The Sixth Circuit reinstated Ohio’s small air emission source exemption to the best available technology rule (“BAT”) in Sierra Club v. Christopher Korleski (No. 10-3269).  Under the Clean Air Act, states must create state implementation plans (“SIPs”) to meet certain air quality standards. If the EPA approves the state’s proposal, the SIP becomes federal law, and any amendments must first be submitted to the EPA for approval.  In 2006, new Ohio legislation allowed the Ohio EPA to exempt “small emitters” of air pollution from its BAT regulation.  While the Ohio EPA revised its own BAT rule to incorporate the exemption, the EPA later rejected the amendment on procedural grounds.

The Sierra Club sued the Ohio EPA under the “citizen suit” provision of the Clean Air Act claiming that the new exemption violated the emission standards under 42 USC 7604(a)(1).  The district court struck down Ohio’s BAT exemption based on U.S. EPA v. Ohio Dept. of Highway Safety, 635 F.2d 1195 (6th Cir. 1980), which interpreted the same language in another provision and found standing to sue regulators for their regulatory decisions.  It ordered the Ohio EPA to “implement and enforce” the BAT requirement against all emitters.  On appeal, the Ohio EPA argued the “citizen suit” provision only permits citizens to enforce the substantive provisions of the law against regulated parties.

The panel agreed with the Ohio EPA’s interpretation and criticized Highway Safety for failing to analyze the text, structure, and legislative history of the Clean Air Act.  Holding that citizens could not sue regulators as regulators, it emphatically declared that Highway Safety is no longer good law because of intervening Supreme Court decisions, calling it “a bottle of dubious vintage, whose contents turned to vinegar long ago, and which we need not consume here.”  It also encouraged the U.S. EPA to engage states directly to resolve these types of issues in the future. In dissent, Judge Cole argued for deference to precedent and the presumption that the same words in the same statute must be given the same meaning in later cases.  He acknowledged the majority’s “nuanced and thoughtful writing,” but stated that “[r]egardless of whether [Highway Safety’s] ‘contents turned to vinegar’…[we] must plug our noses and drink.”