The citizen suit provision in section 7604(a)(1) of the Clean Air Act does not allow a case against a state environmental agency for failure to implement terms of that state’s state implementation plan (SIP). The section specifies that a citizen suit is permissible when an emission standard or limitation is allegedly violated. In other words, if the state itself had violated national ambient air quality standard (NAAQS), any person could have lawfully sued under the CAA. But an alleged failure by a state regarding administration of the SIP is not technically a CAA violation and therefore is not actionable under section 7604(a)(1).

Those are the key points made by two of three judges for the U.S. Court of Appeals for the 6th Circuit in Sierra Club v. Korleski (no. 10-3269, decided and filed May 25, 2012). The case involves a decision by Ohio EPA (EPA) and its director, Christopher Korleski, in 2006 to issue an amendment to its SIP that allows issuance of new source air permits to smaller emission sources (those producing less than 10 tons of emissions per year) without first determining whether those sources will employ best available technology (BAT) to control those emissions. OEPA had required BAT for several decades before allowing the exception for small sources. In June 2008 OEPA requested that U.S. EPA approve the SIP amendment. U.S. EPA denied the request, but has not chosen to use any of the tools provided under the CAA to induce OEPA to enforce the BAT requirement for small sources. Neither has U.S. EPA exercised authority also available under the Act to enforce the requirement itself.

According to the Sierra Club, other plaintiffs, and U.S. EPA, which filed an amicus brief, OEPA’s failure to administer the BAT requirement with respect to small emitters is itself a “violation of . . . an emission standard or limitation” as those terms are used in section 7604(a)(1). The state responded that the sentence structure of a provision further along in the CAA (section 7604(f)(4)) makes clear that citizen suits apply only to standards or limitations that are set forth in a permit—which would mean the term does not include the state’s obligation to enforce the BAT requirement since that obligation is set forth only in the SIP.

The district court that first heard the case agreed with the state, but decided to rule for the plaintiffs based on a 1980 6th Circuit opinion (United States v. Ohio Department of Highway Safety) that involved another section of the CAA. In that case, the 6th Circuit construed the term “violation” as used in CAA section 7413(a)(1) to include Ohio’s refusal “to withhold registration from vehicles which have not passed emission inspection.” However, in its current opinion, the 6th Circuit points to a subsequent case in 1997 (Bennett v. Spear, 520 U.S. 154) in which the U.S. Supreme Court held that language in another “nearly identical” portion of the CAA did not permit a citizen suit against a federal agency for its failure to perform a regulatory duty. As the 6th Circuit points out, the Supreme Court’s 1997 ruling indicates that Highway Safety “is no longer good law.”

The 6th Circuit also points out that if OEPA were found in “violation” of a CAA emission limitation, it would be subject to penalties of up to $25,000 a day as well as possible criminal violation because intent is present. “We doubt that the CAA should be read to authorize the head of the federal EPA to impose those penalties against the head of the Ohio EPA,” said the 6th Circuit. In addition, the 6th Circuit again referred to Bennett, in which the Supreme Court stated that it was aware of no precedent in which a “violation” was interpreted in a way to apply to those who administer, as opposed to those who are regulated by, a substantive law. The 6th Circuit majority reversed the judgment of the district court and remanded the case with instructions to dismiss the complaint.

The 6th Circuit’s opinion in Sierra Club v. Korleski is at http://www.ca6.uscourts.gov/opinions.pdf/12a0156p-06.pdf.