Further Comments on Ohio v. Ruckelshaus

Martha E. Horvitz

Ms. Horvitz is Assistant Attorney General in the State of Ohio.

I have just read the comment in the February 1986 News & Analysis concerning the recent attainment/nonattainment area cases.¹ I found the analysis interesting and thorough. Further, I believe that the analysis is valid based upon what the decisions say. However, I thought I should bring to your attention two aspects of Ohio v. Ruckelshaus² where the court's opinion does not correctly reflect the record before it.

The first and most important error the court made was in stating that Ohio's redesignation request was made pursuant to § 107(e)³ of the Clean Air Act.⁴ In fact, Ohio's request was a § 107(d)(5)⁵ request for change in attainment status designation, not a request to redesignate air quality control region boundaries. Lorain and Medina Counties were just two of forty-six counties for which Ohio simultaneously requested a change from nonattainment to attainment status for the ozone national ambient air quality standards. The Environmental Protection Agency (EPA) approved the redesignation to attainment status of all except nine of these counties.

The second strange aspect of the court's decision was the reference to Criterion No. 5. That particular federal guideline was not part of the record in the Ohio case nor was it discussed by the parties in the briefs, since it was obviously inapplicable to ozone nonattainment areas. The court apparently found the reference to Criterion No. 5 in the Western Oil & Gas Association v. United States Environmental Protection Agency⁶ decision. As the comment noted, the Ninth Circuit did not mention that Criterion No. 5 was specifically inapplicable to ozone nonattainment areas. Unfortunately, the Western Oil & Gas Association decision was handed down and submitted by U.S. EPA to the Sixth Circuit only a week or two before oral argument in Ohio v. Ruckelshaus. The parties had no opportunity to include a discussion of Western Oil & Gas in any briefs filed with the Sixth Circuit. Thus, the Sixth Circuit's reliance on Criterion No. 5 is clearly incorrect, although I think the court was unaware of this, having apparently simply relied on the Ninth Circuit's cryptic mention of it.

To update you on our case, on February 12, 1986, Ohio filed a petition for writ of certiorari in the U.S. Supreme Court in this case.⁷ I expect that our chances of review being granted are slim, but we are giving it a try. One of the bases for our petition is the apparent difference in the standard of review employed by the Sixth and Seventh Circuits in these essentially identical cases.

1. Comment, When Is An Area That Is In Attainment Not An Attainment Area?, 16 ELR 10041 (February 1986).

2. 776 F.2d 1333, 16 ELR 20013 (6th Cir. 1985).

3. 42 U.S.C. § 7407(e), ELR STAT. 42208.

4. 42 U.S.C. §§ 7401-7642, ELR STAT. 42201.

5. 42 U.S.C. § 7407(d)(5), ELR STAT. 42208.

6. 633 F.2d 803, 10 ELR 20985 (9th Cir. 1980).

7. 54 U.S.L.W. 3566 (U.S. Feb. 12, 1986) (No. 85-1372).