Ohioans may lose one of the tools that residents have used to fight back against pollution.
This is because of the state budget that passed earlier this month, which seeks to remove a rule that allows Ohioans to sue polluters whose emissions jeopardize air quality.
Some legislators and industrial stakeholders are on-board with the move.
But environmental advocates fear this repeal means one less avenue to hold industry emitters accountable.
Big change flies under the radar
The repeal flew under the radar among hundreds of amendments included in House Bill 96, which was officially signed by Gov. Mike DeWine on July 1.
This rule is a part of Ohio’s state implementation plan of the landmark federal Clean Air Act, which established national air quality standards and limits air emissions from stationary or mobile sources.
It’s often referred to as Ohio’s “air nuisance rule.”
Since the 1970s, it’s defined air pollution as a public nuisance and allowed residents and local governments alike to file lawsuits in federal court to enforce the Clean Air Act themselves if they suspect an entity is in violation of the law.
Once repealed, any entity outside of the state and federal government would no longer be empowered to litigate in federal court against air polluters.
House Bill 96 directs the Ohio Environmental Protection Agency’s director to “remove the air nuisance rule from the plan and take such steps as are necessary to do so.” According to a statement from Ohio EPA spokesperson Dina Pierce, that process has already started.
“Ohio EPA is currently updating the State Implementation Plan to be sent to U.S. EPA,” the statement reads. “This process requires Ohio EPA to engage with interested stakeholders, including a public comment period and public hearing.”
Public comments may be used to make any “necessary changes” to the plan before it will be submitted to the U.S. EPA, according to Pierce.
The EPA hasn't started taking public comment yet.
Not first, not second – third attempt at a repeal
This isn’t the first time that legislators have targeted this rule.
This rule was previously removed from Ohio’s state implementation plan in November 2020 during Trump’s first term by the U.S. EPA, which contended that its removal was an error correction.
“I’ve introduced a resolution to reverse this bad-faith policy because it hurts Ohioans and does nothing to improve our air quality."
This decision was then reversed in 2024 by the U.S. EPA under Biden’s administration that said the initial rule was correct. That rule once again went into effect on February 20 this year.
“In the record of the EPA's decision reinstating the air nuisance rule… it acknowledged that the rule has been used as necessary to to come into compliance or to meet the Clean Air Act's air quality standards,” said Joya Manjur, associate attorney with Sierra Club’s environmental law office.
Businesses feel burdened
But Ohio’s U.S. senators Bernie Moreno and Jon Husted, as well as representatives Troy Balderson and Michael Rulli submitted a joint resolution in March seeking to undo the re-implementation of the rule, but it failed to see movement in either chamber.
It's not clear who drafted the amendment. WYSO contacted several Ohio senators but didn’t receive a response as of publish time.
“One of the Biden administration’s last acts was to punish Ohio by making our businesses targets for lawsuits that the EPA has explicitly barred in other states,” wrote Husted in a statement. “I’ve introduced a resolution to reverse this bad-faith policy because it hurts Ohioans and does nothing to improve our air quality.”
The Ohio Senate was the first to pursue a means of repeal in the state budget bill. WYSO contacted several Ohio senators but didn’t receive a response as of publish time. It is currently unclear who drafted the amendment.
The Ohio Chamber of Commerce, the Ohio Manufacturers’ Association and the Ohio Chemistry Technology Council are some supporters of this repeal.
Tony Long, director of energy and environmental policy with the Ohio Chamber of Commerce said as a business community, if they’re following the remainder of the Ohio SIP, that should be “good enough.”
“If I go in and I comply with what the government's telling me, then I shouldn't have this other burden on me that a third party can bring me to federal court saying that I'm creating a nuisance in an attempt to just get a settlement from me for them to drop their suit,” Long said.
There will still be avenues available for Ohioans to deal with air pollution burdens from industry; the Ohio Revised Code, through Ohio’s agencies, can be used to address air nuisances.
'Not something that the citizens of Ohio want'
This law, however, has proved useful for residents and local governments.
In 2007, nuclear waste and disposal company Perma-Fix reached a $1.3 million settlement after a Dayton area resident filed a federal lawsuit against the company citing the air nuisance rule in Ohio’s state implementation plan. In 2009, the city of Ashtabula also cited the rule in a case against Norfolk Southern for its coal dust storms.
Since the repeal of the rule, it had both halted and prevented citizen lawsuits against polluters for damages.
In 2017, a resident brought a citizen lawsuit against SunCoke Energy and Haverhill Coke Company for alleged Clean Air Act violations at their Scioto County coal-based industrial coke oven facility. While this litigation was active, the U.S. EPA removed the rule from Ohio’s state implementation plan, leading the case to be dismissed.
“I think that by doing this, their efforts now through the state budget to sneak this in at the last minute…really further demonstrates that this is not a popular thing. It's not something that the citizens of Ohio want.”
In 2022, the environmental advocacy organization Sierra Club, the Ohio Environmental Council, and two Ohio residents filed an appeal on the 2020 removal of the rule. The residents litigating in the case lived near a Middletown coke oven plant owned by AK Steel. They said that the removal of the rule “deprived (them) of the ability to pursue relief from this continuing pollution,” according to case documents.
The litigants also said that the EPA removed Ohio's rule from the plan shortly after the law firm that represented SunCoke Energy in the 2017 case requested the agency to do so. Ultimately, the federal judge ruled in Sierra Club’s favor.
Neil Waggoner, campaign manager with Sierra Club’s “Beyond Coal” campaign, said that all the attempts to remove this rule is “striking” since this is a rule that ultimately forces polluters to comply with the law.
“I think that by doing this, their efforts now through the state budget to sneak this in at the last minute…really further demonstrates that this is not a popular thing. It's not something that the citizens of Ohio want,” said Waggoner, who is based in Columbus.
As far as using state laws, Manjur said that air nuisance complaints often have to go through the Ohio EPA, but the agency ultimately has to be the one to pursue litigation in those cases.
“There's no state avenue for citizens to bring their own air nuisance enforcement actions. There's no equivalent of the federal citizen suit provision,” Manjur said.
