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Only the Westlaw Citation Is Currently Available. United States Court Of Page 1 --- F.3d ----, 2012 WL 1889393 (C.A.6 (Ohio)) (Cite as: 2012 WL 1889393 (C.A.6 (Ohio))) OPINION Only the Westlaw citation is currently available. KETHLEDGE, Circuit Judge. *1 The State of Ohio, pursuant to legislation United States Court of Appeals, passed by its General Assembly and signed by its Sixth Circuit. Governor, has chosen no longer to administer a par- SIERRA CLUB; Michael Sinclair; Theresa Cole; ticular federal regulation promulgated under the Josephine Cole, Plaintiffs–Appellees, Clean Air Act. The plaintiffs brought this lawsuit to v. compel the State to administer the federal regula- Christopher KORLESKI, Director, Ohio Environ- tion. As authority for the suit, the plaintiffs invoke mental Protection Agency, Defendant–Appellant. the Clean Air Act's citizen-suit provision. The State contends that the suit is not authorized by that pro- No. 10–3269. vision. The district court agreed with the State's Argued: July 20, 2011. contention, but felt bound to rule otherwise in light Decided and Filed: May 25, 2012. of a case decided in 1980 by this court. The district Appeal from the United States District Court for the court therefore entered an injunction expressly or- Southern District of Ohio at Columbus. No. dering the State to administer the federal rule. We 08–00865—Mark R. Abel, Magistrate Judge. conclude, based upon intervening Supreme Court ARGUED:Alexandra T. Schimmer, Office of the precedent and the text and structure of the Clean Ohio Attorney General, Columbus, Ohio, for Ap- Air Act itself, that the Act's citizen-suit provision pellant. D. David Altman, D. David Altman Co., does not authorize this lawsuit. We therefore re- L.P.A., Cincinnati, Ohio, for Appellees. Peter J. verse the district court's judgment and remand with McVeigh, United States Department of Justice, instructions to dismiss the complaint. Washington, D.C., for Amici Curiae. ON BRIEF: I. Alexandra T. Schimmer, David M. Lieberman, A. Gregg H. Bachmann, Thaddeus H. Driscoll, Samuel “The federal Clean Air Act is a model of co- C. Peterson, Office of the Ohio Attorney General, operative federalism.” Ellis v. Gallatin Steel Co., Columbus, Ohio, for Appellant. D. David Altman, 390 F.3d 461, 467 (6th Cir.2004). The Act requires Justin D. Newman, D. David Altman Co., L.P.A., the EPA to establish National Ambient Air Quality Cincinnati, Ohio, for Appellees. Peter J. McVeigh, Standards for certain types of air pollutants. 42 United States Department of Justice, Washington, U.S.C. § 7409. Although the Air Quality Standards D.C., David E. Northrop, Robert L. Brubaker, Port- are set federally, the “primary responsibility for as- er, Wright, Morris & Arthur LLP, Columbus, Ohio, suring” they are met lies with the States. Id. § for Amici Curiae. 7407(a). To that end, the Act directs each State to propose a state implementation plan (“SIP”) that Before SILER, COLE, and KETHLEDGE, Circuit “specif[ies] the manner in which national ... air Judges. quality standards will be achieved and maintained” in that State. Id. A State has flexibility to tailor its KETHLEDGE, J., delivered the opinion of the SIP to local circumstances, so long as the SIP in- court, in which SILER, J., joined. COLE, J. (pp. cludes certain requirements for permits, enforce- 19–21), delivered a separate dissenting opinion. ment, emissions monitoring, and the like. Id. § 7410(a)(2). If a State fails to propose a SIP, or proposes © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 2 --- F.3d ----, 2012 WL 1889393 (C.A.6 (Ohio)) (Cite as: 2012 WL 1889393 (C.A.6 (Ohio))) one that the EPA determines will not meet the Air § 7509(a). Quality Standards, then the EPA may impose its own federal implementation plan for the State. Id. § *2 To a limited extent, the Act also contem- 7410(c). In contrast, if the EPA approves a State's plates private enforcement of its provisions. Spe- proposal, then the SIP is added to the Code of Fed- cifically, the Act includes a citizen-suit provision eral Regulations and becomes federal law. At that that allows “any person” to file suit against “any point, the State's ability to modify the SIP is lim- person ... who is alleged to have violated ... or to be ited. For example, if a State wants to amend its SIP, in violation of ... an emission standard or limitation it must submit the proposed amendments to the under this chapter[.]” Id. § 7604(a)(1). EPA for approval, id. § 7410(k)(3); and the State B. may not adopt “any emission standard or limitation The EPA first approved Ohio's SIP in 1972. which is less stringent than” those in the SIP. Id. § See 40 C.F.R. § 52.1870. The SIP prohibits “new 7416. source” air polluters in Ohio from installing or The Act contemplates that each State will take modifying an emissions source without first obtain- primary responsibility for enforcing its SIP. If a ing a permit from the Director of the Ohio EPA. State fails to enforce the SIP's requirements, the Ohio Admin. Code § 3745–31–02(A); 40 C.F.R. § statute affords the EPA itself various means of en- 52.1870(c)(127)(i). Before the Director issues the forcing them. First, the EPA may take action permit, however, the SIP requires the Director to against violators directly: When “any person has vi- determine that the new or modified source will em- olated or is in violation of any requirement or pro- ploy the “best available technology,” or “BAT,” to hibition of an applicable implementation plan or limit its emissions. Ohio Admin. Code § permit,” the EPA's Administrator may “issue an or- 3745–31–05(A)(3); 40 C.F.R. § 52.1870(c)(127)(i). der requiring such person to comply,” “issue an ad- The Director enforced the BAT requirement for ministrative penalty order,” or “bring a civil action” several decades. Then, in 2006, the Ohio General to require compliance. Id. § 7413(a)(1). Second, the Assembly passed legislation that allows the Direct- EPA can take over administration of the State's SIP: or to issue permits to smaller emission When “violations of an applicable implementation sources—those producing less than 10 tons per year plan or an approved permit program ... are so wide- of emissions (“small emitters”)—without first de- spread that such violations appear to result from a termining whether those sources will employ BAT. failure of the State in which the plan or permit pro- Ohio's Governor signed this legislation. The Ohio gram applies to enforce the plan or permit program EPA amended the Ohio Administrative Code to re- effectively,” the Administrator may “enforce any flect the exemptions. These amendments took effect requirement or prohibition of such plan or permit on December 1, 2006. Since then, the Director has program.” Id. § 7413(a)(2). Third, the EPA can issued permits to small emitters without determin- sanction the State: If the EPA's Administrator de- ing whether those sources will use BAT. The result termines that a State has failed to implement “any is that Ohio no longer administers the BAT require- requirement of an approved plan” (among other ment against small emitters. “State failure[s]”), the Administrator “shall” im- pose sanctions upon the State, which may include In June 2008, Ohio sought approval to amend withdrawal of the State's federal highway funds. Id. its SIP to eliminate the BAT requirement with re- § 7509(a)(4), (b)(1)-(2). Significantly for our pur- spect to small emitters. The federal EPA rejected poses, however, the Administrator cannot impose the proposed amendment on procedural grounds, any of the available sanctions until the State has and thus the BAT requirement remains part of the been given 18 months to cure the “deficiency[.]” Id. SIP today. But the federal EPA has chosen not to © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 3 --- F.3d ----, 2012 WL 1889393 (C.A.6 (Ohio)) (Cite as: 2012 WL 1889393 (C.A.6 (Ohio))) enforce the requirement itself, even though the Act Ohio to compel the State to administer the BAT re- empowers it to do so. See 42 U.S.C. § 7413(a). Nor quirement against small emitters. The relevant sub- has the EPA chosen to use any of the various means section of § 7604 provides: at its disposal under the Act to induce Ohio to en- force the BAT requirement against small emitters. (a) Authority to bring a civil action; jurisdiction See id. § 7509(a), (b). Except as provided in subsection (b) of this sec- C. tion, any person may commence a civil action on In September 2008, the Sierra Club, joined by his own behalf— three Ohio residents, filed a citizen suit against the (1) against any person (including (i) the United Director of Ohio's EPA. The complaint alleged, States, and (ii) any other governmental instru- among other things, that the Director's refusal to mentality or agency to the extent permitted by make a BAT determination before issuing permits the Eleventh Amendment to the Constitution) to small emitters constituted a “violation of [ ] an who is alleged to have violated (if there is evid- emission standard or limitation” within the meaning ence that the alleged violation has been re- of the Clean Air Act's citizen-suit provision. 42 peated) or to be in violation of (A) an emission U.S.C. § 7604(a)(1). Eventually the plaintiffs standard or limitation under this chapter or (B) moved for summary judgment on this claim. The an order issued by the Administrator or a State district court denied the motion, holding that § with respect to such standard or limitation[.] 7604(a)(1) of the Act authorizes citizen suits against a State only to the extent the State itself Id.
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