May 25: In the U.S. Court of Appeals, Sixth Circuit, Case No. 10-3269. Appealed from the Southern District of Ohio at Columbus. In this important split decision, the Appeals Court overturns a district court decision regarding the rights of citizens to sue to force a state to enforce the Clean Air Act. The majority summarizes the case saying, "The State of Ohio, pursuant to legislation passed by its General Assembly and signed by its Governor, has chosen no longer to administer a particular federal regulation promulgated under the Clean Air Act. The plaintiffs brought this lawsuit to compel the State to administer the federal regulation. As authority for the suit, the plaintiffs invoke the Clean Air Act's citizen-suit provision.
"The State contends that the suit is not authorized by that provision. The district court agreed with the State's contention, but felt bound to rule otherwise in light of a case decided in 1980 by this court. The district court therefore entered an injunction expressly ordering the State to administer the federal rule. We conclude, based upon intervening Supreme Court precedent and the text and structure of the Clean Air Act itself, that the Act's citizen-suit provision does not authorize this lawsuit. We therefore reverse the district court's judgment and remand with instructions to dismiss the complaint."
The majority recounts that, "If a State fails to propose a SIP [state implementation plan], or proposes one that the EPA determines will not meet the Air Quality Standards, then the EPA may impose its own federal implementation plan for the State. Id. § 7410(c). In contrast, if the EPA approves a State's proposal, then the SIP is added to the Code of Federal Regulations and becomes federal law. At that point, the State's ability to modify the SIP is limited. . . The Act contemplates that each State will take primary responsibility for enforcing its SIP. If a State fails to enforce the SIP's requirements, the statute affords the EPA itself various means of enforcing them. First, the EPA may take action against violators directly. . . Second, the EPA can take over administration of the State's SIP. . . Third, the EPA can sanction the State. . ."
Then, the majority says, "To a limited extent, the Act also contemplates private enforcement of its provisions. Specifically, the Act includes a citizen-suit provision that allows 'any person' to file suit against 'any person . . . who is alleged to have violated . . . or to be in violation of . . . an emission standard or limitation under this chapter[.]'"
In 2006, the Ohio General Assembly passed legislation that allows the Director to issue permits to smaller emission sources -- those producing less than 10 tons per year of emissions ("small emitters") -- without first determining whether those sources will employ "best available technology," or BAT.Ohio's Governor signed this legislation and it took effect on December 1, 2006. While the provision is contrary to Ohio's SIP and EPA rejected the proposed amendment on procedural grounds, and thus the BAT requirement remains part of the SIP; the majority indicates that "EPA has chosen not to enforce the requirement itself, even though the Act empowers it to do so. . . Nor has the EPA chosen to use any of the various means at its disposal under the Act to induce Ohio to enforce the BAT requirement against small emitters.
In September 2008, the Sierra Club, joined by three Ohio residents, filed a citizen suit against the Director of Ohio's EPA. The complaint alleged, among other things, that the Director's refusal to make a BAT determination before issuing permits to small emitters constituted a "violation of [] an emission standard or limitation" within the meaning of the Clean Air Act's citizen-suit provision.
In large part, the majority concludes: ". . .even the plaintiffs themselves have a remedy here. If they want to sue a regulatory agency, they can do so. They have simply chosen the wrong one. The agency that the Act authorizes them to sue is the federal EPA. The judgment of the district court is reversed, and the case remanded with instructions to dismiss the complaint."
The dissent justice argues that the majority has violated a basic principle of the Appeals Court in that it "overrules a published opinion of a previous panel." The previous case cited -- United States v. Ohio Department of Highway Safety, 635 F.2d 1195, 1204 (6th Cir. 1980). Even the majority indicates that, "The district court adhered to its view that the most natural reading of § 7604(a)(1) would not authorize the plaintiff's suit, but thought that the reasoning of Highway Safety, if not its specific holding, compelled the opposite conclusion."
The dissenting justice says, "The majority argues that because Highway Safety discussed a different part of the CAA, that opinion's definition of 'violation' is 'technically not binding on us here.' However, the majority fails to point to any legislative history that rebuts the presumption that words in the same statute have the same meaning. Instead, the majority seeks to distance itself from Highway Safety's holding by substituting its own interpretation of the CAA's legislative intent, and by drawing inferences of such intent from the overall scheme of the CAA. Importantly for our purposes, such arguments were equally applicable, and made and rejected, in Highway Safety. The majority opinion in Highway Safety examined the enforcement scheme of the CAA to determine if the relevant portion of the statute preferred a unimodal enforcement approach, and concluded that it did not. 635 F.2d 1195, 1201-04 (6th Cir. 1980).
The dissent concludes, "Sixth Circuit Rule 206(c) is unequivocal: Reported panel opinions are binding on subsequent panels. Thus, no subsequent panel overrules a published opinion of a previous panel. Court en banc consideration [or intervening Supreme Court authority] is required to overrule a published opinion of the court. . . It 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."
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