For decades, Ohioans have had multiple tools at their disposal to keep air polluters in check. But Ohio’s budget bill passed over the summer strips away some of those options.
Now, environmental groups are suing Ohio to restore these rights.
WYSO environment reporter Adriana Martinez-Smiley joined the Ohio Newsroom to explain what’s unfolding in court and why.
On what the lawsuit is about
Adriana Martinez-Smiley: “In this lawsuit, environmental groups like the Ohio Environmental Council and Sierra Club alleged that the Ohio legislature unlawfully added air pollution amendments into the Ohio budget bill this summer. House Bill 96 set the budget for the state of Ohio for the next two years, but the bill also included a provision telling the Ohio EPA to repeal a 50-year-old air nuisance rule. It also included a restriction on community air monitors, saying they can no longer be used in regulatory enforcement.
“The groups say this is unlawful because the Ohio Constitution has a clause known as the single-subject rule. This states, ‘No bill shall contain more than one subject, which shall be clearly expressed in its title.’ I spoke with environmental attorney Miranda Leppla, who is representing the OEC and Sierra Club, and she gave more details on why the state constitution requires this.
Leppla: “If the legislature is moving a piece of legislation, you might want to send a letter to your representative. You might want to testify in front of the legislature about why you think it’s a good or bad idea."
AMS: “The Ohio Attorney General’s office is representing both the state of Ohio and the Ohio EPA, but the Attorney General office didn’t respond to my request for comment.”
On the history of the Air Nuisance Rule
AMS: “This is actually the third time that officials have tried to remove this rule. It was actually reinstated earlier this year. The reason why environmental groups care about this rule so much is because of its citizen suit provision. This defines air pollution as a public nuisance and allows citizens and local governments to threaten air polluters with legal action if they suspect they’re violating the federal Clean Air Act. This can be found in Ohio’s federal plan to enforce the Clean Air Act. The Ohio EPA can still enforce the Clean Air Act using state regulations, but Ohio doesn’t have an equivalent to the citizen suit provision. General counsel for the Ohio Environmental Council, Chris Tavenor explained this to me.
Tavenor: “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."
AMS: “Typically, it’s the business community that’s favored repealing the rule, such as the Ohio Oil and Gas Association or the Ohio Manufacturers Association. They say they want to avoid citizen lawsuits that are unsubstantiated or that it should be left up to the Ohio EPA or U.S. EPA to find violations. As part of the process to remove the air nuisance rule, the Ohio EPA had to allow public comments on the proposal, and a majority of these comments supported keeping the air nuisance rule. In a letter that it sent to the U.S. EPA, the Ohio EPA says that it doesn’t use the air nuisance rule nor is it required to maintain national ambient air quality standards of the Clean Air Act.”
On community air monitoring
AMS: “There were previously no restrictions on the use of community air monitoring data, so anything that isn’t an EPA-grade monitor or installed by way of a permit is considered a community air monitor. The reason that they’re concerned about this is because EPA-grade air monitors aren’t easy to come by. They’re very expensive, so the litigants say they’re cost-prohibitive. And the state or federally sanctioned air monitors can be miles away from polluting sources, which can result in air monitoring deserts, as Leppla put it.”
On the impacts
“The lawsuit mentions members of the Ohio Environmental Council that would be directly impacted. These members installed 16 community air monitors in Granville, where they live. And the purpose was to track air quality data as nearby industry expands. They did it in collaboration with Google and Ohio State. All of the monitors together cost $7,000, but the plaintiffs say a single EPA-grade monitor would cost $50,000.
“A Middletown resident named Donna Ballinger is also a plaintiff in the case. She says she used community air monitoring equipment to gather evidence of pollution coming from a neighboring steel plant. She was also planning to use the air nuisance rule for enforcement, but with these changes, neither of those things will matter. She says she’s been making reports to the Ohio EPA, so the air nuisance rule would have been another option she could exercise.
Ballinger: “I hope that the lawyers and the courts do the right thing for people that are up against anyone that’s polluting.”
On what’s next
“To be clear, the air nuisance rule isn’t officially repealed. That’s up to the U.S. EPA to make that call. But there will be a comment period at that time as well that hasn’t been announced. A judge will decide on the case without a live trial, but there’s not a date available for when that will take place.”
