Earthjustice called a recent federal appeals court decision that rejected designation of metropolitan Cincinnati as a clean air region "an important step in ensuring the citizens of Cincinnati have healthy air to breathe." Reversing a decision by the US Environmental Protection Agency, the court ruled that Cincinnati did not qualify for the clean air label because it lacked legally required controls on industry-caused air pollution. On behalf of two Cincinnati residents and the Ohio chapter of the Sierra Club, Earthjustice challenged the earlier EPA decision because the plaintiffs charged that decision violated the Clean Air Act.
"This is a victory not only for the people in and around Cincinnati, but also for the citizens of Ohio and for folks throughout the northeastern United States," said David Baron, lead attorney for Earthjustice. "The Court agreed that cities like Cincinnati must adopt the anti-pollution rules required by federal law before they can qualify for clean-air status. We hope that other cities will notice this decision, and do what's right for clean air."
Cincinnati has suffered from recurrent violations of federal health standards for ozone for several decades. More than two decades ago, EPA designated the metropolitan area as an ozone 'nonattainment' area, meaning that it did not meet the basic requirements of a clean air city. This nonattainment designation triggered pollution control requirements under the Clean Air Act. That label remained in place until last year, when EPA redesignated the area as 'attainment' – a move that had the effect of relaxing clean air requirements. Earthjustice's lawsuit challenged that action, arguing that the area still had an air pollution problem and did not meet all of the legal requirements for redesignation. These requirements included air pollution controls for chemical companies, furniture manufacturers, and aviation and aerospace industries. The court agreed, holding that EPA could not lift the nonattainment label until the state adopted all of these controls.
"Congress required these measures to protect public health," said Baron. "EPA cannot take shortcuts when it comes to ensuring the purity of the air we breathe."
Ozone – or smog – is a severe lung irritant that not only can affect healthy adults, but it poses a special risk to children, elderly, and those already sick. Ozone can cause shortness of breath, chest pains, increased risk of infection, and permanent loss of lung function. The American Lung Association estimates that in the Cincinnati area, more than 25,000 children and 46,000 adults have asthma. More than 20,000 residents have emphysema, and more than 60,000 have chronic bronchitis. Last summer, the Cincinnati area had nine smog alerts, and numerous days with ozone at levels that threaten public health.
The court's decision means that the Cincinnati area will remain subject to the more stringent air pollution control regimen applicable to nonattainment areas. That means tougher limits on new industrial pollution and restrictions on rolling back existing controls.
"We're very pleased the Court reversed EPA's action," said Glen Brand, a Sierra Club representative in Cincinnati. "Now is not the time for the state to be rolling back public health protections."
The US Court of Appeals for the Sixth Circuit in Cincinnati handed down the decision on September 11.
Earthjustice is the premier nonprofit environmental law organization. We wield the power of law and the strength of partnership to protect people’s health, to preserve magnificent places and wildlife, to advance clean energy, and to combat climate change. We are here because the earth needs a good lawyer.