Sierra Club v. United States Envtl. Prot. Agency
| Decision Date | 10 February 2023 |
| Docket Number | 21-3057 |
| Parties | Sierra Club; Ohio Environmental Council; Donna Ballinger; Marilyn Wall, Petitioners, v. United States Environmental Protection Agency; Michael S. Regan, Administrator, U.S. Environmental Protection Agency, Respondents, State of Ohio, Intervenor. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Argued: October 19, 2022
On Petition for Review from an Order of the United States Environmental Protection Agency; No. EPA-R05-OAR-2020-055.
ARGUED:
D David Altman, ALTMANNEWMAN CO. LPA, Cincinnati, Ohio, for Petitioners Wall and Ballinger. Megan Wachspress, SIERRA CLUB, Oakland, California, for Petitioners Sierra Club and Ohio Environmental Council.
Elliot Higgins, UNITED STATES DEPARTMENT OF JUSTICE, Washington D.C., for Respondent United States Environmental Protection Agency. Samuel C. Peterson, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Intervenor.
ON BRIEF:
D David Altman, Justin D. Newman, Amy J. Leonard, ALTMANNEWMAN CO. LPA, Cincinnati, Ohio, Megan Wachspress, SIERRA CLUB, Oakland, California, for Petitioners. Elliot Higgins, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent United States Environmental Protection Agency. Samuel C. Peterson, Benjamin M. Flowers, Aaron Farmer, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Intervenor. Eric B. Gallon, Robert L. Brubaker, PORTER, WRIGHT, MORRIS &ARTHUR LLP, Columbus, Ohio, Christine Rideout Schirra, Frank L. Merrill, BRICKLER &ECKLER LLP, Columbus, Ohio, for Amici Curiae.
Before: GRIFFIN, GIBBONS, and STRANCH, Circuit Judges.
This case arises under the provisions of the Clean Air Act that give the Environmental Protection Agency (EPA) the authority to establish national ambient air quality standards (NAAQS) for certain pollutants. To achieve, maintain, and enforce those standards, every state is required to develop a plan known as a State Implementation Plan (SIP), which the EPA reviews and, after public notice and comment, either approves or disapproves. Upon approval, a SIP-and all the state regulations it includes-becomes enforceable in federal court. If the EPA determines that its prior approval of a SIP was in error, the EPA can revise the plan using the Clean Air Act's error-correction provision, 42 U.S.C. § 7410(k)(6).
For almost fifty years, Ohio's SIP included an air nuisance rule (ANR) that made unlawful the emission of various substances in a manner or amount that endangered public health, safety, or welfare, or caused unreasonable injury or damage to property. In March of 2020, the EPA proposed removing the ANR from Ohio's SIP using the Clean Air Act's errorcorrection provision. After receiving public comment, the EPA ultimately finalized the removal of the ANR from Ohio's SIP on the grounds that the state had not relied on the rule to implement, maintain, or enforce any NAAQS. The Sierra Club, Ohio Environmental Council, Donna Ballinger, and Marilyn Wall (collectively, Petitioners) timely petitioned for review of the removal of the air nuisance rule, arguing that the EPA improperly invoked 42 U.S.C. § 7410(k)(6) and acted arbitrarily and capriciously in removing the ANR from Ohio's SIP. We grant the petition, holding that Petitioners have standing to challenge the EPA's removal of the ANR from Ohio's SIP, and remand the removal without vacatur so that the Agency may review its action further.
Congress enacted the Clean Air Act (the CAA, or the Act) to "protect and enhance the quality of the Nation's air resources so as to promote the public health and welfare and the productive capacity of its population." 42 U.S.C. § 7401(b)(1). One of the Act's "primary goal[s]" is to "encourage or otherwise promote reasonable . . . State[] and local governmental actions . . . for pollution prevention." Id. § 7401(c). To this end, the CAA requires the EPA to establish and periodically revise national ambient air quality standards, or NAAQS, for certain pollutants to "establish maximum permissible concentrations of those pollutants in the outside or 'ambient' air." Ky. Res. Council, Inc. v. EPA, 467 F.3d 986, 987 (6th Cir. 2006) (citing 42 U.S.C. §§ 7408, 7409). The EPA has set NAAQS for six "criteria pollutants": ozone, particulate matter, carbon monoxide, lead, sulfur dioxide, and nitrogen dioxide. See 40 C.F.R. §§ 50.4-50.19.
Each state has "the primary responsibility" for ensuring that its ambient air meets the NAAQS for the identified pollutants. 42 U.S.C. § 7407(a). As part of this responsibility, states are required to develop SIPs that "include enforceable emission limitations and other control measures, means, or techniques" to provide for the implementation, maintenance, and enforcement of NAAQS and "as may be necessary or appropriate to meet the applicable requirements of" the Act. 42 U.S.C. § 7410(a)(1), (a)(2)(A). States must then submit their SIPs for the EPA's approval. Id. § 7410(a)(1). Upon EPA approval, the SIP and its component laws and regulations become enforceable in federal court by the state itself, the EPA, or members of the public via the CAA's citizen-suit provision. Id. § 7604; Ky. Res. Council, Inc., 467 F.3d at 988. "[T]he provisions of the particular state's SIP determine what conduct is actionable under the CAA." Nat'l Parks Conservation Ass'n, Inc. v. Tenn. Valley Auth., 480 F.3d 410, 418 (6th Cir. 2007).
The Act permits SIPs to be revised in a few ways. If a state wishes to modify its SIP, it must submit any proposed revisions for approval so the EPA can ensure the revision will not interfere with "any applicable requirement concerning attainment and reasonable further progress." 42 U.S.C. §§ 7410(l), 7501(1); 40 C.F.R. § 51.105. Or, if the EPA finds that a SIP is "substantially inadequate" to attain or maintain a given NAAQS or to otherwise comply with the Act, the EPA can require the state to revise the plan to correct its inadequacies. 42 U.S.C. § 7410(k)(5). This process is known as a "SIP call." Sw. Pa. Growth All. v. Browner, 144 F.3d 984, 986 (6th Cir. 1998).
Under certain circumstances, the EPA can also revise a state's SIP using the CAA's error-correction provision, 42 U.S.C. § 7410(k)(6). If the EPA determines that its prior approval of a SIP "was in error," the EPA may, "in the same manner" as its prior approval, revise the SIP "as appropriate without requiring any further submission from the State." 42 U.S.C. § 7410(k)(6). The claimed error can be used to revise a SIP only if the error existed at the time of the SIP's prior approval. See Ala. Env't Council v. EPA, 711 F.3d 1277, 1287-88 (11th Cir. 2013); Texas v. EPA, 726 F.3d 180, 204 (D.C. Cir. 2013) (Kavanaugh, J., dissenting) ("Section [74]10(k)(6) can be used to retroactively disapprove a SIP only if the SIP was out of compliance with the Act or EPA regulations when the SIP was originally approved."). The EPA must provide the basis for its determination to the state and public. 42 U.S.C. § 7410(k)(6).
Ohio's ANR prohibits the emission "of smoke, ashes, dust, dirt, grime, acids, fumes, gases, vapors, or any other substances or combinations of substances, in such manner or in such amounts as to endanger the health, safety or welfare of the public, or cause unreasonable injury or damage to property[.]" Ohio Admin. Code 3745-15-07(A). It has been part of Ohio's SIP since the EPA first approved the SIP in 1974.[1] See 39 Fed.Reg. 13,539 (Apr. 15, 1974); 49 Fed.Reg. 32,181 (Aug. 13, 1984).
The ANR has been revised twice. In 1984, Ohio proposed and the EPA approved a revision "including an exemption for sources of odor which are not currently regulated under other portions of the SIP" and removing references to "comfort." 49 Fed.Reg. at 32,181. In 2015, as part of a five-year state regulatory review process, Ohio made stylistic changes to the ANR to clarify the rule without changing its meaning.
Until the EPA removed the ANR from Ohio's SIP in 2020, parties authorized to enforce Ohio's SIP could and did bring CAA enforcement actions for violations of the ANR. See City of Ashtabula v. Norfolk S. Corp., 633 F.Supp.2d 519, 528-29 (N.D. Ohio 2009) (); Fisher v. Perma-Fix of Dayton, Inc., No. 3:04-CV-418, 2006 WL 212076, at *5 (S.D. Ohio Jan. 27, 2006) (same); see also Sampson v. SunCoke Energy, Inc., No. 1:17-cv-00658 (S.D. Ohio); Graff v. Haverhill N. Coke Co., No. 1:09-cv-00670 (S.D. Ohio).
Petitioners have also relied on the ANR apart from actually bringing CAA litigation. In 2014, Petitioner Sierra Club sent a notice of intent to sue under the CAA to a plant operator in Ohio alleging that levels of sulfur dioxide near the plant exceeded the one-hour NAAQS for sulfur dioxide and therefore violated the ANR. Six years later, Sierra Club's modeling continued to show that sulfur dioxide levels near the plant exceeded levels considered safe by the EPA and continued to violate the ANR. Sierra Club then submitted that modeling as part of comments opposing the EPA's proposed redesignation of the county where the plant was located as having "attained" the one-hour sulfur dioxide NAAQS. At the time the EPA proposed removing the ANR from Ohio's SIP, Sierra Club was preparing CAA litigation to address the plant's ANR violation. And, in 2017 and 2018, Petitioners Sierra Club and Ballinger twice served notices of intent to file CAA citizen suits against a steel plant, alleging violations of the ANR. The first time, just before the 60-day notice period expired, the steel plant entered into a consent decree with the state of Ohio. The second time, regulators and the steel plant agreed to make...
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