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As of Sept. 30, Ohio lawmakers eliminated a key legal tool used to rein in air pollution from power plants and industrial sites. Now, advocates are suing to restore that right.
For decades, environmental groups in Ohio and elsewhere have used air nuisance rules in state plans as a catchall way to enforce the federal Clean Air Act. Ohio’s version let people take legal action against companies whose emissions “endanger the health, safety or welfare of the public, or cause unreasonable injury or damage to property.” The rule dates back more than 50 years.
Environmental groups have used air nuisance rules to file or threaten lawsuits against coal-burning power plants, iron and steel facilities, coke plants, and other industrial operations, which emit not only planet-warming greenhouse gases but also harmful pollutants like nitrogen dioxide, sulfur dioxide, and lead.
Defendants in cases brought under Ohio’s version of the rule have included Suncoke Energy, AK Steel–Middletown Works, Georgia-Pacific Corp., and Phthalchem. Consent decrees and settlements have produced orders or agreements to stop alleged nuisances, clean up waste, and expand monitoring.
But a last-minute addition to the state’s 3,156-page budget bill, House Bill 96, told the Ohio Environmental Protection Agency (EPA) to cut that protection out of the state’s Clean Air Act plan.
“The air nuisance rule is the tool that Ohioans have to hold polluters accountable,” said Neil Waggoner, the Sierra Club’s Beyond Coal campaign manager for the Midwest. “This is the state government saying … we’re going to take this away from you in the most secretive fashion possible.”
The Sierra Club is a plaintiff in the lawsuit, along with the Ohio Environmental Council, SOBE Concerned Citizens, and the Freshwater Accountability Project. The fifth plaintiff, Donna Ballinger, is a Middletown resident who lives close to iron and steel operations, which she claims cause nuisance conditions. An August report by the Environmental Integrity Project documented likely air quality problems in that area.
Experts warn that eliminating the right to file air nuisance complaints weakens Ohio’s enforcement of pollution measures at an already perilous moment for environmental regulation.
For months, the Trump administration has been rolling back federal pollution standards and making huge personnel cuts to the staff charged with enforcing the remaining rules and permits. The Ohio EPA has authority to enforce the Clean Air Act but doesn’t always pursue alleged violations.
“Both at the federal and state level, we’re seeing less enforcement,” said Miranda Leppla, who heads Case Western Reserve University’s Environmental Law Clinic and represents the Ohio Environmental Council and the Sierra Club in the lawsuit. “If Ohioans don’t have the ability to bring these enforcement actions on their own through the air nuisance rule, there’s a very serious concern that air quality will continue to degrade and Ohioans’ health will get worse.”
Echoing a recent law in Louisiana, HB 96 also blocks the Ohio EPA from acting on data that groups may collect through community air-monitoring efforts. Such data can fill important gaps and alert communities and enforcement officials to problems that may not be detected by EPA monitors miles away.
Ohio’s limits on using the data will particularly harm fence-line communities, Leppla said.
“At a time when Ohio is seeing renewed industrial building, including new facilities like data centers, as well as a greater federal push for more fossil fuels, it is more important than ever that Ohioans preserve their right to both collect air pollution data themselves and use that data to file suits against harmful air nuisances,” said Chris Tavenor, general counsel for the Ohio Environmental Council.
The complaint, filed on Oct. 24 in the Franklin County Court of Common Pleas, asserts that lawmakers violated the single-subject rule in the Ohio Constitution when they tacked the air pollution provisions onto the massive budget bill.
“This is fundamentally unrelated to the main purpose of the biennial budget,” Waggoner said. “And it was stuck in here in an intentional way so that folks would not have an opportunity to see it, talk about it, or debate its merits.”
The Sierra Club, Ohio Environmental Council, and other groups raised a similar argument two years ago after eleventh-hour changes to a bill about poultry included a new definition of natural gas as “green energy.” That case, also at the Franklin County Court of Common Pleas, has been briefed, and parties are waiting for Judge Kimberly Cocroft to issue her ruling.
A 2019 decision in Paulding County, Ohio, rejected a challenge to the late amendment in the 2014 budget bill that tripled property-line setbacks for turbines on wind farms. That case wasn’t appealed and would not bind the court in Franklin County.
Despite the similarities, the new lawsuit is different because the ban goes beyond how state agencies operate, Leppla said. “The air nuisance rule was created specifically to allow Ohioans who are suffering from noxious air pollution and nuisances to protect themselves when the government does not act.”
HB 96 is not the first attempt to take away Ohioans’ right to bring air nuisance claims. In 2020, the first Trump administration’s U.S. Environmental Protection Agency removed Ohio’s air nuisance rule, Waggoner noted.
The Ohio Environmental Council, the Sierra Club, Ballinger, and another Sierra Club member mounted a successful challenge in federal court, but due to delays in agency action it wasn’t until this February that the rule became effective again.
“And now here we are with the Ohio legislature attempting to remove it again, when it had already been found to be illegal to do so,” Leppla said.
To prevent another lapse, the plaintiffs in the new lawsuit have asked Judge Julie Lynch to grant a preliminary injunction against removing the rule while the case proceeds.
As defendants, the State of Ohio and the director of Ohio EPA have 28 days to file responses after the complaint was served. What happens next will depend on those filings and the judge’s rulings on any motions.
The Ohio attorney general’s office did not respond to Canary Media’s request for comment. Ohio EPA spokesperson Bryant Somerville said the agency is reviewing the lawsuit but had no further response because the matter is in litigation.
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