Ohio’s new budget revokes a rule that gives neighbors of industrial polluters a legal pathway to sue them for emissions of smoke, ash, grime and other airborne outflows that endanger public health and safety.
The rule was not among the 67 items Gov. Mike DeWine vetoed within the state budget late Monday evening, meaning the change will go into effect in 90 days.
Since 1974, Ohio has included an “air nuisance rule” as part of its implementation plan to comply with the federal Clean Air Act, the bedrock environmental law protecting ambient air quality in the United States.
The rule declares air pollution to be a public nuisance. It prohibits facilities from causing such a nuisance and gives Ohioans living on the fenceline of dirtier operations like steelmaking factories or coal-fired power plants legal power to hold owners accountable for airborne messes they cause.
For example, a Middletown woman recently invoked the rule against a former AK Steel facility after she said deposits from its plant rained “clouds and plumes” of ashy soot down on her home, car, yard and more. A Dayton woman used the law to force a $1.3 million settlement from a nuclear waste disposal company in 2007.
Different Ohio governments have used the law to target polluters as well. Ohio Attorney General Dave Yost’s office used it in 2021 against an iron and steel manufacturer for its lead emissions. And the City of Ashtabula used it in 2008 against Norfolk Southern after, among other air and water disturbances, water runoff from its coal piles flowed into Lake Erie.
Ohio’s budget directs the Ohio Environmental Protection Agency to remove the air nuisance rule from the state’s Clean Air Act implementation plan.
Steel industry benefits from rule change
The legal change is of particular importance to the steel industry – which has a large footprint in Ohio and is a major emitter of air pollutants including nitrogen oxides, sulfur dioxide and fine particulate matter. Rates of cancer due to air toxics exposure are 12% higher near steel plants than the national rate, according to an analysis of federal data by Industrious Labs, while residents living near coke manufacturing plants have cancer rates 26% higher than national levels from air toxics exposure.
Ohio has six steel and coke plants, more than any other state, all owned by either Cleveland-Cliffs or SunCoke Energy. All of them are among the top emitters in the state of either nitrogen oxides, sulfur dioxide, fine particulate matter, carbon monoxide or lead, according to Industrious Labs.
The repeal campaign has drawn heavy industry backing in recent years, including legislative, administrative and legal efforts to kill it outright.
Ohio Senate won’t say who championed killing the law
The state Senate included its repeal in its 5,500-page budget, but a Senate spokesman declined to say which Senator offered the amendment. Senate Finance Chair Jerry Cirino said in an interview he didn’t remember who proposed the idea and directed a reporter toward his aide. Signal Ohio contacted several Republican members of the Senate Energy committee – three said they didn’t know the origin of the amendment, and the rest didn’t respond.
The repeal of the air nuisance rule traces back to a political effort launched in 2019 by SunCoke, which makes coke, a product derived from coal that’s used to make steel.
At first, SunCoke hired lawyers with the firm Perkins Coie, who quietly and successfully lobbied the U.S. Environmental Protection Agency to repeal the air nuisance rule from its state implementation plan on the grounds that it was only included in the first place in error. The lobbyists sent letters to the EPA, which later surfaced in court filings, apparently seeding the alleged error theory.
However, federal courts sided with environmental legal advocates and struck down the repeal effort. Judges with the 6th Circuit Court of Appeals sided with the environmentalists and ordered the EPA to reconsider, heavily emphasizing the fact that Ohio amended the air nuisance law in both 1984 and 2015, which undermines the idea it was filed by the state on accident.
Ohio’s U.S. senators lead effort to repeal nuisance law
The EPA reinstated the rule after a court remand, which has prompted congressional intervention. In February, both Ohio’s Republican U.S. Senators, Bernie Moreno and Jon Husted, plus Ohio U.S. Reps. Michael Rulli and Troy Balderson, all mounted a federal push to repeal the rule via federal legislation.
They framed President Biden’s reimplementation of the 50-year-old rule as wholly unrelated to the preservation of clean air and instead a means to push “frivolous” lawsuits.
“We cannot allow attorneys and environmental advocacy groups to dictate federal policy at the expense of Ohio’s economy and workforce,” Rulli said in a statement.
Various industry groups, including the Chamber of Commerce, the Ohio Manufacturers Association, and the Ohio Chemistry Technology Council, have all backed the repeal effort. They’ve argued that victims of pollution from industrial neighbors can still bring different kinds of lawsuits in state (as opposed to federal) court.
David Altman, an environmental attorney from Cincinnati, has relied on the air nuisance rule over decades litigating in Ohio and helped win in the federal lawsuit to protect its repeal. He couldn’t be reached for a phone call, but, in a voicemail, he likened the State of Ohio’s environmental laws to an accident he witnessed in which a man pinned between two cars was mangled beyond recognition.
“It’s unrecognizable,” he said. “But you know, I’ve only been doing this for 51 years.”
