020 EPA decision was correct. They say EPA removed similar provisions in other states, including California, Kentucky, Georgia, Michigan, Minnesota, Nevada, New Hampshire, New York, Rhode Island, and Wyoming.
Their bill would rescind the Biden administration's restoration of the policy through a Congressional Review Act (CRA) joint resolution of disapproval. They said the Biden Administration's reinstatement of the rule now permits litigation to take place in federal court, which lets plaintiffs' attorneys recoup fees that they would not otherwise be able to secure in state court.
"President Biden's eleventh-hour effort to reinstate the air nuisance rule as part of Ohio's SIP was done solely to empower radical environmental activists as he walked out the door," said a statement from Balderson.
A statement from Husted said the policy it is trying to reverse would "punish Ohio by making our businesses targets for lawsuits that the EPA has explicitly barred in other states" and do nothing to improve air quality.
"We cannot allow attorneys and environmental advocacy groups to dictate federal policy at the expense of Ohio's economy and workforce," added a statement from Rulli.
The legislation is co-sponsored by all Republican U.S. House of Representatives members from Ohio.
Sierra Club attorney Megan Wachspress accused the GOP legislators of serving corporate interests instead of finding solutions to lower prices and improve Ohioans' quality of life. She said the air nuisance rule protects Ohioans by prohibiting polluters from creating hazardous conditions in nearby communities, and that Ohio EPA used it to crack down on toxic lead emissions.
She said there's no legal basis to remove the Air Nuisance Rule from Ohio's Clean Air Act laws and no reason to believe "this transparent attempt at serving special interests will go anywhere in Congress.
"The Rule was removed from Ohio's Clean Air Act state implementation plan at the behest of a law firm representing Ohio polluters, and now Ohio's elected representatives are abusing their authority to serve the same special interests," said a statement from Wachspress. "Using the Congressional Review Act to strip Ohio's Clean Air Act laws of this crucial provision is an attack on Ohio's residents, who have used this provision for decades to protect themselves."
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