We just saw this decision from the Southern District of Ohio, striking an Ohio law that allows numerous exemptions from the federal Clean Air Act. The OEPA rule, Ohio Adm. Code § 3745-31-05, had allowed the agency to exempt certain smaller sources from Ohio’s State Implementation Plan–the state’s plan for complying with the Clean Air Act’s emissions limitations. The decision essentially said that OEPA cannot sanction emissions that violate federal pollution standards:
“The Director is ORDERED to implement and enforce O.A.C. § 3745-31-05 contained in the U.S. EPA approved Ohio SIP (i.e., to enforce BAT requirements against new and modified under 10 ton sources of NAAQS pollution), and the Director is ENJOINED from further implementation of the BAT exemption that contravenes the federally-approved Ohio SIP.”
The decision was the result of a citizen suit filed by the Sierra Club. Most federal laws such as the Clean Air Act allow adversely affected citizens to sue violators or states to compel enforcement.
While there are lots of interesting legal questions in this opinion (such as the extent of a state’s Eleventh Amendment immunity from citizen suits), the takeaway from the decision is that it could make it more difficult for states like Ohio to avoid the requirements of federal environmental laws. This is good news, and a courageous decision authored by Judge Abel.