In a 2-1 decision, a three-judge panel for the Sixth Circuit reversed a district court decision, which held that private citizens can bring suits against state regulatory agencies that fail to enforce the Clean Air Act (“the Act”). The Appeals Court instructed the lower court to dismiss the Sierra Club and three Ohio citizens’ claim against the Ohio Environmental Protection Agency (“Ohio EPA”) after ruling that the Court’s earlier decision in a 1980 case on the same issue was nullified by a 1997 Supreme Court decision.
Plaintiffs invoked the Act’s citizen-suit provision to challenge a 2006 law adopted by the Ohio EPA which exempted all emission sources producing less than 10 tons per year of pollutants from the State Implementation Plan (“SIP”) – a mandatory mechanism for achieving and maintaining national air quality standards in the United States. As a result, these so-called “small emitters” were granted emission permits without having to show that they would utilize the best available technology (“BAT”) to limit their emissions. The plaintiffs argued that this new policy was a violation of the Act, however, because once a State’s SIP is approved, the State may not adopt “any emission standard or limitation which is less stringent than [those in the SIP].” By exempting small emitters from the BAT requirement the Ohio EPA had adopted a less stringent emission standard than that found in the State’s SIP, the plaintiffs argued.
The issue on appeal was whether the Act’s citizen-suit provision, 42 U.S.C. § 7604, authorizes private citizens to sue the State of Ohio to compel the State to administer the BAT requirement against small emitters. The relevant subsection of § 7604 provides:
(a) Authority to bring a civil action; jurisdiction
Except as provided in subsection (b) of this section, any person may commence a civil action on his own behalf-
(1) against any person (including (i) the United States, and (ii) any other governmental instrumentality or agency to the extent permitted by the Eleventh Amendment of the Constitution) who is alleged to have violated (if there is evidence that the alleged violation has been repeated) or to be in violation of (A) an emission standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such standard or limitation[.]
The plaintiffs’ theory was that Ohio’s failure to administer the BAT requirement with respect to small emitters was itself a “violation of . . . an emission standard or limitation.” Since a suit is not authorized unless a “violation” of the Act occurs, the court’s analysis focused on the definition of this key term while assuming, without deciding, that the BAT regime qualifies as a “standard or limitation” under the Act.
The plaintiffs advanced a colloquial definition of the term, arguing that “if the SIP requires the State to administer the BAT regime, and the State fails to administer it, then [a violation has occurred].” The court rejected this definition in favor of the State’s more technical definition, finding that the term “violation” applies only to “regulated entities” rather than to the actions or omissions of a “regulator qua regulator.”
The court based its finding on the U.S. Supreme Court’s reasoning in Bennett v. Spear, 520 U.S. 154 (1997), in which the Court interpreted the term “violation” in the citizen-suit provision of the Endangered Species Act (“ESA”). In that case, the Court held that the citizen-suit provision “did not permit a citizen suit against a federal agency for its failure to perform a regulatory duty.” That provision “cannot be interpreted to include the [government’s] maladministration [in the implementation] of the ESA,” the Court wrote. Rather, it is a means of “enforcing the substantive provisions of the ESA against regulated parties.”
The Sixth Circuit found persuasive the Supreme Court’s reasoning that the term “violation” was used elsewhere in the ESA in contexts in which it was unlikely to refer to maladministration of the ESA by federal officers or employees. Examples of these “contexts” were the ESA’s provisions for civil and criminal penalties. Under the ESA, the federal EPA Administrator is authorized to impose substantial civil or criminal penalties against “any person” who has violated the terms of an SIP. The Court held that it was unlikely that the statute intended to subject government officers and employees to civil and criminal liability.
The Sixth Circuit found this reasoning to be especially persuasive under the Clean Air Act because of the possible harsh civil penalties (fines of up to $25,000 per day of violation) and criminal penalties (imprisonment not to exceed 5 years) authorized by the Act. The court found the plaintiffs’ position that the penalty provisions merely afford the EPA Administrator “discretion” to impose ruinous sanctions against the Ohio EPA Administrator to be untenable. “The implications of the plaintiffs’ interpretation of the term [‘]violation[‘] as used in the [Act] render the interpretation implausible,” wrote the court, therefore limiting the application of the term “violation” to “regulated parties.”
Despite the panel’s rejection of their interpretation of the term “violation,” the plaintiffs argued that the Sixth Circuit could not ignore the Circuit’s own precedent set in its 1980 decision in United States v. Ohio Department of Highway Safety, 635 F.2d 1195 (6th Cir. 1980). In that case, the U.S. EPA sought to enforce a provision of Ohio’s SIP that required the Ohio Department of Highway Safety to withhold registration from vehicles that did not pass emission inspections. In its defense, the State argued that § 7413(a)(1) of the Act “authorized the EPA to sue only regulated parties, not the State in its capacity as a regulator.” Emphasis added. Despite recognizing in Highway Safety that “there is no explicit authorization in the Act for EPA to bring a direct action against a state” and despite labeling the Act’s legislative history as “imprecise,” the earlier court nonetheless held that a State can be sued as a violator under the Act.
The current court took exception to this holding, however, describing the opinion as “dubious at best” and criticizing the earlier court’s textual and structural interpretations of the Act. Relying again on Bennett v. Spear, the Sixth Circuit characterized Highway Safety as “irreconcilable” with the Court’s interpretation of the citizen-suit provision in the ESA. In Bennett, the Court held that the ESA’s citizen-suit provision does allow suits against the Secretary of the Interior for failure to perform his duties. The Sixth Circuit extended this reasoning to its interpretation of the Clean Air Act’s citizen-suit provision in holding that the Director of the Ohio EPA cannot be sued because of his failure to administer the BAT regime. Finally, the court discounted Highway Safety’s viability because it was decided in a bygone era in which courts used balancing tests to hold that the federal government can require States to administer federal regulatory programs. In order to leave no doubt about its stance, the majority poetically labeled Highway Safety as a “bottle of dubious vintage, whose contents turned to vinegar long ago, and which we need not consume here.”
In his dissenting opinion, Judge Cole attacked the majority’s rejection of Highway Safety and wrote in favor of deferring to what he saw as a controlling and viable precedent. In his opinion, Judge Cole argued that the abandonment of a case’s holding requires “more than a belief” that the Supreme Court would overturn that case. “There must be some precedential effect of the intervening authority that [‘]requires[’] us to ignore our prior mandates,” he wrote. Not to be outdone by the majority’s parlance, Judge Cole responded: “[i]t is, frankly, not up to us to decide if Highway Safety is a [‘]bottle of dubious vintage.[‘] Regardless of whether its [‘]contents turned to vinegar,[‘] we must plug our noses and drink.”
Despite its rejection of the plaintiffs’ position, the court left the door open for the plaintiffs to bring a subsequent action by suggesting that they might have a cause of action against the U.S. EPA for failing to impose sanctions on the Ohio EPA for its failure to enforce the SIP. In explaining the plaintiffs’ initial error and possible future course of action, the court noted, “If [the plaintiffs] want to sue a regulatory agency, they can do so. They have simply chosen the wrong one. The agency that the [Clean Air Act] authorizes them to sue is the federal EPA.” Emphasis added. The plaintiffs have not yet indicated whether they will appeal to the U.S. Supreme Court or file a new claim against the U.S. EPA.
The case is Sierra Club v. Korleski, No. 10-3269 (6th Cir. 2012). It can be accessed at http://www.ca6.uscourts.gov/opinions.pdf/12a0156p-06.pdf.
This article was authored by Chris M. Hunter, Jackson Kelly PLLC. For more information on the author see here.