Ohio judge blocks budget amendment repealing air nuisance rule

Ohio EPA may consider monitoring data to support fines or penalties

A Franklin County Common Pleas Judge blocked an Ohio budget amendment that ordered state officials to repeal the state’s air nuisance rule. In a ruling last week, Judge Julie Lynch found that the measure, slipped into the budget as an 11th-hour amendment, violated Ohio’s constitutional requirement that legislation address a single subject. The decision preserves a legal mechanism Ohio residents and the state have used to challenge pollution from industrial plants. A spokesman for the Ohio Attorney General’s office said the office was reviewing the ruling and determining next steps; the spokesman did not answer whether Ohio planned to appeal.

“The Air Pollution Amendment has nothing to do with appropriations or state operations. Therefore, it violates the Constitution’s one-subject rule,” Lynch said.

The ruling also blocked a related provision that prohibited the Ohio Environmental Protection Agency from considering data from community air-monitoring devices when deciding whether to issue a fine or penalty. The devices are privately owned sensors that some residents deploy when they feel officials do not believe their complaints.

The rule and the parties using it

The amendment directed the Ohio Environmental Protection Agency to remove the air nuisance rule from Ohio’s Clean Air Act plan. It would have eliminated a special legal route for Ohioans to sue neighboring polluters such as steel and other industrial plants that release smoke, ash or other fumes.

The air nuisance rule says the emission or escape of smoke, ash, dust, grime, acid, fumes, gas, vapors or other emissions that endanger the health, safety or welfare of the public or property is an unlawful nuisance. Since 1974, the rule has been part of Ohio’s comprehensive plan to comply with the federal Clean Air Act.

Donna Ballinger, a Cincinnati-area woman, is among the plaintiffs. She has used the air nuisance rule to challenge a neighboring 2,800-acre steel plant now owned by Cleveland Cliffs in the Butler and Warren county area. Both the state and private citizens have used the law in the past as well, including one resident who won a $1.3 million settlement from a Dayton-area nuclear waste disposal company.

Removing the rule would have blocked plaintiffs from suing in federal court. Some plaintiffs argued that the new rules would narrow, if not close, the door on state lawsuits as well.

Earlier efforts and reactions to the ruling

The ruling marked the second time in a short span of years that environmental interests had stopped, at least temporarily, an effort to remove the rule, which had been on Ohio’s books for more than 50 years.

In 2019, SunCoke, which makes coke used in the steelmaking process and has been repeatedly accused of air-emissions violations in Ohio, hired a law firm to lobby the U.S. Environmental Protection Agency to remove the rule from Ohio’s Clean Air Act plan. The report identified the steel industry and the Republican Party as actors that had sought the rule’s removal in the past. Most such changes in administrative law require a fairly robust and transparent process. But as SunCoke argued, and the EPA under President Donald Trump agreed, the rule’s original creation was described as a technical “error,” freeing it for a swift change.

Ballinger and a suite of environmental advocacy organizations sued to stop the EPA. A mix of drawn-out legal pressure and a change in presidential administration eventually led to the rule’s reinstatement in February 2025.

Around that time, lawmakers stepped in on the issue as they crafted the state budget, drawing support from SunCoke, Cleveland Cliffs and the Chamber of Commerce. Senators required the Ohio EPA to remove the rule from Ohio’s Clean Air Act plan through a late-breaking amendment passed just before the legislation passed. Senate Finance Chairman Jerry Cirino, a Kirtland Republican, declined to say which senator proposed it.

The Ohio Environmental Council and Case Western Reserve University’s Environmental Law Clinic, which participated in the lawsuit, hailed the ruling as a victory. “The repeal of the Air Nuisance Rule has never been popular nor justified, and the State of Ohio’s own records show it’s a critical tool the public and state agencies use to hold big polluters accountable,” said Neil Waggoner, the midwest Beyond Coal campaign manager for the Sierra Club.

Waggoner also said, “The Court’s ruling is clear, and the State of Ohio should move expeditiously to end the current repeal effort and should not take any further action to undermine the rule again.”