CLEVELAND, Ohio – Environmental advocates claim the Ohio legislature is illegally denying citizens the ability to protect themselves from air pollution.

In a lawsuit filed in Franklin County Common Pleas Court, the Ohio Environmental Council, Sierra Club and others claim state lawmakers violated the Ohio Constitution when they inserted certain provisions in the state budget this summer.

The provisions not only nullified the state’s Air Nuisance Rule, but they disallowed the use of community-acquired air monitoring data as evidence when going after polluters in court or in seeking fines and penalties through regulatory proceedings.

The language in the budget is unconstitutional because it violates the one-subject rule that requires legislation to be limited to a single subject matter, according to the suit.

The provisions have “nothing to do with the budgetary needs of the state of Ohio,” said Miranda Leppla, director of the Case Western University Environmental Law Clinic and an attorney the Ohio Environmental Council and Sierra Club.

Rolling back the Air Nuisance Rule has faced strong opposition over the years, which could help explain why lawmakers inserted the provisions in the budget bill without any public debate, said Neil Waggoner, manager of the Midwest Beyond Coal campaign for the Sierra Club, in a release announcing the suit.

“The legislature’s action was not just a violation of the single subject rule; it’s a violation of the public trust and seeks to further violate our rights to take action to protect our communities from polluters,” he stated.

Historically, the courts have been lax when it comes to enforcing the single subject rule, and even though they have tried to apply it more faithfully in recent years, the bar plaintiffs much reach to succeed is high.

At the same time, Leppla said, there are plenty of incidents where items stuffed into a budget bill have been found to be in violation of the single subject rule and forced to be removed, Leppla said. “And that’s our request here.”

The provisions in the budget bill call for the Ohio EPA to repeal the Air Nuisance Rule contained in the state’s Clean Air Act State Implementation Plan. The rule “provided an enforcement mechanism for Ohioans to hold polluters accountable for their nuisance pollution impacting fenceline communities,” according to the Ohio Environmental Council.

Fenceline communities are those directly adjacent to a polluter, Leppla said.

The bill’s language also prevents the Ohio EPA from relying on air quality data collected from monitors installed by members of a community.

The prohibition on community air monitors means data collection in some instances may not happen because monitors that would be deemed acceptable “would cost tens of thousands of dollars and require significant infrastructure and trained personnel to operate, making them inaccessible to everyday persons,” the lawsuit states.

The lawsuit cites two members of the Ohio Environmental Council who live in Granville and worked with Ohio State University and Google on a project to install 16 air pollution monitors at a cost of $7,000. Had they been forced to use EPA-grade monitors, the cost would have been $50,000.

The two OEC members “specifically installed these monitors to gather baseline and continuous air quality data to understand what impacts the new industries will have on their community’s air quality and pollution levels, with the intention that this data could then be used in enforcement if these industrial developments are found to negatively affect their community’s air quality,” the lawsuit states.

The lawsuit also references three women in Youngstown who use a type of air monitor called PurpleAir to gauge pollution levels in their community for potential use in enforcement proceedings against local industries. PurpleAir monitors are among various brands that studies show are comparable in quality to those provided by the EPA, Leppla said.

One of the Youngstown individuals is particularly concerned because the nearest Ohio EPA monitor to her community is three miles away at Youngstown State University.

It only detects certain pollutants, including PM 2.5, which is fine particulate matter; PM 10, which is more coarse particulate matter; ozone and sulfur dioxide. Not included are measurements for potentially dangerous carbon monoxide, nitrogen dioxide, lead and other metals, and volatile organic compounds.

The Sierra Club joined the suit on behalf of its members, including individuals from Middletown and Cincinnati.

A Middletown resident several years ago relied on the Air Nuisance Rule to address air pollution concerns, according to the suit. She and the Sierra Club “sent a notice of intent to file a Clean Air Act citizen suit against the iron and steel plant near her home for violations, including violations of the ANR,” the suit states. “The plant entered into a consent decree with the State of Ohio as a result.”

After conditions didn’t improve, a second letter resulted in a second order by the Ohio EPA, but still the problems have not been resolved, according to the suit.

In 2020, during the first Trump administration, the U.S. EPA directed Ohio to remove the Air Nuisance Rule from its State Implementation Plan, but a lawsuit managed to have it reinstated in February of this year. Now, through the action of Ohio’s Republican legislature, it’s been removed once again.