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United States v. Ohio Dep't of Highway Safety

ELR Citation: 11 ELR 20026
Nos. Nos. 78-3306, -3307, 635 F.2d 1195/15 ERC 1273/(6th Cir., 12/05/1980)

Reversing the district court, the Sixth Circuit Court of Appeals rules that pursuant to §113 of the Clean Air Act the Environmental Protection Agency (EPA) may institute an enforcement action directly against the State of Ohio seeking relief from the state's alleged refusal to enforce that part of its state implementation plan (SIP) calling for auto emission control system inspection and maintenance. Section 113 authorizes EPA to commence a suit against any "person" in violation of an SIP and clearly includes states within the definition of "person." On the other hand, the section suggests that the prescribed remedy for nonenforcement of an SIP is for EPA to assume direct enforcement authority rather than to sue the state. The ambiguity in §113 is clarified to some degree by the legislative history of the 1977 amendments to the Act, which indicates that EPA has several remedies for state nonenforcement, including "compulsion."

The court explicitly declines to accept EPA's argument that the state, as "owner and operator" of the streets and highways under its jurisdiction, can be deemed a violator for purposes of §113. It does, on the other hand, accept the argument that the state can become a violator by not fulfilling its duty under the SIP to enforce the inspection and maintenance program. Therefore, the court rejects the district court's conclusion and rules that EPA has a cause of action directly against Ohio. It adds that this result does not run afoul of the Tenth Amendment since a lawsuit of this kind does not impermissibly interfere with the integral functions of the state and does not impair its ability to function in the federal system.

A dissent differs in its interpretation of §113 and concludes that the majority's result conflicts with the Tenth Amendment and infringes upon the state's sovereign immunity.

Counsel for the United States
Robert L. Klarquist, Barbara H. Brandon, Anne S. Almy; James W. Moorman, Ass't Attorney General
Lands and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2731

Counsel for the State of Ohio
Halstead L. Stettler
Office of the Attorney General
State Office Tower, 30 E. Broad St., Columbus OH 43215
(614) 466-3376

Before: WEICK, LIVELY, and MERRITT, Circuit Judges.