A Franklin County judge blocked last week a state law that eliminated Ohioans’ special legal powers to sue polluting neighbors like steel or other industrial plants that spit smoke, ash or other fumes into the sky.
This marks the second time in a short few years that environmental interests have managed to squash, at least temporarily, an effort to kill the air nuisance rule, which has been on the books in Ohio for more than 50 years.
The ruling last week from Franklin County Common Pleas Judge Julie Lynch states that lawmakers’ directive to state officials to repeal the air nuisance rule, which was slipped into the state budget as an 11th hour amendment, violated a provision of the state constitution that says legislation can span only a single subject.
“The Air Pollution Amendment has nothing to do with appropriations or state operations. Therefore, it violates the Constitution’s one-subject rule,” she said.
The air nuisance rule is fairly simple. It says that the emission or escape of smoke, ash, dust, grime, acid, fumes, gas, vapors or others that endanger health, safety or welfare of the public or property is an unlawful nuisance. Since 1974 the rule has been a part of Ohio’s comprehensive plan to comply with the federal Clean Air Act, the bedrock law protecting ambient air in the U.S.
Among the plaintiffs is a Cincinnati-area woman named Donna Ballinger, who has used the air nuisance rule to go after a neighboring, 2,800-acre steel plant now owned by Cleveland Cliffs in the Butler and Warren county area. Both the state and private citizens have used the law in the past as well, including one resident who won a $1.3 million settlement from a Dayton-area nuclear waste disposal company.
Removing the rule blocks plaintiffs from suing in federal court, and some of them argued that the new rules narrow, if not close, the door on state lawsuits as well.
Lynch’s ruling also killed off a related provision that prohibited the Ohio Environmental Protection Agency from considering data from community air monitoring devices to support the issuance of a fine or penalty. Those devices are privately owned sensors that some people deploy when they feel officials don’t believe their complaints.
A spokesman for the Ohio Attorney General’s office said they are reviewing the ruling and determining next steps. He didn’t answer whether the state plans to appeal the decision.
Environmental organizations like the Ohio Environmental Council and Case Western Reserve University’s Environmental Law Clinic that participated in the lawsuit hailed the ruling as a victory.
“The repeal of the Air Nuisance Rule has never been popular nor justified, and the State of Ohio’s own records show it’s a critical tool the public and state agencies use to hold big polluters accountable,” said Neil Waggoner, the midwest Beyond Coal campaign manager for the Sierra Club.
“The Court’s ruling is clear, and the State of Ohio should move expeditiously to end the current repeal effort and should not take any further action to undermine the rule again.”
Steel industry, GOP have targeted rule in the past
In 2019, SunCoke, which makes coke used in the steelmaking process and has been repeatedly accused of air emissions violations in Ohio, hired a law firm that lobbied the U.S. EPA to remove the air nuisance rule from Ohio’s Clean Air Act plan.
Most such changes in administrative law require a fairly robust and transparent process. But as the company argued, and the EPA under President Donald Trump agreed, the decision to create the law in the first place was referred to as a technical “error,” which freed it up for a swift change.
Ballinger and a suite of different environmental advocacy organizations sued to stop the EPA. A mix of drawn out legal pressure and the change in presidential administration eventually led to the rule’s reinstatement in February 2025.
Around that time, lawmakers stepped in on the issue – drawing support from SunCoke, Cleveland Cliffs and the Chamber of Commerce – as they crafted the state budget.
Senators effectively neutered the rule by requiring the Ohio EPA to remove it from Ohio’s Clean Air Act plan. They did so via a late-breaking amendment passed just before the legislation passed. Senate Finance Chairman Jerry Cirino, a Kirtland Republican, has declined to say which senator proposed it.
___
This story was originally published by Signal Ohio and distributed through a partnership with The Associated Press.
Topics Legislation Ohio