Environmental advocates are challenging the legality of the state’s decision to roll back tools Ohioans have used for decades to fight air pollution.
A new lawsuit filed by the Ohio Environmental Council, Sierra Club and others argues that the Ohio legislature violated the state constitution when lawmakers included amendments in the budget that limit citizens’ ability to enforce federal Clean Air Act standards.
The budget bill passed in June includes a provision directing the Ohio Environmental Protection Agency to remove a 50-year-old air nuisance rule from Ohio’s federal plan to enforce the Clean Air Act.
The budget also includes a provision that disqualifies the use of community air monitoring data in regulatory actions. The provisions were tucked in the middle of the 3,000-page budget appropriations bill.
The lawsuit points to the single-subject rule in the constitution, which requires legislation to only cover one subject, and that subject should be described in the title of the bill.
“The entire purpose of that is to make sure Ohioans are aware of what the legislature is proposing,” said Miranda Leppla, director of the Environmental Law Clinic at Case Western Reserve University.
Leppla is the attorney representing the Sierra Club and Ohio Environmental Council. She said Ohio courts have upheld the single-subject rule in multiple cases when funding bills included amendments unrelated to budget matters.
“If the legislature is moving a piece of legislation, you might want to send a letter to your representative," Leppla said, explaining why the single-subject rule exists. "You might want to testify in front of the legislature about why you think it's a good or bad idea.”
Leppla continued: “It's not something that any Ohioan should expect to be buried within a financial piece of legislation.”
The state of Ohio and Ohio EPA are the defendants in the case. The Ohio Attorney General’s office, which represents both parties, didn’t respond to WYSO’s requests for comment.
Environmental advocates come to the rule’s defense
This year’s budget bill is third attempt to remove Ohio’s federal air nuisance rule in the past five years. This rule allows citizens and local governments to file or threaten federal lawsuits against air-polluting entities to bring them into compliance.
Support for repealing this rule has typically come from the business community, who claim getting rid of it would prevent unfounded citizen nuisance claims in court.
But Chris Tavenor, general counsel for the Ohio Environmental Council, said the air nuisance rule is there to protect fenceline communities.
“Ohioans experience air pollution and public health impacts from air pollution in a lot of different ways that sometimes aren't caught by the oversight of an air permit for a polluting facility or the National Ambient Air Quality Standards,” Tavenor said.
If state and federal agencies’ investigations or orders don’t result in relief, residents and local governments can turn to federal court with the rule.
“The air nuisance rule ensures that individuals can be pursuing complaints where they're being harmed, especially in the absence of potential action from state or federal agencies,” Tavenor said.
Even if the rule is removed, the Ohio EPA will still be able to enforce the Clean Air Act using state regulations. In an email, Ohio EPA’s Chief Communications Officer Meghan Harshbarger said the agency “will still apply the (state) rule on a case-by-case basis when local air nuisance issues arise.”
However, the Ohio EPA told WYSO in September that there isn’t an equivalent to the citizen lawsuit provision in Ohio’s regulations.
Before formally requesting the U.S. EPA remove the rule from Ohio’s Clean Air Act plan, the Ohio EPA took public comments — most of which favored keeping the rule.
The Ohio EPA said in an email the state budget requires the agency to make the request.
The Ohio EPA’s proposal to remove the rule is in the hands of the U.S. EPA as of Nov. 14.
The Ohio EPA told WYSO in July the U.S. EPA has up to 18 months to make a decision on the request.
Fenceline communities want court “to do the right thing”
One of the plaintiffs in the case is Donna Ballinger, a Middletown resident who’s been concerned about local air pollution from a nearby steel mill and industrial coke factory for years.
Ballinger was involved in a successful petition to reinstate the air nuisance rule in 2024. When the rule was reinstated in this past February, Ballinger worked with the Sierra Club to gather evidence of air nuisance violations, the complaint says.
That includes the use of portable air monitoring equipment to measure and collect nearby air pollution levels. The state budget restricts the use of these monitors in regulatory cases.
With both of these changes, Ballinger said she’ll be left with even fewer options for enforcement.
“I hope that the lawyers and the courts do the right thing for people that are up against anyone that's polluting,” Ballinger said.
Previously, there was no definition for a community air monitor in Ohio’s regulations, let alone a restriction. Now, state and local air pollution control authorities can only rely upon data from EPA-permitted air monitors.
Two members of the Ohio Environmental Council installed 16 air monitors in their Granville community in collaboration with Ohio State University and Google to gather baseline air quality data as nearby industry expands. The 16 air monitors cost a total of $7,000, whereas a single EPA-grade monitor can cost $50,000, the plaintiffs said.
The Granville air monitors can measure particulate matter, volatile organic compounds and nitrogen oxide levels in the air. But the new provision renders the data obsolete, the lawsuit says.
“That air monitor may not be the super expensive multi-thousand dollar air monitor that the U.S. EPA can afford,” Tavenor said. “But it may be an air monitor that still gives important information about what they're experiencing and tells a data narrative about their acute experience at their home or their place of work or whatever it might be. And that data matters.”
The case is in the Franklin County Common Pleas Court. A judge will decide on the case without a live trial.
