As a result of Sierra Club’s legal advocacy, Ohio citizens will regain the right to bring federal citizen suits against polluters that create an air pollution “nuisance” (i.e., which endangers public health, safety, or welfare or damages property).
At the end of the Trump administration, the U.S. Environmental Protection Agency weakened Ohio’s Clean Air Act implementation plan by removing the rule that allowed Ohio residents to bring federal citizen suits against local polluters. EPA removed this rule over the objections of more than 1,800 Ohio residents who took action through a Sierra Club letter-writing campaign. Ignoring these residents, EPA instead acted at the request of a lobbyist for SunCoke Energy, a defendant in an air nuisance case brought under the nuisance rule.
Sierra Club sued EPA, arguing that removing the rule was illegal, particularly because EPA failed to disclose the role of lobbyists. The involvement of Perkins Coie, a law firm representing SunCoke in securities matters, was exposed during the litigation and confirmed by a Freedom of Information Act request. EPA initially defended its action, but following Sierra Club’s opening brief in the U.S. Sixth Circuit Court of Appeals, EPA switched its strategy and challenged Sierra Club’s standing while seeking “voluntary remand” to reconsider its decision.
In a unanimous opinion, the Court found that Sierra Club had standing and granted EPA’s request for a voluntary remand to reconsider the rule. EPA has now proposed to reinstate the rule, conceding most of the arguments made by Sierra Club in the litigation. Reinstatement means that Ohioans who suffer from hazardous levels of pollution will be able to sue to stop harmful pollution based on its effects on their health and neighborhoods, rather than relying on polluters’ own reporting and monitoring. Frontline communities will once again be able to use this long-standing legal mechanism to protect their air quality, signaling to polluters that they are accountable for the conditions they create in communities. The case has also drawn important attention to agency lobbying by polluters.
Sierra Club was represented in this litigation by Sierra Club Staff Attorney Megan Wachspress, with support from Chief Appellate Counsel Sanjay Narayan.