Sierra Club v. Korleski

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0156p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

X
-
SIERRA CLUB; MICHAEL SINCLAIR; THERESA

Plaintiffs-Appellees, -
COLE; JOSEPHINE COLE,

-
-
No. 10-3269
v.
,
>

-
-
CHRISTOPHER KORLESKI, Director, Ohio

Defendant-Appellant. -
Environmental Protection Agency,

N

Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 08-00865—Mark R. Abel, Magistrate Judge.

Argued: July 20, 2011

Decided and Filed: May 25, 2012

Before: SILER, COLE, and KETHLEDGE, Circuit Judges.

_________________

COUNSEL
ARGUED: Alexandra T. Schimmer, OFFICE OF THE OHIO ATTORNEY
GENERAL, Columbus, Ohio, for Appellant. D. David Altman, D. DAVID ALTMAN
CO., L.P.A., Cincinnati, Ohio, for Appellees. Peter J. McVeigh, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Amici Curiae. ON BRIEF:
Alexandra T. Schimmer, David M. Lieberman, Gregg H. Bachmann, Thaddeus H.
Driscoll, Samuel C. Peterson, OFFICE OF THE OHIO ATTORNEY GENERAL,
Columbus, Ohio, for Appellant. D. David Altman, Justin D. Newman, D. DAVID
ALTMAN CO., L.P.A., Cincinnati, Ohio, for Appellees. Peter J. McVeigh, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., David E. Northrop, Robert
L. Brubaker, PORTER, WRIGHT, MORRIS & ARTHUR LLP, Columbus, Ohio, for
Amici Curiae.
KETHLEDGE, J., delivered the opinion of the court, in which SILER, J., joined.
COLE, J. (pp. 19–21), delivered a separate dissenting opinion.

1
No. 10-3269 Sierra Club, et al. v. Korleski Page 2

_________________

OPINION
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KETHLEDGE, Circuit Judge. The State of Ohio, pursuant to legislation passed
by its General Assembly and signed by its Governor, has chosen no longer to administer
a particular federal regulation promulgated under the Clean Air Act. The plaintiffs
brought this lawsuit to compel the State to administer the federal regulation. As
authority for the suit, the plaintiffs invoke the Clean Air Act’s citizen-suit provision.
The State contends that the suit is not authorized by that provision. The district court
agreed with the State’s contention, but felt bound to rule otherwise in light of a case
decided in 1980 by this court. The district court therefore entered an injunction expressly
ordering the State to administer the federal rule. We conclude, based upon intervening
Supreme Court precedent and the text and structure of the Clean Air Act itself, that the
Act’s citizen-suit provision does not authorize this lawsuit. We therefore reverse the
district court’s judgment and remand with instructions to dismiss the complaint.

I.

A.

“The federal Clean Air Act is a model of cooperative federalism.” Ellis v.
Gallatin Steel Co., 390 F.3d 461, 467 (6th Cir. 2004). The Act requires the EPA to
establish National Ambient Air Quality Standards for certain types of air pollutants.
42 U.S.C. § 7409. Although the Air Quality Standards are set federally, the “primary
responsibility for assuring” they are met lies with the States. Id. § 7407(a). To that end,
the Act directs each State to propose a state implementation plan (“SIP”) that
“specif[ies] the manner in which national . . . air quality standards will be achieved and
maintained” in that State. Id. A State has flexibility to tailor its SIP to local
circumstances, so long as the SIP includes certain requirements for permits,
enforcement, emissions monitoring, and the like. Id. § 7410(a)(2).
No. 10-3269 Sierra Club, et al. v. Korleski Page 3

If a State fails to propose a SIP, or proposes one that the EPA determines will not
meet the Air Quality Standards, then the EPA may impose its own federal
implementation plan for the State. Id. § 7410(c). In contrast, if the EPA approves a
State’s proposal, then the SIP is added to the Code of Federal Regulations and becomes
federal law. At that point, the State’s ability to modify the SIP is limited. For example,
if a State wants to amend its SIP, it must submit the proposed amendments to the EPA
for approval, id. § 7410(k)(3); and the State may not adopt “any emission standard or
limitation which is less stringent than” those in the SIP. Id. § 7416.

The Act contemplates that each State will take primary responsibility for
enforcing its SIP. If a State fails to enforce the SIP’s requirements, the statute affords
the EPA itself various means of enforcing them. First, the EPA may take action against
violators directly: When “any person has violated or is in violation of any requirement
or prohibition of an applicable implementation plan or permit,” the EPA’s Administrator
may “issue an order requiring such person to comply,” “issue an administrative penalty
order,” or “bring a civil action” to require compliance. Id. § 7413(a)(1). Second, the
EPA can take over administration of the State’s SIP: When “violations of an applicable
implementation plan or an approved permit program . . . are so widespread that such
violations appear to result from a failure of the State in which the plan or permit program
applies to enforce the plan or permit program effectively,” the Administrator may
“enforce any requirement or prohibition of such plan or permit program.” Id.
§ 7413(a)(2). Third, the EPA can sanction the State: If the EPA’s Administrator
determines that a State has failed to implement “any requirement of an approved plan”
(among other “State failure[s]”), the Administrator “shall” impose sanctions upon the
State, which may include withdrawal of the State’s federal highway funds. Id.
§ 7509(a)(4), (b)(1)–(2). Significantly for our purposes, however, the Administrator
cannot impose any of the available sanctions until the State has been given 18 months
to cure the “deficiency[.]” Id. § 7509(a).

To a limited extent, the Act also contemplates private enforcement of its
provisions. Specifically, the Act includes a citizen-suit provision that allows “any
No. 10-3269 Sierra Club, et al. v. Korleski Page 4

person” to file suit against “any person . . . who is alleged to have violated . . . or to be
in violation of . . . an emission standard or limitation under this chapter[.]” Id.
§ 7604(a)(1).

B.

The EPA first approved Ohio’s SIP in 1972. See 40 C.F.R. § 52.1870. The SIP
prohibits “new source” air polluters in Ohio from installing or modifying an emissions
source without first obtaining a permit from the Director of the Ohio EPA. Ohio Admin.
Code § 3745-31-02(A); 40 C.F.R. § 52.1870(c)(127)(i). Before the Director issues the
permit, however, the SIP requires the Director to determine that the new or modified
source will employ the “best available technology,” or “BAT,” to limit its emissions.
Ohio Admin. Code § 3745-31-05(A)(3); 40 C.F.R. § 52.1870(c)(127)(i).

The Director enforced the BAT requirement for several decades. Then, in 2006,
the Ohio General Assembly passed legislation that allows the Director to issue permits
to smaller emission sources—those producing less than 10 tons per year of emissions
(“small emitters”)—without first determining whether those sources will employ BAT.
Ohio’s Governor signed this legislation. The Ohio EPA amended the Ohio
Administrative Code to reflect the exemptions. These amendments took effect on
December 1, 2006. Since then, the Director has issued permits to small emitters without
determining whether those sources will use BAT. The result is that Ohio no longer
administers the BAT requirement against small emitters.

In June 2008, Ohio sought approval to amend its SIP to eliminate the BAT
requirement with respect to small emitters. The federal EPA rejected the proposed
amendment on procedural grounds, and thus the BAT requirement remains part of the
SIP today. But the federal EPA has chosen not to enforce the requirement itself, even
though the Act empowers it to do so. See 42 U.S.C. § 7413(a). Nor has the EPA chosen
to use any of the various means at its disposal under the Act to induce Ohio to enforce
the BAT requirement against small emitters. See id. § 7509(a), (b).
No. 10-3269 Sierra Club, et al. v. Korleski Page 5

C.

In September 2008, the Sierra Club, joined by three Ohio residents, filed a citizen
suit against the Director of Ohio’s EPA. The complaint alleged, among other things, that
the Director’s refusal to make a BAT determination before issuing permits to small
emitters constituted a “violation of [] an emission standard or limitation” within the
meaning of the Clean Air Act’s citizen-suit provision. 42 U.S.C. § 7604(a)(1).
Eventually the plaintiffs moved for summary judgment on this claim. The district court
denied the motion, holding that § 7604(a)(1) of the Act authorizes citizen suits against
a State only to the extent the State itself emits pollutants in violation of an emissions
standard, rather than against the State in its regulatory capacity.

The Sierra Club moved for reconsideration, citing this court’s decision in United
States v. Ohio Department of Highway Safety, 635 F.2d 1195, 1204 (6th Cir. 1980),
which involved a different but related provision of the Clean Air Act. The district court
adhered to its view that the most natural reading of § 7604(a)(1) would not authorize the
plaintiff’s suit, but thought that the reasoning of Highway Safety, if not its specific
holding, compelled the opposite conclusion. The district court therefore granted the
Sierra Club’s motion for partial summary judgment and ordered Ohio’s EPA “to
implement and enforce” the BAT requirement against all emitters.

This appeal followed.

II.

The issue presented by this appeal is whether the Clean Air Act’s citizen-suit
provision, 42 U.S.C. § 7604, authorizes the plaintiffs to sue the State of Ohio to compel
the State to administer the BAT requirement against small emitters. The relevant
subsection of § 7604 provides:

(a) Authority to bring a civil action; jurisdiction

Except as provided in subsection (b) of this section, any person may
commence a civil action on his own behalf—
No. 10-3269 Sierra Club, et al. v. Korleski Page 6

(1) against any person (including (i) the United States, and
(ii) any other governmental instrumentality or agency to the
extent permitted by the Eleventh Amendment to the Constitution)
who is alleged to have violated (if there is evidence that the
alleged violation has been repeated) or to be in violation of (A)
an emission standard or limitation under this chapter or (B) an
order issued by the Administrator or a State with respect to such
standard or limitation[.]

Id. § 7604(a)(1).

It is undisputed that the State of Ohio, like the federal government, is a “person”
potentially subject to suit under this provision. What is disputed is whether the State is
subject to the particular kind of suit the plaintiffs filed here.

A.

The plaintiffs’ theory is that Ohio’s failure to administer the BAT requirement
with respect to small emitters is itself a “violation of . . . an emission standard or
limitation” as those terms are used in § 7604(a)(1). That theory rests upon the
interpretation of two terms. The first is “emission standard or limitation.” As a matter
of spoken English, one might think that an “emission standard or limitation” is
something that itself limits emissions—such as, in this case, the SIP’s requirement that
a small emitter (say, a gas station) utilize the best available technology to minimize its
emissions. In statutes like this one, however, terms often have meanings more technical
than colloquial.

The plaintiffs and their amicus, the federal EPA, advance a technical meaning
here: In their view, § 7604(f)(4) defines “emission standard or limitation,” for purposes
of § 7604(a), to include any “standard” or “limitation” set forth in a SIP; and they say
that “[t]he SIP requirement at issue here—under which Ohio EPA must determine that
a source of pollution will employ BAT before issuing a permit—establishes a standard
and limitation governing the issuance of permits.” U.S. EPA Br. at 5. Thus, in their
view, the State’s obligation to administer the BAT regime is a standard or limitation for
whose “violation” a private party can file suit under § 7604(a). The State responds that
No. 10-3269 Sierra Club, et al. v. Korleski Page 7

the sentence structure of § 7604(f)(4) makes clear that the provision reaches only
standards or limitations that are set forth in a permit—which would mean the term does
not include the State’s obligation to enforce the BAT requirement, since that obligation
is set forth only in the SIP.

The Seventh Circuit recently read § 7604(f)(4) the same way the plaintiffs do
(albeit in a case brought against a polluter rather than against a State). See McEvoy v.
IEI Barge Servs., Inc., 622 F.3d 671, 678 (7th Cir. 2010). But for now we will only
assume, without deciding, that the plaintiffs’ reading of § 7604(f)(4) is correct.

For there is a second term whose meaning the plaintiffs must establish in order
to bring this lawsuit—namely, “violation” as used in § 7604(a)(1). Specifically, the
plaintiffs must show that the State’s failure to administer the BAT requirement is a
“violation of . . . an emission standard or limitation.” 42 U.S.C. § 7604(a)(1) (emphasis
added). As to this term, the parties have switched sides on the field, with the plaintiffs
advancing a colloquial meaning this time, and the State a more technical one. The
plaintiffs’ meaning is simple enough: if the SIP requires the State to administer the BAT
regime, and the State fails to administer it, then the State has “violated” that requirement.
But the State responds that “violation” as used in §7604(a)(1) is a term of art, which
applies only to regulated entities rather than to the actions or omissions of a regulator
qua regulator.

The State’s argument is based in part upon the Supreme Court’s decision in
Bennett v. Spear, 520 U.S. 154 (1997). There, the Court held that “the term
‘violation[,]’” as used in the citizen-suit provision in the Endangered Species Act, 16
U.S.C. § 1540(g)(1)(A), “does not include the Secretary [of the Interior]’s failure to
perform his duties as administrator of the ESA.” 520 U.S. at 173. The State argues that
we should likewise construe the term “violation” as used in 42 U.S.C. § 7604(a)(1) not
to include the Director’s failure to administer the BAT regime.

As an initial matter, we “‘must be careful not to apply rules under one statute to
a different statute without careful and critical examination.’” Gross v. FBL Fin. Servs.,
No. 10-3269 Sierra Club, et al. v. Korleski Page 8

Inc., 129 S. Ct. 2343, 2349 (2009) (quoting Fed. Express Corp. v. Holowecki, 552 U.S.
389, 393 (2008)). Our task “is not to fashion a sort of judicial string theory, under which
we develop universal principles that harmonize different statutes with different
language.” Hadden v. United States, 661 F.3d 298, 303 (6th Cir. 2011). But “if two
statutes use the same words in related contexts, the caselaw for one statute might be
relevant in construing the other.” Id. So we will give the two statutes a careful and
critical examination here.

The text of the ESA’s citizen-suit provision is virtually identical to that of
§ 7604(a). Indeed, even the United States, arguing as an amicus in support of the
plaintiffs in this case, admits now (and affirmatively argued in Bennett) that the ESA’s
citizen-suit provision was “patterned after” the citizen-suit provision in the Clean Air
Act, i.e., § 7604. Again, § 7604(a)(1) provides in relevant part:

[A]ny person may commence a civil action . . . against any person
. . . who is alleged to have violated . . . or to be in violation of . . . an
emission standard or limitation under this chapter[.]

Similarly, the ESA’s citizen-suit provision provides in relevant part:

[A]ny person may commence a civil suit . . . to enjoin any person
. . . who is alleged to be in violation of any provision of this chapter or
regulation issued under the authority thereof.

16 U.S.C. § 1540(g)(1)(A).

The enabling language of the two provisions is the same: each provision
authorizes “any person” to sue “any person” who is alleged “to be in violation of”
certain provisions of each Act. (The only difference between the two provisions, so far
as this language is concerned, is that the ESA’s provision is more broadly permissive of
citizen suits, since it permits suits based on a “violation” of any provision of that Act,
whereas the Clean Air Act provision here permits suits based on a “violation” only of
an emission standard or limitation.)
No. 10-3269 Sierra Club, et al. v. Korleski Page 9

In Bennett, the Supreme Court held that this language did not permit a citizen suit
against a federal agency for its failure to perform a regulatory duty. Bennett concerned
a determination by the United States Fish and Wildlife Service that the operation of the
Klamath Irrigation Project—“a series of lakes, rivers, dams, and irrigation canals in
northern California and southern Oregon,” 520 U.S. at 158—“was likely to jeopardize
the continued existence of the Lost River and shortnose suckers[,]” both of which are
endangered species. Id. at 159. The Service also found that the maintenance of certain
minimum water levels within the project would “avoid jeopardy” to the suckers. Id.
Certain private parties affected by those water levels thereafter sued the Service’s
Director and the Secretary of the Interior Department (of which the Service is a part)
under the ESA’s citizen-suit provision, 16 U.S.C. § 1540(g). Two of the plaintiffs’
claims were based upon § 1536 of the ESA, which required, among other things, that the
Service “‘use the best scientific and commercial data available’” before reaching a
determination that the suckers were endangered. 520 U.S. at 176 (quoting 16 U.S.C.
§ 1536(a)(2)). The plaintiffs alleged that the Service had made its “jeopardy
determination” without using the best available data, in “violation” of § 1536(a)(2).
(That claim is remarkably similar to the plaintiffs’ claim here that the State has issued
permits without first determining that the permitees will use the “best available
technology” to reduce emissions.) The United States responded essentially as the State
of Ohio does here: “that the Secretary’s conduct in implementing or enforcing the ESA
is not a ‘violation’ of the ESA within the meaning” of the Act’s citizen-suit provision.
520 U.S. at 173. That provision, the government said, “is a means by which private
parties may enforce the substantive provisions of the ESA against regulated parties
. . . but is not an alternative avenue for judicial review of the Secretary’s implementation
of the statute.” Id. (emphasis added).

The Supreme Court agreed: “Viewed in the context of the entire statute,
§ 1540(g)(1)(A)’s reference to any ‘violation’ of the ESA cannot be interpreted to
include the Secretary’s maladministration of the ESA.” 520 U.S. at 174. The Court
cited three principal reasons for its decision. First, the Court said that the plaintiffs’
No. 10-3269 Sierra Club, et al. v. Korleski Page 10

interpretation of § 1540(g)(1)(A) was “simply incompatible with the existence of
§ 1540(g)(1)(C)[.]” 520 U.S. at 173. The latter subsection provides in relevant part:

(g) Citizen suits

(1) . . . any person may commence a civil suit on his own
behalf—
...
(C) against the Secretary where there is an alleged failure
of the Secretary to perform any act or duty under section
1533 of this title which is not discretionary with the
Secretary.

16 U.S.C. § 1540(g)(1)(C).

The Court observed that, by its plain terms, § 1540(g)(1)(C) “authorizes suit
against the Secretary, but only to compel him to perform a nondiscretionary duty under
§ 1533.” 520 U.S. at 173. And the Court reasoned that § 1540(g)(1)(C) “would be
superfluous—and worse still, its careful limitation to § 1533 would be nullified—if
§ 1540(g)(1)(A) permitted suit against the Secretary for any ‘violation’ of the ESA.”
520 U.S. at 173 (emphasis in original). Thus, if the term “violation” as used in
§ 1540(g)(1)(A) were construed to allow suits against regulators qua regulators, the
express limitations upon that kind of suit in § 1540(g)(1)(C) would be meaningless.

The parties dispute the extent to which the same or similar reasoning applies
here. A foundational point is undisputed: The Clean Air Act contains a provision
almost identical to 16 U.S.C. § 1540(g)(1)(C). Specifically, 42 U.S.C. § 7604(a)(2)
provides that “any person may commence a civil action on his own behalf . . . against
the Administrator [of the federal EPA] where there is an alleged failure of the
Administrator to perform any act or duty under this chapter which is not discretionary
with the Administrator[.]”

The State argues that § 7604(a)(2) of the CAA, like § 1540(g)(1)(C) of the ESA,
specifically addresses the extent to which a citizen can sue a regulatory agency for its
regulatory failures or omissions. And the State observes that § 7604(a)(2) does not
authorize private suits against state agencies at all—because that subsection only
No. 10-3269 Sierra Club, et al. v. Korleski Page 11

authorizes suits against the federal EPA Administrator for nonperformance of mandatory
duties under the CAA. Thus, in the State’s view, if we interpret the term “violation” in
§ 7604(a)(1) to include a state’s nonperformance of regulatory duties, we would in effect
authorize lawsuits that Congress chose specifically not to authorize in
§ 7604(a)(2)—namely, those against a state agency. But that argument begs the question
whether § 7604(a)(1) does authorize suits against a state regulator qua regulator—in
which case there would have been no need to repeat that authorization in § 7604(a)(2).
On this point the State and the United States have battled to a draw: the first of the three
reasons cited in Bennett does not strongly support either party here.

But the Court’s second reason does. In adopting the government’s argument that
the term “violation,” as used in the ESA’s citizen-suit provision, reaches only “regulated
parties” rather than regulators, the Court reasoned: “Moreover, the ESA uses the term
‘violation’ elsewhere in contexts in which it is most unlikely to refer to failure by the
Secretary or other federal officers and employees to perform their duties in administering
the ESA.” Bennett, 520 U.S. at 173. One of those “contexts” was the ESA’s provision
for civil penalties: “Section 1540(a), for example, authorizes the Secretary to impose
substantial civil penalties on ‘[a]ny person who knowingly violates . . . any provision of
[the ESA],’ and entrusts the Secretary with the power to ‘remi[t] or mitigat[e]’ any such
penalty.” 520 U.S. at 173. Another context was criminal: “Nor do we think it likely
that the statute meant to subject the Secretary and his officers and employees to criminal
liability under § 1540(b), which makes it a crime for ‘[a]ny person [to] knowingly
violat[e] any provision of [the ESA.]’” 520 U.S. at 174.

The same uses of “violation,” in the same contexts, are present here. Section
7413(d)(1)(A) of the CAA authorizes the federal EPA Administrator to impose
substantial civil penalties against “any person” who “has violated or is violating any
requirement or prohibition of an applicable implementation plan.” We doubt that the
CAA should be read to authorize the head of the federal EPA to impose those penalties
against the head of the Ohio EPA. Indeed, the inference here is even stronger than in
Bennett, because under the CAA the Administrator may impose penalties of “$25,000,
No. 10-3269 Sierra Club, et al. v. Korleski Page 12

per day of violation,” 42 U.S.C. § 7413(d)(1)(A) (emphasis added), whereas the ESA
only authorizes a penalty of up to $25,000 total “for each violation.” 16 U.S.C.
§ 1540(a)(1). The same is true on the criminal side: Under § 7413(c)(1), “[a]ny person
who knowingly violates any requirement or prohibition of an applicable implementation
plan” is subject to “imprisonment not to exceed 5 years,” whereas in Bennett the
maximum sentence for violations was only one year. See 16 U.S.C. § 1540(b)(1).

The United States’ response, so far as the civil penalties are concerned, is that
§ 7413(d)(1)(A) merely affords the EPA Administrator “discretion” to impose ruinous
fines upon her counterpart in Ohio. U.S. EPA Br. at 15 n.8. That argument is
unpersuasive. Cf. Sackett v. Envtl. Prot. Agency, 132 S. Ct. 1367, 1375 (2012) (Alito,
J., concurring) (“The position taken in this case by the Federal Government—a position
that the Court now squarely rejects—would have put the property rights of ordinary
Americans entirely at the mercy of Environmental Protection Agency [] employees”).
And as for the prospect of subjecting the Ohio Director to up to five years’ imprisonment
for his failure to administer the BAT requirement—since, after all, the plaintiffs’ entire
theory of the case is that the Director “knowingly violate[d] a[] requirement” in the SIP,
42 U.S.C. § 7413(c)(1)—the EPA has nothing to say.

The implications of the plaintiffs’ interpretation of the term “violation” as used
in the CAA render the interpretation implausible. That is all the more true given the
calibrated instruments that the CAA gives the federal EPA to coax states into compliance
with a SIP, see supra at 2–3—instruments compared to which the civil and criminal
penalties described above would be a battleaxe. In Bennett, speaking of the civil
penalties that would flow from the plaintiffs’ interpretation of “violation” there, the
Supreme Court said: “We know of no precedent for applying such a provision against
those who administer (as opposed to those who are regulated by) a substantive law.”
520 U.S. at 173–74. We know of no such precedent either; and so far as we are
concerned, this case is not going to be the first.

There remains the Supreme Court’s third reason for rejecting the plaintiffs’
interpretation of “violation” in Bennett, which was that it “would effect a wholesale
No. 10-3269 Sierra Club, et al. v. Korleski Page 13

abrogation of the [Administrative Procedure Act]’s ‘final agency action’ requirement.”
Id. at 174. Specifically, under the plaintiffs’ interpretation there, “[a]ny procedural
default, even one that has not yet resulted in a final disposition of the matter at issue,
would form the basis of a lawsuit.” Id. That reason does not itself apply here, since a
state agency’s actions are not reviewable under the APA. But an analogous and equally
important reason does apply.

Namely, the plaintiffs’ interpretation of “violation” in this case is inconsistent
with the CAA’s sanctions regime. That regime affords the State 18 months to cure its
failure to implement a requirement in a SIP, after which the Administrator can impose
sanctions in order to induce, but not to compel, the State to implement the requirement.
See 42 U.S.C. § 7509(a). The point of this waiting period obviously seems to be to
encourage the state and federal agencies to work out their differences in the meantime.
But the plaintiffs’ interpretation of the citizen-suit provision would allow them to bring
suit immediately upon flagging a State’s failure to implement. That would effectively
“abrogat[e]” the CAA’s 18-month cure period the same way that the Bennett plaintiffs’
interpretation of the same provision in the ESA would have abrogated the “APA’s ‘final
agency action’ requirement[.]” 520 U.S. at 174. And here the plaintiffs could sue not
merely to induce, but to compel the State to implement the SIP—which again is contrary
to the sanctions regime. Cf. New York v. United States, 505 U.S. 144, 188 (1992) (“The
Federal Government may not compel the States to enact or administer a federal
regulatory program”). That is indeed the relief the plaintiffs sought in this case—and
that is the relief they received. See District Court’s Order Granting Plaintiffs’ Motion
for Partial Summary Judgment, at 17 (Feb. 2, 2010) (“The Director is ORDERED to
implement and enforce O.A.C. § 3745-31-05 contained in the U.S. EPA approved SIP”).
Simply stated, the immediate, compulsory relief that the plaintiffs sought and obtained
in this case makes nonsense of the more deliberate and cooperative regime set forth in
42 U.S.C. § 7509.

Section 7509 provides an even more direct indication that “violation” does not
mean what the plaintiffs say it means. Subsection 7509(a) is entitled “State failure[,]”
No. 10-3269 Sierra Club, et al. v. Korleski Page 14

and includes among its enumerated “failure[s]” situations where the Administrator “finds
that any requirement of an approved plan [i.e., a SIP] (or approved part of a plan) is not
being implemented” by a State. Id. § 7509(a)(4) (emphasis added). That is indisputably
the situation we have here. See, e.g., U.S. EPA Br. at 7 (stating that the Ohio EPA
Director has refused to implement “the Ohio SIP’s requirement that an air contaminant
source will employ BAT before issuing a permit”). And yet § 7509(a) does not call such
a State failure to implement a “violation” of the SIP. What § 7509(a) calls a State’s
failure to regulate, instead, is a “deficiency[.]” Id. (emphasis added). Specifically, that
section empowers the Administrator to impose sanctions if she finds that a SIP
requirement “is not being implemented, unless such deficiency has been corrected within
18 months after the finding[.]” Id. (emphasis added).

In construing a statute, the words matter. The word that Congress chose to
describe the precise regulatory failure at issue here is “deficiency,” not “violation.” All
of the problems described above demonstrate that Congress had good reason not to call
this sort of regulatory failure a “violation.” We could sift through the statutory text still
more to show that Congress distinguished between state failures to regulate and
“violations” of a SIP, sometimes within the same sentence. See, e.g., id. § 7413(a)(2)
(empowering the Administrator to enforce a SIP’s requirements directly when she finds
that violations of a SIP “are so widespread that such violations appear to result from the
failure of a State . . . to enforce the plan or permit program effectively”) (emphasis
added). And we could point to other provisions indicating that the Act limits the term
“violator” to regulated entities, rather than regulators. See, e.g., id. § 7413(e) (including,
among the criteria for “determining the amount of any penalty to be assessed under this
section or section 7604(a) of this title,” the “size of the business” and the “economic
impact of the penalty on the business”). But we will not belabor the issue further.

The text and structure of the CAA make plain that § 7604(a)(1) does not permit
citizen suits against state regulators qua regulators. Instead, like the nearly identical
ESA provision that even the United States says was “patterned after” it, § 7604(a)(1) is
only a means by which “parties may enforce the substantive provisions of the [CAA]
No. 10-3269 Sierra Club, et al. v. Korleski Page 15

against regulated parties[.]” Bennett, 520 U.S. at 173. We would reach that conclusion
even without the benefit of the Supreme Court’s analysis of the nearly identical
provision in Bennett; and we are compelled to reach it here, because we have no lawful
basis to distinguish that case from this one.

B.

The plaintiffs argue nonetheless that our decision in United States v. Ohio
Department of Highway Safety, 635 F.2d 1195 (6th Cir. 1980), requires us to construe
§ 7604(a)(1) to authorize the citizen-suit here. In Highway Safety, we construed the term
“violation” as used in § 7413(a)(1) to include the State of Ohio’s refusal “to withhold
registration from vehicles which have not passed emission inspection.” 635 F.2d at
1197. (Under the SIP, vehicles in certain counties needed to pass an emission inspection
in order to register.) In response, the federal EPA sued the State as a party “in violation”
of the SIP, as that term is used in § 7413(a)(1). The State responded that § 7413(a)(1)
authorized the EPA to sue only regulated parties, not the State in its capacity as
regulator. Specifically, in reasoning similar to that later adopted by the Supreme Court
in Bennett, the State argued that § 7413(a)(2)—entitled “State failure to enforce SIP or
permit program”—was the subsection of § 7413(a) that dealt specifically with such
regulatory failures, rather than the more general (a)(1). After briefly reviewing the
statutory text, our court acknowledged that “there is no explicit authorization in the Act
for EPA to bring a direct action against a state under section [7413](a)(1).” 635 F.2d at
1202. We then turned to the Act’s legislative history, which we said was “imprecise.”
Id. at 1203. Over one judge’s dissent, we nonetheless concluded that the State could be
sued as a “violator” under § 7413(a)(1). 635 F.3d at 1204.

That specific holding is technically not binding on us here, since in this case we
construe § 7604(a)(1) rather than § 7413(a)(1). And for several reasons, we choose not
to extend that holding to § 7604(a)(1). The first is that the reasoning of Highway Safety
is dubious at best: the court overlooked all of the textual and structural indications
described above, to hold, on the basis of “imprecise” legislative history, that States are
subject to suit under § 7413(a)(1). Second, and most important, to the extent that
No. 10-3269 Sierra Club, et al. v. Korleski Page 16

Highway Safety can be read to imply that the term “violation” as used in § 7406(a)(1)
includes the actions or omissions of a state regulator qua regulator, the case is
irreconcilable with the Supreme Court’s later construction of a nearly identical provision
in Bennett. At least to that extent, therefore, Highway Safety is no longer good law. And
third, the case came during an era whose conception of the state-federal relationship has
been superannuated by the Supreme Court’s later decisions in New York and Printz v.
United States, 521 U.S. 898 (1997). Courts no longer use balancing tests to hold that the
federal government can “require” a State to administer a federal regulatory program,
which is what we did in Highway Safety. 635 F.2d at 1205. Compare New York, 505
U.S. at 188 (“The Federal Government may not compel the States to enact or administer
a federal regulatory program”). In summary, Highway Safety is a bottle of dubious
vintage, whose contents turned to vinegar long ago, and which we need not consume
here.

The plaintiffs also refer us to cases from three other circuits, which putatively
support the plaintiffs’ position here. But in one of those cases, the state (actually,
municipal) defendants never argued that they were not subject to suit in their regulatory
capacities under § 7604(a)(1); and thus the court never analyzed that issue. See Coal.
Against Columbus Center v. City of New York, 967 F.2d 764 (2d Cir. 1992). And the
Ninth Circuit’s decision McCarthy v. Thomas, 27 F.3d 1363 (9th Cir. 1994), does not
mention § 7604(a)(1) at all. So neither case construes the provision we must construe
here. It is true that, as a factual matter, each case involved a state defendant who, for
whatever reason, chose not to raise the argument that Ohio raises here. But we will not
construe § 7604(a)(1) based upon that fortuity. The case from the remaining circuit,
American Lung Ass’n of New Jersey v. Kean, 871 F.2d 319 (3d Cir. 1989), did “conclude
that we do have jurisdiction under section [7604] to adjudicate citizens’ suits against the
state in its regulatory capacity.” Id. at 324–25. But in doing so the court merely
assumed, without discussing, that a state failure to regulate is a “violation” rather than
a “deficiency” under the Act. Moreover, all of these cases are pre-Bennett. Suffice it
to say that we follow Bennett.
No. 10-3269 Sierra Club, et al. v. Korleski Page 17

C.

That the plaintiffs cannot sue the State in this case does not mean there are no
remedies for the regulatory failure of which they complain. The Clean Air Act
specifically contemplates the very situation we have here: a “State’s failure to enforce
[a] SIP or permit program[.]” 42 U.S.C. § 7413(a)(2); see also id. § 7509(a). And the
Act affords the federal EPA a wide range of remedies to resolve that situation. The EPA
can order the regulated parties to comply with the BAT requirement, or impose an
administrative penalty upon them, or sue them. Id. § 7413(a)(1). The EPA can
administer the BAT requirement itself. Id. § 7413(a)(2). Or the EPA can engage the
State directly, through the process of dialogue and inducement so plainly contemplated
by the Act’s sanctions provision, § 7509.

That is all to say that this lawsuit is profoundly contrary to the Act’s remedial
design. The Act’s very nature is, and constitutionally must be, “cooperative.” Ellis v.
Gallatin Steel Co., 390 F.3d 461, 467 (6th Cir. 2004). And thus, in disputes like this
one, the Act envisions a cooperative resolution—a resolution, moreover, worked out
between branches of the state and federal governments that are in a meaningful sense
democratically accountable. What the Act does not envision is a compulsory resolution
imposed by a democratically unaccountable federal judiciary. And yet that is the path
the EPA advocates here. For whatever reason, the EPA has chosen not to employ any
of the means that the Act places at its disposal to resolve its dispute with the State of
Ohio. What the EPA has chosen, instead, is to file an amicus brief in support of this
lawsuit.

Which leads to another point. Section 7509(a) provides that, if the EPA finds
that a State has failed to implement a requirement in its SIP, the EPA Administrator
“shall[,]” after the 18-month cure period, impose one of the sanctions set forth in
§ 7509(b). “Shall,” the Supreme Court reminds us in Bennett, is an “imperative” term.
520 U.S. at 175. And § 7604(a)(2) expressly authorizes citizen suits “against the
Administrator where there is an alleged failure of the Administrator to perform any act
or duty under this chapter which is not discretionary with the Administrator[.]”
No. 10-3269 Sierra Club, et al. v. Korleski Page 18

(Emphasis added.) So even the plaintiffs themselves have a remedy here. If they want
to sue a regulatory agency, they can do so. They have simply chosen the wrong one.
The agency that the Act authorizes them to sue is the federal EPA.

The judgment of the district court is reversed, and the case remanded with
instructions to dismiss the complaint.
No. 10-3269 Sierra Club, et al. v. Korleski Page 19

______________

DISSENT
______________

COLE, Circuit Judge, dissenting. Adopting the majority’s theory yields a
particularly peculiar result. It would permit panels of this Court to reexamine and adopt
arguments that previous panels had rejected, solely by questioning the logic of the
previous panel’s decision. Because so doing jeopardizes the stability of our
jurisprudence, for both future panels and future litigants, I respectfully dissent.

The majority’s thoughtful, comprehensive opinion compellingly questions the
wisdom of permitting citizen groups to sue state regulators who fail to enforce emissions
regulations. Permitting such private enforcement actions, given the comprehensiveness
of the Clean Air Act’s regulatory scheme, would, as the majority makes clear, yield
uncertainty and confusion. If the federal administrator deems a state enforcement
agency not to be in compliance with its state implementation plan, the state has eighteen
months to bring itself into compliance, lest it risk losing federal highway funds. 42
U.S.C. § 7509(a). Yet, a private group, like the plaintiffs in this case, could demand
immediate injunctive relief without giving the state any time to correct its enforcement
failings. The majority opinion, perhaps rightly so, seeks to preclude such enforcement
confusion, given that “[t]he federal Clean Air Act is a model of cooperative federalism.”
Ellis v. Gallatin Steel Co., 390 F.3d 461, 467 (6th Cir. 2004).

My disagreement stems from the majority’s approaches to Highway Safety and
to the deference that we owe to prior opinions. “A statute is passed as a whole and not
in parts or sections and is animated by one general purpose and intent. Consequently,
each part or section should be construed in connection with every other part or section
to produce a harmonious whole.” 2A Sutherland Statutory Construction § 46:5 (7th ed.)
(emphasis added). What the majority opinion seeks to do, then, is to have the word
“violation” mean one thing under § 7413(a)(3), but something completely different
under § 7604(a). To be sure, although “there is a natural presumption that identical
words used in different parts of the same act are intended to have the same meaning,”
No. 10-3269 Sierra Club, et al. v. Korleski Page 20

Atl. Cleaners & Dyers v. United States, 286 U.S. 427, 433 (1982), such a presumption
can be overcome if it is clear that the legislature intended such divergence, id.

The majority argues that because Highway Safety discussed a different part of the
CAA, that opinion’s definition of “violation” is “technically not binding on us here.”
However, the majority fails to point to any legislative history that rebuts the presumption
that words in the same statute have the same meaning. Instead, the majority seeks to
distance itself from Highway Safety’s holding by substituting its own interpretation of
the CAA’s legislative intent, and by drawing inferences of such intent from the overall
scheme of the CAA. Importantly for our purposes, such arguments were equally
applicable, and made and rejected, in Highway Safety. The majority opinion in Highway
Safety examined the enforcement scheme of the CAA to determine if the relevant portion
of the statute preferred a unimodal enforcement approach, and concluded that it did not.
635 F.2d 1195, 1201-04 (6th Cir. 1980) (“There is no indication in the legislative history
that EPA is limited to proceeding under [only one section] in every situation where a
state is an offending party.”).

“Sixth Circuit Rule 206(c) is unequivocal: Reported panel opinions are binding
on subsequent panels. Thus, no subsequent panel overrules a published opinion of a
previous panel. Court en banc consideration [or intervening Supreme Court authority]
is required to overrule a published opinion of the court.” United States v. Lucido,
612 F.3d 871, 878 (6th Cir. 2010) (Batchelder, C.J., dissenting) (internal quotation
marks omitted). Which leads us to the real problem: The majority attempts to elude
Highway Safety’s reach by insisting that developments in federalism theory require
abandonment of that case’s holding. I am hard-pressed to believe that the penumbrae
of cases like New York and Printz play such an abrogative role. Rule 206(c), a
codification of the law-of-the-circuit doctrine, requires more than a belief that the
Supreme Court, given current trends in jurisprudence, would overturn Highway Safety.
There must be some precedential effect of the intervening authority that “requires” us
to ignore our prior mandates. See Caswell v. City of Detroit Housing Com’n, 418 F.3d
615, 618 n.1 (6th Cir. 2005); United States v. Moody, 206 F.3d 609, 615 (6th Cir. 2000)
No. 10-3269 Sierra Club, et al. v. Korleski Page 21

(“[T]he earlier determination is binding authority unless a decision of the United States
Supreme Court mandates modification . . . .”) (emphasis added); cf. Craft v. United
States, 233 F.3d 358, 378 (6th Cir. 2000) (Gilman, J., concurring) (“The purpose of the
intervening-controlling-authority exception is to allow a subsequent panel of this court
to respond to a new precedent, unavailable to the prior panel, not just a new decision.”)
rev’d on other grounds, 535 U.S. 274 (2002). We are not so required here. See, e.g.,
Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (restricting the overruling of prior
precedent to when intervening Supreme Court law is “clearly irreconcilable”).

Lastly, after arguing that Highway Safety is inapplicable because it analyzes a
different provision of the same statute, the majority reverses course and contends that
Bennett, a case analyzing a wholly different statutory scheme, controls the outcome here.
Such a tack is fraught with irony. Why is it that a Supreme Court case about the
Endangered Species Act should inform our thinking on the CAA, but a prior binding
panel opinion discussing the CAA does not? Mere similarity in language does not create
binding precedent; it creates an inference that the interpretation of a word in one statute
may apply to the interpretation of that word in another statute. But such inferences alone
cannot trump this Court’s prior interpretation of that word in that statute.

The majority opinion is a fine example of nuanced and thoughtful writing, and
an opinion which I likely would join, but for Highway Safety. Even if all of us doubt
that case’s enduring vitality, as an individual panel, we are simply without power to
abandon its effect. “[T]he law-of-the-circuit doctrine is derived from legislation and
from the structure of the federal courts of appeals. Courts of appeals sit in panels, or
divisions, of not more than three judges pursuant to the authority granted in 28 U.S.C.
§ 46(c). The decision of a division is the decision of the court.” LaShawn A. v. Barry,
87 F.3d 1389, 1395 (D.C. Cir. 1996) (internal quotation marks omitted). It is, frankly,
not up to us to decide if Highway Safety is a “bottle of dubious vintage.” Regardless of
whether its “contents turned to vinegar,” we must plug our noses and drink.