After months of battling at the statehouse and the courthouse, OELC (along with industry and fellow environmental groups) have staved off the attempt of the Ohio General Assembly and the Governor’s Office to force unworkable timelines on the Environmental Review Appeals Commission (ERAC). See previous post .
On Friday, the Franklin County Common Pleas Court issued an order vacating all pending notices that schedule hearings de novo that limit the parties before the Commission to one hour for the presentation of evidence. The court ruled that there is no language in the budget bill amendments to R.C. 3745.05(F) providing that the Commission loses jurisdiction over appeals or any other action if the Commission fails to meet the deadlines, the time limits should be construed as directory rather than mandatory . Therefore, the mere aspirational timelines do not prevent the Commission from providing to the parties hearings de novo that comport with principles of due process of law.
So, the end result of several months of back and forth over the Ohio legislation is that we are now back to the status quo. ERAC will now re-schedule hearings in all pending cases — a monumental task that will only lead to more delays.
The most important question is whether anything is truly broken with the ERAC process. OELC believes that the answer is NO. Important and complex legal cases take time to resolve, and take longer when the parties involved (on their own or in concert) drag cases on for years. If changes need to be made to make ERAC function efficiently and effectively, the OELC proposes:
1. That the Commission be funded properly in order to have adequate legal staff to assist Commissioners with research and drafting orders and opinions. Judges in state and federal courts, as well as other administrative Commissions, have law clerks and staff attorneys to assist with legal research and drafting–and so should ERAC.
2. The Commission should order the parties to meet very early in the appeal process and develop a Case Management Plan. Such a plan would have a date certain for a hearing de novo as well as a date certain for discovery to begin and end, for expert witness reports to be filed, and other dates. Unlike the General Assembly’s ill-fated attempt to put the responsibility on the Commission to meet deadlines, this puts the responsibility on the parties to work together as civil legal professionals and work toward an efficient and just resolution of the case.
Read coverage on the ERAC issue from the Columbus Dispatch.