ELR Citation: 42 ELR 20113
No(s). 10-3269 (6th Cir. May 25, 2012)

The Sixth Circuit held that the CAA's citizen suit provision does not allow an environmental group to file suit to compel the state of Ohio to administer a particular federal CAA regulation it has chosen no longer to administer. In 2006, the Ohio General Assembly passed legislation that allows the state's environmental agency to issue permits to smaller emission sources—those producing less than 10 tons per year of emissions—without first determining whether those sources will use best available technology (BAT). Ohio's governor signed this legislation and the agency amended its regulations to reflect this change. As a result, Ohio no longer administers the BAT requirement against small emitters. An environmental group filed suit, arguing that the state'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 CAA's citizen suit provision. But CAA §304(a)(1) 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 court, therefore, reversed the lower court's judgment and remanded with instructions to dismiss the complaint.