02/13/2023

Sixth Circuit Remands Nuisance Rule Back to EPA for Further Consideration

Last week, the Sixth Circuit Court of Appeals granted the request of the U.S. Environmental Protection Agency (EPA) regarding the nuisance rule and remanded the matter back to EPA for further consideration. Following the removal of the nuisance rule from the State Implementation Plan (SIP) in 2020, David Altman, the Sierra Club, and Ohio Environmental Council filed an appeal in the Sixth Circuit to challenge the SIP correction that removed the rule.

Shortly thereafter, Ohio Attorney General David Yost moved on behalf of the State of Ohio to intervene in the appeal in support of EPA’s removal of the nuisance rule from the Ohio SIP. OCTC along with the Ohio Chamber of Commerce and the Ohio Manufacturers’ Association, filed a motion to intervene and ultimately were granted permission to file an amincus brief in support of the removal of the nuisance rule.

In last week's decision, the court did not grant the environmental petitioners’ request to vacate EPA’s rulemaking pending reconsideration, meaning they did not order EPA to put the nuisance rule back into Ohio’s SIP while it reviews its prior action. The court did not put a specific deadline for EPA to complete its review, though it noted that EPA had said its review would take about a year. 

OCTC has been advocating removal of the nuisance rule from the Ohio SIP since the late 1990s because it does not relate to attainment, implementation, maintenance, or enforcement of the National Ambient Air Quality Standards (NAAQS), and it exposes Ohio companies to federal citizen suits over amorphous nuisance claims where plaintiffs’ lawyers can be awarded attorneys’ fees even if they lose. Other states in Region 5 never had a nuisance rule in their SIPs, or had their nuisance rule removed from their SIPs. OCTC will remain vigilant in its opposition to the efforts of groups to have the nuisance rule reinserted into Ohio’s federally approved plan.