On May 25, 2012, the Sixth Circuit rendered its decision in Sierra Club v. Korleski, No. 10-3269 (6^th Cir. May 25, 2012), holding that there is no private right of action under Section 7604 of the  Clean Air Act (“CAA”), 42 U.S.C. § 7604, to compel a state to enforce its own State Implementation Plan (“SIP”) of the national air quality standards.  In doing so, it effectively overruled its own precedent, relying on an intervening Supreme Court decision which found no similar private right of action under the Endangered Species Act (“ESA”).

The issue in Korleski was Ohio’s decision to waive the requirement that new source air polluters producing less than 10 tons of emissions per year utilize the Best Available Technology (“BAT”), notwithstanding the fact that Ohio’s SIP required all sources to utilize BAT.  Although the CAA provides the EPA with a variety of options to sanction a state that fails to enforce its SIP, the EPA chose not to utilize them.  As a result, the Sierra Club took up the banner and sought to compel Ohio to require even small emitters to use BAT. 

The CAA allows citizens to bring suit “against any person . . . who is alleged to have violated (if there is evidence that the alleged violation has been repeated) or to be in violation of  . . . an emission standard or limitation under this chapter.”  42 U.S.C. § 7604(a)(1).  The Sierra Club argued that the SIP itself constituted an “emission standard or limitation” and that Ohio’s non-enforcement constituted a “violation,” thus giving it standing to bring a private suit against the state.  Ohio claimed that the cited provision was intended to allow a private right of action to be pursued only against a polluter in violation of the SIP or a permit issued to it, not to a state agency’s regulatory actions.   

The lower court allowed the Sierra Club’s suit to proceed and granted it partial summary judgment.  It found, first, that the SIP was an “emission standard” and that the state’s failure to enforce the SIP was a “violation.”  The district court’s decision was, however, a reluctant one, as it felt compelled by the Sixth Circuit’s decision in United States v. Ohio Department of Highway Safety, 635 F.2d 1195 (6^thCir. 1980), which held that a “violation” of the CAA could include the state’s refusal to withhold vehicle registrations from vehicles that did not pass emission inspections.

But the passage of 22 years had changed the Sixth Circuit’s view.  While it assumed, without deciding, that the SIP could be an “emissions standard,” it held that Ohio’s failure to enforce it was not a “violation.”  In doing so, the Circuit Court relied primarily on Barnett v. Spear, 520 U.S. 154 (1997), in which the Supreme Court held that the virtually identical language in the ESA did not give rise to a private right of action against the Secretary of the Interior for his failure to “use the best scientific and commercial data available” in operating the Klamath Irrigation Project.  As in Barnett, the Sixth Circuit found that the CAA’s statutory scheme, as a whole, would be frustrated by allowing private party suits to enforce regulatory actions.  In particular, to allow the Sierra Club to proceed would be to permit a private party to circumvent the enforcement role of the EPA and the various mechanisms granted to it to compel states’ compliance.  And even the sole dissenting judge in Korleskiappeared to agree, praising the majority opinion for its “nuanced and thoughtful writing” of “an opinion which I likely would join” but for the precedent set byHighway Safety.

Share | Email| Print| Comments|  Topics: Air, Clean Air Act, Private Right of Action, Procedure, Sixth Circuit