Sierra Club v. Korleski

• Decision Date: 25 May 2012
• Docket Number: No. 10–3269.,10–3269.
• Citation: 74 ERC 1968,681 F.3d 342
• Parties: SIERRA CLUB; Michael Sinclair; Theresa Cole; Josephine Cole, Plaintiffs–Appellees, v. Christopher KORLESKI, Director, Ohio Environmental Protection Agency, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

681 F.3d 342

74 ERC 1968

SIERRA CLUB; Michael Sinclair; Theresa Cole; Josephine Cole, Plaintiffs–Appellees,

v.Christopher KORLESKI, Director, Ohio Environmental Protection Agency, Defendant–Appellant.

No. 10–3269.

United States Court of Appeals,Sixth Circuit.

Argued: July 20, 2011.

Decided and Filed: May 25, 2012.

ARGUED:Alexandra T. Schimmer, Office of the Ohio Attorney General, Columbus, Ohio, for Appellant. D. David Altman, D. David Altman Co., L.P.A., Cincinnati, Ohio, for Appellees. Peter J. McVeigh, United States Department of Justice, Washington, D.C., for Amici Curiae. ON BRIEF:Alexandra T. Schimmer, David M. Lieberman, Gregg H. Bachmann, Thaddeus H. Driscoll, Samuel C. Peterson, Office of the Ohio Attorney General, Columbus, Ohio, for Appellant. D. David Altman, Justin D. Newman, D. David Altman Co., L.P.A., Cincinnati, Ohio, for Appellees. Peter J. McVeigh, United States Department of Justice, Washington, D.C., David E. Northrop, Robert L. Brubaker, Porter, Wright, Morris & Arthur LLP, Columbus, Ohio, for Amici Curiae.

Before: SILER, COLE, and KETHLEDGE, Circuit Judges.

KETHLEDGE, J., delivered the opinion of the court, in which SILER, J., joined. COLE, J. (pp. 353–55), delivered a separate dissenting opinion.

OPINION

KETHLEDGE, Circuit Judge.

The State of Ohio, pursuant to legislation passed by its General Assembly and signed by its Governor, has chosen no longer to administer a particular federal regulation promulgated under the Clean Air Act. 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. We therefore reverse the district court's judgment and remand with instructions to dismiss the complaint.

I.

A.

“The federal Clean Air Act is a model of cooperative federalism.” Ellis v. Gallatin Steel Co., 390 F.3d 461, 467 (6th Cir.2004). The Act requires the EPA to establish National Ambient Air Quality Standards for certain types of air pollutants. 42 U.S.C. § 7409. Although the Air Quality Standards are set federally, the “primary responsibility for assuring” they are met lies with the States. Id. § 7407(a). To that end, the Act directs each State to propose a state implementation plan (“SIP”) that “specif[ies] the manner in which national ... air quality standards will be achieved and maintained” in that State. Id. A State has flexibility to tailor its SIP to local circumstances, so long as the SIP includes certain requirements for permits, enforcement, emissions monitoring, and the like. Id. § 7410(a)(2).

If a State fails to propose a SIP, or proposes one that the EPA determines will not meet the Air Quality Standards, then the EPA may impose its own federal implementation plan for the State. Id. § 7410(c). In contrast, if the EPA approves a State's proposal, then the SIP is added to the Code of Federal Regulations and becomes federal law. At that point, the State's ability to modify the SIP is limited. For example, if a State wants to amend its SIP, it must submit the proposed amendments to the EPA for approval, id. § 7410(k)(3); and the State may not adopt “any emission standard or limitation which is less stringent than” those in the SIP. Id. § 7416.

The Act contemplates that each State will take primary responsibility for enforcing its SIP. If a State fails to enforce the SIP's requirements, the statute affords the EPA itself various means of enforcing them. First, the EPA may take action against violators directly: When “any person has violated or is in violation of any requirement or prohibition of an applicable implementation plan or permit,” 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. Id. § 7413(a)(1). Second, the EPA can take over administration of the State's SIP: When “violations of an applicable implementation plan or an approved permit program ... are so widespread that such violations appear to result from a failure of the State in which the plan or permit program applies to enforce the plan or permit program effectively,” the Administrator may “enforce any requirement or prohibition of such plan or permit program.” Id. § 7413(a)(2). Third, the EPA can sanction the State: If the EPA's Administrator determines that a State has failed to implement “any requirement of an approved plan” (among other “State failure [s]”), the Administrator “shall” impose sanctions upon the State, which may include withdrawal of the State's federal highway funds. Id. § 7509(a)(4), (b)(1)–(2). Significantly for our purposes, however, the Administrator cannot impose any of the available sanctions until the State has been given 18 months to cure the “deficiency[.]” Id. § 7509(a).

To a limited extent, the Act also contemplates private enforcement of its provisions. Specifically, the Act includes a citizen-suit provision that allows “any person” to file suit against “any person ... who is alleged to have violated ... or to be in violation of ... an emission standard or limitation under this chapter[.]” Id. § 7604(a)(1).

B.

The EPA first approved Ohio's SIP in 1972. See40 C.F.R. § 52.1870. The SIP prohibits “new source” air polluters in Ohio from installing or modifying an emissions source without first obtaining a permit from the Director of the Ohio EPA. Ohio Admin. Code § 3745–31–02(A); 40 C.F.R. § 52.1870(c)(127)(i). Before the Director issues the permit, however, the SIP requires the Director to determine that the new or modified source will employ the “best available technology,” or “BAT,” to limit its emissions. Ohio Admin. Code § 3745–31–05(A)(3); 40 C.F.R. § 52.1870(c)(127)(i).

The Director enforced the BAT requirement for several decades. Then, in 2006, the Ohio General Assembly passed legislation that allows the Director to issue permits to smaller emission sources—those producing less than 10 tons per year of emissions (“small emitters”)—without first determining whether those sources will employ BAT. Ohio's Governor signed this legislation. The Ohio EPA amended the Ohio Administrative Code to reflect the exemptions. These amendments took effect on December 1, 2006. Since then, the Director has issued permits to small emitters without determining whether those sources will use BAT. The result is that Ohio no longer administers the BAT requirement against small emitters.

In June 2008, Ohio sought approval to amend its SIP to eliminate the BAT requirement with respect to small emitters. The federal EPA rejected the proposed amendment on procedural grounds, and thus the BAT requirement remains part of the SIP today. But the federal EPA has chosen not to enforce the requirement itself, even though the Act empowers it to do so. See42 U.S.C. § 7413(a). Nor has the EPA chosen to use any of the various means at its disposal under the Act to induce Ohio to enforce the BAT requirement against small emitters. See id. § 7509(a), (b).

C.

In September 2008, the Sierra Club, joined by three Ohio residents, filed a citizen suit against the Director of Ohio's EPA. The complaint alleged, among other things, that the Director's refusal to make a BAT determination before issuing permits to small emitters constituted a “violation of [ ] an emission standard or limitation”within the meaning of the Clean Air Act's citizen-suit provision. 42 U.S.C. § 7604(a)(1). Eventually the plaintiffs moved for summary judgment on this claim. The district court denied the motion, holding that § 7604(a)(1) of 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.

The Sierra Club moved for reconsideration, citing this court's decision in United States v. Ohio Department of Highway Safety, 635 F.2d 1195, 1204 (6th Cir.1980), which involved a different but related provision of the Clean Air Act. The district court adhered to its view that the most natural reading of § 7604(a)(1) would not authorize the plaintiff's suit, but thought that the reasoning of Highway Safety, if not its specific holding, compelled the opposite conclusion. The district court therefore granted the Sierra Club's motion for partial summary judgment and ordered Ohio's EPA “to implement and enforce” the BAT requirement against all emitters.

This appeal followed.

II.

The issue presented by this appeal is whether the Clean Air Act's citizen-suit provision, 42 U.S.C. § 7604, authorizes the plaintiffs to sue the State of Ohio to compel the State to administer the BAT requirement against small emitters. The relevant subsection of § 7604 provides:

(a) Authority to bring a civil action; jurisdiction

Except as provided in subsection (b) of this section, any person may commence a civil action on his own behalf—

(1) against any person (including (i) the United States, and (ii) any other governmental instrumentality or agency to the extent permitted by the Eleventh Amendment to the Constitution) who is alleged to have violated (if there is evidence that the alleged violation has been repeated) or to be in violation of (A) an emission standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation[.]

Id. § 7604(a)(1).

It is undisputed that the State of Ohio, like the federal government, is a “person”...