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District Court Finds State Cannot Be Sued Under CAA Section 304 for Failure to Enforce a Standard

In a July 29, 2009 decision, the U.S. District Court for the Southern District of Ohio ruled that the citizen suit provisions in CAA Section 304 do not allow suits against a state agency for failure to enforce emission standards (Sierra Club v. Korleski, No. 2:08-cv-865 [S.D. Ohio July 29, 2009]). According to the court, only the U.S. EPA can be sued under Section 304 for failure to enforce an emission standard. A state agency can only be sued under the CAA citizen suit provisions if the agency is itself an emission source that violates an emission standard.

In the July 29, 2009 decision, the federal district court acknowledged that other courts have interpreted the CAA provision at issue as allowing suits against state and local governments for failure to enforce a state implementation plan (SIP). Nonetheless, the court's reading of the statute lead it to conclude that a citizen suit is authorized against the state only as a polluter. According to the court, the statute does not authorize a suit against the state as a regulator who fails to enforce the Act.

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