Ohio's Air Nuisance Rule Ruling

At a glance

Read the opinion

The full Decision and Entry, 13 pages, as filed with the Franklin County Clerk of Courts on October 14, 2026, with the court's one-page disposition sheet:

• Decision and Entry, No. 25CV009387 (PDF, 14 pages)
• The plaintiffs' complaint, filed October 24, 2025 (PDF, 32 pages; the copy the Ohio Environmental Council posted, without the clerk's stamp)
• The case docket at the Franklin County Clerk of Courts (search Civil, case 25 CV 009387)

What the rule does

The heart of Ohio's air nuisance rule is two sentences. They say that sending smoke, ashes, dust, dirt, grime, acids, fumes, gases, vapors or other substances into the open air in a way that endangers people's health, safety or welfare, or does unreasonable damage to property, is a public nuisance, and that causing one is unlawful. A second paragraph applies the same test to odors from regulated sources.

U.S. EPA approved the rule into Ohio's State Implementation Plan, the state's plan for meeting the federal Clean Air Act, in 1974. That placement is what matters. The Clean Air Act lets any person sue to enforce a standard in an approved state plan. As the judge put it, because the rule is in Ohio's plan, "it is federally enforceable under the Clean Air Act." Take it out of the plan, and residents lose that federal right to enforce it.

The rule has been used. Defendants in cases brought under it have included SunCoke Energy, AK Steel's Middletown Works (now owned by Cleveland-Cliffs), Georgia-Pacific and Phthalchem, according to Canary Media, which reported that consent decrees and settlements produced orders or agreements to stop alleged nuisances, clean up waste and expand monitoring.

How it got to court

• 2019. SunCoke, a coke maker that has been repeatedly accused of air violations in Ohio, hired a law firm that lobbied U.S. EPA to remove the rule from Ohio's plan, Signal Ohio reported.
• November 19, 2020. U.S. EPA removed the rule from Ohio's plan, effective December 21, using the Clean Air Act's error-correction power. It said Ohio had not relied on the rule to meet federal air quality standards.
• January 2021. Sierra Club, the Ohio Environmental Council and two residents, Donna Ballinger and Marilyn Wall, challenged the removal in the U.S. Court of Appeals for the Sixth Circuit (No. 21-3057).
• February 10, 2023. The Sixth Circuit sent the removal back to EPA for another look without undoing it, so the rule stayed out of the plan for the time being.
• January 21, 2025. U.S. EPA reversed its 2020 removal, finding it had been in error and putting the rule back in Ohio's plan. That took effect February 20, 2025.
• March 3, 2025. Ohio's two U.S. senators and its 10 Republican House members introduced Congressional Review Act resolutions to undo the reinstatement (S.J.Res. 29 and H.J.Res. 66).
• June 2025. The Senate Finance Committee added the air nuisance language to House Bill 96, the state budget, on June 10, the complaint says; the community-monitor limits were already in the version the House passed April 9. The General Assembly passed the final bill on June 25, and Governor DeWine signed it on June 30. On pages 1432 to 1449 of the enacted bill, lawmakers rewrote parts of Ohio's air pollution law, Revised Code Chapter 3704. Signal Ohio reported that the effort drew support from SunCoke, Cleveland-Cliffs and the Chamber of Commerce, and that Senate Finance Committee Chairman Jerry Cirino declined to say which senator proposed it.
• September 30, 2025. The air sections took effect.
• October 24, 2025. Five plaintiffs sued the state and Ohio EPA in Franklin County.
• November 14, 2025. Ohio EPA asked U.S. EPA to remove the rule from Ohio's plan, as the budget directed. U.S. EPA proposed approving that request on May 28, 2026. As of October 24, 2026, no final action had appeared in the Federal Register.
• December 2025. Both sides agreed to skip a hearing and a trial and let the judge decide on written briefs. She approved that on December 15.
• October 14, 2026. Judge Lynch ruled for the plaintiffs.

What the budget changed

The judge called the challenged sections together the "Air Pollution Amendment." There were two parts.

Pulling the rule from the federal plan. Revised Code 3704.0310 ordered the director of Ohio EPA to remove the air nuisance rule from Ohio's plan, and barred the director from putting one back in the plan or relying on one to enforce federal air standards. The judge described this as barring any future air nuisance rule. The section did not repeal the state rule itself; it took away the federal-plan status that lets residents enforce it in federal court.

Limiting community air monitors. Several sections dealt with the low-cost monitors that residents and neighborhood groups put up themselves:

• 3704.01(H) defined "community air monitoring" in a way that, the judge wrote, "captures nearly all nongovernmental measurements";
• 3704.09(B) barred anyone from using that data as evidence for a fine, penalty or notice of violation, or for an enforcement action or lawsuit, under the Clean Air Act or state air law;
• 3704.09(C) barred Ohio EPA and local air agencies from relying on it in any rulemaking or permit decision, unless the polluter asked;
• 3704.03(I) and (J) limited the extra monitoring Ohio EPA could require in permits and barred it from contracting with private groups for community monitoring meant for those uses;
• 3704.031(B) barred the director from requiring certain permit applicants to do community air monitoring.

Why the judge struck it

The Ohio Constitution, Article II, Section 15(D), says "no bill shall contain more than one subject." A budget bill can cover many topics, the Ohio Supreme Court has held, as long as they are "bound by the thread of appropriations." A substantive change that rides on a budget only because the budget is sure to pass is a rider, and the court has struck riders before, including a school voucher program in 1999.

The judge started from the rule that courts presume a law is constitutional. She could strike it only if it "appears beyond a reasonable doubt that the legislation and constitutional provisions are clearly incompatible."

The state's argument. The state said the sections are tied to the budget: Ohio EPA's money comes partly from fines and fees, and the sections change how the agency spends its appropriations and how it can raise money. Cutting off community monitor data as a basis for fines, it argued, limits a source of revenue. Jennifer Van Vlerah, assistant chief of Ohio EPA's Division of Air Pollution Control, swore in a first affidavit that keeping the rule in the federal plan costs about 20 to 50 percent more in staff resources than a rule outside the plan, so removing it "could save the agency several thousand dollars." In a second affidavit in January 2026 she wrote that it "will save the Ohio EPA thousands of dollars" in staffing costs. She also said the monitor limits would cost Ohio EPA tens of thousands of dollars, because it would keep paying about $30,000 a unit for federally approved monitoring instead of about $300 for a low-cost sensor.

The judge's answer. She found the budget effects "indirect and tenuous at best":

• the shift between the two affidavits raised "credibility issues," and even taking the second as true, "saving thousands of dollars will have little to no impact on OEPA's budget";
• there was no evidence of how often, "if at all," Ohio EPA used community monitor data for fines, and no fiscal analysis of the ban;
• House Bill 96 does not require Ohio EPA to buy more monitors, and the agency had never been required to use community data in enforcement;
• under the state's theory, any change that touches an agency's daily work could ride on a budget. The Ohio Supreme Court rejected the idea that anything with even a slight budget effect belongs in a budget bill, in 1999 and again in 2004.

Her conclusion: "The Air Pollution Amendment has nothing to do with appropriations or state operations." It is "an environmental law change that bears no connection to the appropriations provisions in H.B. 96."

What the court ordered

• A declaration that the Air Pollution Amendment violates Article II, Section 15(D) of the Ohio Constitution.
• Revised Code 3704.0310, 3704.01(H), 3704.03(I) and (J), 3704.031(B) and 3704.09(B) and (C) severed from House Bill 96. The rest of the budget stands.
• A permanent injunction, kept narrow as the state asked, barring Ohio EPA from taking any further step to remove the rule from Ohio's plan under the budget language.
• An order that Ohio EPA withdraw its request to U.S. EPA.

The judge marked it a final appealable order with "no just cause for delay." The docket shows the case closed.

What happens next

• An appeal. The state can appeal to Ohio's Tenth District Court of Appeals in Columbus, and from there ask the Ohio Supreme Court to hear it. No notice of appeal was on the docket as of October 24, 2026. The Attorney General's office told Signal Ohio it was reviewing the ruling and determining next steps, and did not say whether it would appeal.
• U.S. EPA. Its May 2026 proposal to approve the removal has not been finalized. In it, U.S. EPA proposed finding that Ohio's plan has enough other controls and enforcement to protect air quality without the rule. Under the court's order, Ohio EPA must withdraw the request behind it.
• Congress. The March 2025 Congressional Review Act resolutions to undo the reinstatement were sent to committee the day they were introduced. The federal bill-status record shows no action on either since.
• The legislature. Nothing in the ruling stops lawmakers from passing the same changes as a stand-alone bill, which the one-subject rule allows.

Sources

• Franklin County Court of Common Pleas, Decision and Entry, Ohio Environmental Council et al. v. State of Ohio et al., No. 25CV009387, October 14, 2026.
• Complaint for preliminary injunction, permanent injunction and declaratory judgment, filed October 24, 2025 (as posted by the Ohio Environmental Council).
• Franklin County Clerk of Courts, Case Information Online, docket 25CV009387, read October 24, 2026.
• U.S. EPA, Federal Register: removal, November 19, 2020; reinstatement, January 21, 2025; proposed removal, May 28, 2026.
• Ohio Administrative Code 3745-15-07.
• Ohio Constitution, Article II, Section 15.
• Ohio Rules of Appellate Procedure, App.R. 4(A).
• U.S. Congress, S.J.Res. 29 and H.J.Res. 66, 119th Congress, introduced March 3, 2025.
• Signal Ohio, Courts block Ohio Republicans from killing a clean air law opposed by polluters, October 2026.
• Ideastream Public Media, Judge preserves Ohio provision allowing citizens to sue polluters, October 20, 2026.
• Canary Media, Ohio scrapped a key tool to fight air pollution. Advocates want it back., November 5, 2025.