Archive for September, 2009

Today, members of the U.S. Senate’s Environment and Public Works Committee introduced their own climate bill, the Clean Energy Jobs and American Power Act. At first glance, the 821 page bill, written by Senators John Kerry (D-MA) and Barbara Boxer (D-CA), is stronger than its House counterpart in at least one important respect: the level of emissions reductions.

For example, the bill’s carbon cap would be more aggressive than the one established by the American Clean Energy and Security Act (ACES), passed by the House of Representatives in June. The cap established by the Boxer-Kerry bill would reduce national carbon dioxide emissions to 20 percent below 2005 levels by 2020, up from a 17 percent reduction established by ACES, and reduce emissions to 80 percent below 2005 levels by 2050.

Like ACES, the Boxer-Kerry bill includes funding to support renewable energy resources as well as carbon capture and sequestration technology applied to coal-fired power plants. In addition, the bill includes a nuclear title, which provides more funding for loan guarantees and liability insurance for operators. The title also supports the development of a trained workforce to operate new nuclear facilities.

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This week the Ohio Senate’s Committee on State and Local Government passed Continuing Resolution 13 (S.C.R. 13), non-binding legislation that “reaffirms” the supremacy of the Tenth Amendment of the United States Constitution.  The Tenth Amendment provides that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” 

The resolution implies that the federal government has only those powers that are expressly delegated to it.  However, this view of the Constitution has been consistently rejected by the U.S. Supreme Court.  Moreover, limiting the powers of the federal government to only those expressly delegated to it could render numerous federal laws—including those related to environmental protection, health care, and civil rights—unconstitutional.

Read OEC’s testimony in opposition to S.C.R. 13, criticizing the resolution and highlighting its potential to impact environmental protection.

UPDATE: OELC quoted in The Daily Reporter

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Today, the OELC, along with the Natural Resources Defense Council, the National Parks Conservation Association, Sierra Club, and SunCoke Watch, filed a petition for a writ of mandamus in Ohio’s Tenth District Court of Appeals.  The petition seeks to compel the Environmental Review Appeals Commission (ERAC) to set a hearing schedule that would give the parties a fair chance to argue their cases.

The action stems from the passage of House Bill 1 earlier this year, which required ERAC to follow a strict timetable and to quickly dispense with pending and future cases.  As a result of House Bill 1, ERAC imposed a one-hour time limit for argument in over 300 pending cases, including several brought by the OELC.

“A one-hour time limit for argument, divided between two or more parties, cannot provide the basic due process of law that is guaranteed by our state and federal constitutions,” said Trent Dougherty, Director of the OELC.  “Many of the cases scheduled for a one-hour hearing involve complicated legal and factual questions and have huge consequences for the environment,” said Dougherty.

A writ of mandamus, authorized under Revised Code Chapter 2731, is an order from a superior court which mandates that a lower court must comply with a certain law, rule, or judgment.  If ordered by the Court of Appeals, the writ would require ERAC to come up with a schedule for hearings that gives the parties a sufficient amount of time to develop argue the cases, present evidence, and cross-examine witnesses.

Read more on this issue here.

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The Eleventh District Court of Appeals in Merrill v. State of Ohio found that the public may walk upon the shoreline only so long as they stay in the water and that landowners can build all the way to our Lake and construct fences along our coast. The District Court’s decision upheld the trial court’s novel finding that the boundary between private and public property is where the water touches the land at any given time.

These findings eviscerate the centuries old “public trust doctrine,” which provides that Lake Erie is held in trust by the state for the use and benefit of all Ohioans. Courts have always interpreted the public trust doctrine to mean that the shoreline up to the ordinary high water mark, in addition to Lake Erie itself, is held in trust for the citizens of Ohio. In its decision, the Eleventh District simply ignores and misapplies controlling case law from the Supreme Court of Ohio.

Court Strips State of Ohio of its Independent Advocate in the Case

Equally troubling, however, is the court’s finding that the Ohio Attorney General Richard Cordray has no authority to represent the citizens of the state in the matter. Judge Colleen Mary O’Toole, writing for the court, stated that “[t]he Ohio Attorney General may only act at the behest of the governor, or the General Assembly.” Because the Attorney General was not acting on behalf of the Governor, the court reasoned, he had no standing to participate in the appeal.

The court’s decision on this point is a gross misinterpretation of the Revised Code and a stark departure from over 100 years of court precedent.Such an unprecedented finding could have unknown implications for the enforcement of virtually any public protection law– including laws protecting human health, public safety and consumers.

The Appeals Court justified its removal of the State of Ohio and its Attorney General by citing only Ohio Revised Code Sec. 109.02. While this code section states that the Attorney General shall represent the state “[w]hen required by the governor or the general assembly,” the code does not state that the Attorney General cannot act on behalf of the public, as the Appeals Court decision implies.

In fact, for over 100 years Ohio courts have held that the Attorney General has the common law authority to protect the interests of Ohio citizens. “This is textbook judicial activism,” said Will Reisinger, staff attorney for the OELC.  “In its decision to remove the Attorney General from the case and to eviscerate the public trust doctrine, the court is clearly trying to ‘legislate from the bench.’

Reisinger added, “We have not confirmed with the Ohio Attorney General as to the intentions of the office as they pertain to this case, however, the direct attack on Lake Erie, the Public Trust Doctrine, and the effectiveness and independence of the office of Attorney General would give the AG no other rational choice. We are more than confident that the AG will continue as his predecessors to stand up for all Ohioans, and stand with the environmental and conservation community to defend this important case.”

Click Here to Read OELC’s Press Release on Merrill v. State of Ohio.

Click Here to Read OELC’s full statement on the State of Ohio’s Dismissal.

UPDATE: Attorney General Richard Cordray files appeal with Supreme Court of Ohio. Read OEC’s press release praising Cordray’s decision.

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Join us in Columbus on December 2 for an OELC Reception. Free and open to everyone, we’ll enjoy hors d’oeuvres and beverages as we thank OELC supporters for another successful year. 4 – 6 p.m., Ohio Environmental Council offices, 1207 Grandview Avenue, Columbus, 43212.

On December 10, we’ll be in Cleveland for an Open House Fundraiser to benefit the OELC held by Chris Thorman of Thorman & Hardin-Levine. 4 – 8 p.m., 1220 West Sixth Street, Cleveland, 44113.

For more information, please contact us at (614) 487-7506 or

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