"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.