Archive for December, 2009

The moment you all have been waiting for, Number One in this countdown of environmental achievements and mishaps of the past year . . .

No. 1 — Ohio Environmental Council’s Legal Division becomes the William W. Ellis Ohio Environmental Law Center

OK, it maybe a little self-serving, but it is a big deal for Ohio’s environmental community, and a huge step forward for public interest environmental and conservation law which will only grow in 2010.

For 40 years, the Ohio Environmental Council (OEC) has worked behind the scenes and on the front lines of Ohio’s most important environmental battles.   The OEC’s Air & Energy Program and Agriculture & Water Program provide the eyes and ears for everyday citizens—keeping watch over the Ohio legislature and state agencies and the powerful special interest lobbyists that try to influence the law.  In fact, the Ohio Environmental Council sometimes is the only voice representing the public at Statehouse committee meetings, public hearings, government advisory committees and other state regulatory proceedings.

OEC’s legal team for many years consisted of outside counsel assisting OEC in filing cases.  This evolved, in 2003, to the OEC Environmental Law Clinic, where Law School interns worked mainly as the legal research and drafting wing of the OEC policy programs.  In 2009, the legal arm of the OEC evolved into the William W. Ellis Ohio Environmental Law Center.

The OEC’s William W. Ellis Ohio Environmental Law Center is the only statewide public interest environmental law center in Ohio.  The Law Center is unique, as its primary client is the Ohio Environmental Council and its thousands of group and individual members.  This structure allows us to provide a topnotch combination of legal, policy, and legislative advocacy on Ohio’s most important environmental concerns.  The Law Center focuses on three areas:

  1. Legal Advocacy

On its own and working with national and regional organizations, the Law Center was at the forefront of many clean energy and clean water struggles before administrative agencies, the general assembly and the courts.  Our principled and pragmatic advocacy made great strides for Ohio in 2009:

  • OELC engaged in fifty separate cases before the PUCO, including applications for utility residential and commercial efficiency programs, waivers from the energy efficiency benchmarks;
  • Testified against regulatory reform initiatives that sought to sacrifice environmental protection for quicker permits, while providing support for initiatives that helped small business and individuals efficiently maneuver the labyrinth of state bureaucracy;
  • Testified in opposition to drilling in Ohio’s State Parks, while working to update Ohio’s urban oil and gas drilling laws;
  • Joined with national environmental groups to oppose dirty coal plants before ERAC and in Federal Court;
  • Issued a veto request to Governor Strickland following the budget amendment that put unreasonable deadlines on ERAC that could hamper environmental protection, and joined attorneys from the regulated community to appeal ERAC’s implementation of the deadline mandate in state court.
  1. Legal Analysis

This year OELC drafted and published a series of articles ranging from scholarly law review articles to bar association magazines, to move the debate over important environmental and constitutional issues and show the depth and breadth of public interest environmental law in Ohio.  This year, OELC:

  • Took on barriers to citizen enforcement of environmental laws in “Environmental Enforcement and the Limits of Cooperative Federalism,” to be published in the next issue of the Duke Environmental Law & Policy Forum;
  • Tackled legal obstacles to carbon capture and storage in OELC’s article, “Reconciling King Coal and Climate Change: A Regulatory Framework for Carbon Capture and Storage” to be published Vermont Environmental Law Journal;
  • Defended the constitutionality of the Clean Water Restoration Act and a nationally recognized Debated Private Property Advocate in American Bar Association Newsletter; and
  • Questioned the validity and sincerity of SCR 13 and Ohio Senate’s movement to reaffirm the Tenth Amendment in the forthcoming Ohio Lawyer magazine published by the Ohio Bar Association.
  1. Legal Education

Yet, a major component of the Law Center is also to provide legal education and public interest experience to tomorrow’s environmental attorneys. It has always been and will continue to be a goal of the internship program to provide our interns with a well rounded understanding of not only environmental law, but the entire non-profit environmental advocacy organization experience.  In 2009, six law students gained such invaluable experience at OELC, and will go on to be great members of Ohio’s Environmental Bar.  Just read the reflections of OELC intern, James Madieros after his experience here.


In 2010, OELC will continue with our initiative started in 2009 of drafting legal research, analysis, and advocacy papers for both external scholarly and legal industry publications.

The OELC internship program will continue to grow so that we can fulfill our goal to provide tomorrow’s environmental lawyers with the experience and educational opportunities needed to be effective advocates for environmental and human health.

The Law Center will continue to pursue legal and administrative actions that further the overall goals, objectives, and mission of OEC. The Law Center will consider the following factors in determining whether to accept a case and become a full party:

  • Significance of the environmental impact
  • Likelihood of a “favorable outcome”
  • Possibility of establishing a legal precedent of statewide significance
  • Support of OEC members or member groups
  • Availability of funding
  • Degree to which the case fits the strategic plan of OEC

OELC will also increase its capacity to support and represent individuals, organizations, and communities around the state fighting to protect the air, land and water resources and human and environmental health of the state or their hometown.

Although OELC will be at the ready to protect Ohio’s air, land, and water resources and defend communities, groups and individuals quality of life as those issues arise  — OELC will focus its 2010 advocacy on three areas:

  1. Clean Energy and Carbon Management
  • The OEC will continue our efforts to enforce and fully Implement Ohio’s Energy Efficiency Standard.  The number and complexity of these cases will only increase, as utilities seek to establish and justify energy efficiency programs and provide monitoring and verification of their success in securing energy savings
  • We also will continue our involvement in each of the four utilities’ energy efficiency collaborative groups, to assist the utilities with developing and monitoring energy efficiency programs.
  • Work to make CCS a reality in Ohio, and to make Ohio the CCS model for the Midwest, and fully implement the recommendations in our CCS law review article.
  • Through state and federal law, policy maker education, and legal advocacy, work to stop water quality devastation by the use of coal slurry impoundments that destroy eastern Ohio rivers and streams and utilize more environmentally sound alternatives;  reform Ohio’s reclamation bonding  requirements which currently violate federal minimum requirements and leave a vast backlog of unreclaimed former mine land for the state to pay to reclaim (instead of the industry); and work to change Ohio’s water replacement laws to force coal companies to perpetually replace drinking water supplies for landowners ravaged by longwall mining.

2.  Clean Water Protection

  • Strategically File Citizen Enforcement Suits under the Clean Water Act.
  • Draft an “Ohio Clean Water Enforcement Report” to Highlight Inadequacies in Ohio’s Enforcement
  • Utilize Citizen Suits and an “Ohio Enforcement Report” as a Basis for Press and Public Attention Drawn to the Issue of Ohio’s Abysmal Record of Enforcement.
  • Use Lawsuits, Report, and Press Coverage to Urge Change with Both the Attorney General and OEPA vis-à-vis Enforcement
  • Empower Other Citizens and Citizen Groups to File Citizen Enforcement Suits;

3. Public Participation and Governmental Transparency

  • Work to make the legislative and regulatory process more accessible for the public;
  • Fight for change in procedures to allow the impacted communities and individuals effectively provide input and appeal or enforce environmental violations;
  • Make government accountable to its citizens;
  • Stop the contemptible practice of big industry using federal lawsuits to silence opposition and stomp on individual, constitutionally protected freedoms of speech and petition.

Don’t forget to make your 2009, tax deductible donation to OELC, NOW! It is support from people like YOU that makes our public interest work happen.

Thanks for following the Top Ten, and have a safe and Happy New Year.

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No. 2 — AMP proves that Dirty Power Does NOT Equal Cheap Power

In November of this year, AMP revealed it will abandon its plans to build a 960 MW coal plant (AMPGS) near Letart Falls in Meigs County. According to the statement, the company said the change in course was the result of an unexpected 37 percent increase in the cost to build the 1,000-megawatt plant, which was last estimated at $3.25 billion.

A total of 81 AMP member communities in Ohio, Michigan, Virginia and West Virginia were participants in the AMPGS project, which had been under development approximately six years as a pulverized coal (PC) facility with ammonia scrubbing emission control technology.  OEC, OELC and others opposed this proposal from the outset because they disagree with the coal technology choice made by AMP-OH, for reasons associated with organizational environmental protection mission, but also due to serious and sincere concerns with regards to future costs and operational flexibility.

The Ohio Environmental Council hailed the announcement by American Municipal Power-Ohio (AMP-Ohio) that it has canceled plans to construct a proposed pulverized coal-fired power plant on the Ohio River in Meigs County.

Ever-growing costs doomed the plant, as cost projections grew from $2.5 billion just two years ago to close to $4 billion, today.

According to Marc Gerken, AMP President/CEO, the years of opposition of ENVIRONMENTAL & CONSERVATION ADVOCACY ORGANIZATIONS (Please stop with the dirty name calling, Marc, we are advocates not activists) had nothing to do with the change of heart of AMP to turn from coal to natural gas. “Contrary to what the activist groups who have opposed this project will assert, this conversion is not the result of their opposition efforts, our position in upcoming permit appeals, or load loss by our members (as the project is designed to reduce existing market exposure rather than to address growth),” said Gerken.

We completely agree with Mr. Gerken. Environmental advocates do not cause plants to be scrapped or shut down, we are merely the conduits of the reasons why such an antiquated idea of pulverized coal plants and its 7 million tons of annual carbon dioxide emissions in a soon to be carbon constrained climate is too costly and too risky for the utility and for our planet.   The environmental, human health, and economic impacts stopped the plant, not lawyers, lobbyists, or community groups.


AMP – Ohio was the first utility in this state to build and utilize wind power.  AMP-Ohio is actively developing multiple hydroelectric projects in the region, pursuing the largest deployment of clean, renewable run-of-the-river hydroelectric generation in the country.  AMP-Ohio is also actively working on a very large and proactive energy efficiency resource package.  Now that the six-year plan to build an antiquated coal plant , AMP Ohio can get back to the business of doing what it does best — being a leader in renewable energy and energy efficiency in this state.

OEC expressed desire to create with AMP-Ohio a productive new model of project development, one where reasonable environmental advocates work in tandem with developers to move advanced coal projects forward, making community support, positive media, state and federal funding, and quick, limited-litigation permits far easier to achieve, has proven quite successful elsewhere, and is a promising prospect for Ohio. On this point we refer you to the work of the Clean Air Task Force and the Indiana Wildlife Federation and their collaboration with Duke Energy regarding the Edwardsport IGCC coal power project, which is moving ahead of schedule, will be given substantial state and federal support, and received with relative ease positive rulings and permits from Indiana regulators.

Such a partnership between AMP-OH and the OEC was our goal when we opened dialogue with AMP-OH in 2006., and we hope that is still an option as the new natural gas plant proceeds through the development process.

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The meat of Ohio’s new clean energy law, S.B. 221, is an alternative energy portfolio standard and energy efficiency requirements. The alternative energy portfolio standard mandates that by 2025, 25 percent of the electricity sold within in Ohio must be produced from alternative energy sources, including 12.5 percent renewable energy sources like solar and wind farms. Meanwhile, the energy efficiency provisions will require utilities to implement measures that reduce electricity demand by 22 percent by 2025.

Enacted in July of 2008, S.B. 221 gives Ohio one of the most aggressive energy efficiency and renewable energy laws in the country. But throughout 2009, we have been engaged in a struggle to ensure that the bill’s affirmative requirements are enforced and that Ohioans benefit from the cleaner air they can bring.  

Biggest Win in 2009: Helping Draft Ohio’s Aggressive Clean Energy Rule Set

The biggest victory of 2009 has been the implementation of the rules associated with S.B. 221. While the statute itself outlines many of the affirmative requirements–such as the energy efficiency and solar energy benchmarks that utilities must meet each year–the PUCO has the legal authority to draft rules expanding upon on how the statute will be interpreted and enforced by the Commission. (For example, the rules will determine exactly what measures utilities may count as “energy efficiency” and the manner in which efficiency will be credited.) Therefore, the rulemaking process became a top priority of ours–almost as high a priority as working pass the statute itself.  

In the last six months, we’ve submitted written comments to the PUCO, intervened in rulemaking cases, negotiated with Commission staff and members of the General Assembly, and worked with partners like the Ohio Consumers’ Counsel to ensure that the PUCO promulgated a good set of rules, one that will markedly improve the air quality in Ohio. The full S.B. 221 rule set has just been finalized, and overall we are happy that the rules conform to the intent of the law.  

Another of our most significant legal victories at the PUCO came just last week when the commission granted our Motion to Dismiss in a case in which an electric utility was seeking to avoid the energy efficiency and demand reduction benchmark requirements of S.B. 221. As a result of the Commission’s decision, electric utilities will not be able to count actions taken before the effective date of the statute to meet their efficiency benchmarks. In other words, the Commission has told utilities that they must undertake NEW energy efficiency programs. 

(Click Here to Read OEC’s Press Release on the Dismissal.)

Outlook for 2010: A Renewed Legal Battle to Enforce S.B. 221

While some utilities have made a good faith effort to comply with S.B. 221–see, for example, our settlement with American Electric Power–others are intent on fighting tooth and nail to avoid the law’s mandates. To date, the OELC has intervened in over 30 cases to ensure that all utilities comply with the law.  

For example, we are involved in litigation to make sure that utilities cannot obtain waivers–or avoid altogether–for their renewable energy requirements without a real showing of hardship. We’re also working hard to make sure that only new energy efficiency programs count towards a utility’s benchmark obligations–as the statute intends. Finally, in the coming months, we’re going to take a closer look at the rules regarding biomass-based generation to make sure that those fuel sources are truly renewable. 

As one of the chief enforcers of the energy efficiency, renewable energy, and demand reduction components of S.B. 221, the OELC is on the front lines in the battle against climate change. Through our legal advocacy, we are making sure that all electric utilities comply with the law, as the legislature intended, and that Ohioans will be able to enjoy cleaner air in the future.  

In 2008 and 2009, we helped push through a good law and a good rule set, and we had several major legal victories at the PUCO. In 2010, however, we may have an even tougher battle ensuring that the standards are fully enforced.  

To help support our efforts to fight for clean air at the PUCO, you may donate to the OELC securely online.

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The International Climate Conference held in Copenhagen this month yielded a tentative agreement from the 193 participating countries, including the United States, to begin reducing GHG emissions to mitigate the climate crisis. But it’s not clear exactly how the U.S. will achieve the reductions that have been pledged at Copenhagen. Basically, there two very possible approaches: EPA rulemaking under the Clean Air Act or Congressional legislation, most likely in the form of a cap and trade bill. (A third, less likely, scenario is one in which the President would issue an executive order or an executive agreement mandating reductions.)

Let’s take a closer look at these two more likely scenarios. President Obama’s EPA appears ready and willing to regulate GHGs in the event that Congress does not pass a climate bill this year. Armed with the authority to do so as a result of a 2007 Supreme Court decision, Massachusetts v. EPA, the agency is preparing to implement rules that will regulate GHG emissions using Title II of the Clean Air Act. With its recent endangerment finding, the EPA has said that GHGs such as CO2 are, in fact, a danger to public health, which means that GHGs can be regulated under the CAA. The agency has used its Title II authority to implement new fuel efficiency requirements for motor vehicles, and the agency may also attempt to regulate stationary sources such as power plants. Under this approach, EPA would required to prescribe a unique pollution limit to thousands of individual emitters, on a source by source basis.  This approach would result in emissions reductions, but it could be extremely difficult to implement.

However, the most logical and efficient way to regulate global warming pollutants in 2010 is through a comprehensive climate bill that includes an aggressive “cap and trade” system. A cap and trade approach would establish a clear national limit—a “cap”—on the amount of GHGs that could be emitted in the United States. Major emitting facilities such as power plants and other large industrial sources would be allocated tradable emissions credits–which would set the maximum amount of allowable emissions. (The sum of these emissions credits would equal the national cap.)

The advantages of cap and trade legislation are many. First, there is the certainty of a definite cap on national emissions. Second, because emissions credits can be sold to other emitting sources, companies will have a financial incentive to reduce emissions as much as possible. It’s a market-based approach that is favored by many utilities and other industry. Finally, the cap structure would be an economy wide regulation, unlike rulemaking under the CAA which would attempt to reduce emissions on a source by source basis.

As we discussed briefly in our December 24 post, each of these approaches would face legal challenges, which could reach the U.S. Supreme Court. EPA regulation could be challenged as exceeding the scope of the agency’s or Congress’s authority. A challenge to EPA rulemaking, for example, could re-open Court’s 5-4 decision in Massachusetts v. EPA, which is the basis for the agency’s ability to regulate GHGs. Meanwhile, a climate bill could be challenge on a myriad of grounds, including as an unconstitutional use of Congress’s commerce clause power.

In sum, environmentalists may well have two battles to wage in 2010: 1) implementing climate change regulation and then 2) defending it at the U.S. Supreme Court.

Click Here to Read a recent OEC article on Cap and Trade Legislation in EcoWatch Journal.

Read our statement on EPA’s decision to use its CAA authority to increase fuel standards for vehicles

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No. 5 – Lake Erie Boundary Dispute decision – “a trifecta of injustice” for Ohio’s natural resources, its people, and its Top Cop.

In the December 2007 Lake County Common Pleas decision in State ex. rel. Robert Merrill v. State of Ohio, the court  redefined the boundary separating public and private property along the Lake Erie shoreline from the ordinary high water mark to the point at which the water meets land from moment to moment—effectively barring citizens from the shores of Lake Erie unless they are in the lake itself.  The 70-plus page decision concluded with a “splitting of baby” ruling stating that the Plaintiffs were not right, the Defendants were not right, so the ruling is somewhere in the middle.

After such tan affront to the law, the Ohio Environmental Council (OEC), National Wildlife Federation (NWF), and State of Ohio appealed the decision to the 11th District Court of Appeals.  Over a year and a half passed before the Appeals Court issued its decision in August of this year – and what a decision it was:

1. The Boundary Begins at the Moving Waters Edge (read OELC’s Analysis on this point)

The Court 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.

2. The people of Ohio Lose Legal Counsel (read OELC’s Analysis on this point)

Further, the Appeals Court ruled 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.

What is equally troubling is that the 11th District Appeals Court reached this decision through pure judicial activism—by unilaterally deciding that the meaning of the Revised Code 109.02 is somehow different from the text of that section.  The court has attempted to constrain the role of the Ohio Attorney General—an independently elected official—by fiat.

What is more, in addressing the role of the Attorney General in its decision, the court took the unusual step of ruling on an issue that was not raised by either party.  Referred to as a “sua sponte” decision, the act of ruling on an issue not raised by the parties at trial is generally frowned upon by courts.

A Brief Background on Merrill

The court case—known as Merrill vs. State of Ohio—revolves around ownership of the strip of land between the lake’s ordinary high water mark and the water’s edge, when that land is not covered by water.

Some private property owners adjoining the lake claim ownership through various deeds to various points offshore, including some which claim extent to the international boundary with Canada.  The Attorney General and wildlife and nature groups cite state law confirming state ownership to the ordinary high water mark.

The property owners sued the state in 2005 after several unsuccessful attempts to get the General Assembly to amend Ohio law in the first half of the decade. Lawmakers decided against changing the law, in part because of opposition from the ODNR under then Ohio Gov. Bob Taft.

The National Oceanic and Atmospheric Administration, which oversees state coastal management programs, advised the ODNR in 2005 that the proposed legislation would grant upland owners “the unabridged right” to fill submerged lands or construct docks, wharves, and other structures along the shore without state oversight.

The OEC and NWF, in 2006,  intervened in the lower court case to protect the interests of their members in the access to, and protection of, Lake Erie and its shore.  The groups’ intervention was also based on a fear that the Ohio Department of Natural Resources, and the Governors’ office may take a different view or posture after the 2006 Gubernatorial Election. It was a wise decision . . .

After Gov. Ted Strickland took office, (and while the Court of Common Pleas was deliberating the case), on July 13, 2007, he announced that the ODNR no longer would require a lease for any shoreline structure.  He also stated that the ODNR no longer would contest the court case.

The then-Attorney General, Marc Dann, declared that he would remain in the case, representing the State of Ohio and its citizens and defending the Lake Erie public trust doctrine.  Interim Attorney General Nancy Rogers continued to represent the State of Ohio in the case after Dann left office in 2008.

Outlook 2010

Next year, OELC expects the Supreme Court of Ohio to take up this case for final resolution.  The complete defiance to Ohio Supreme Court caselaw as appeared in the Appeals Court decision, and the affront on the laws of man, laws of nature, and laws of common sense necessitates a strong reversal by the Court.

The lower courts’ fictitious ruling that  boundary between privately-owned upland property and the Lake Erie shore is the point where the water touches the land—a movable boundary that advances and recedes with Lake Erie’s ever-changing water level – must be overturned.  If left unchallenged, the finding would outlaw families and anglers to stroll or fish along the dry beach bordering the water’s edge and would allow upland owners to claim ownership over artificially filled bottomlands.

On three separate occasions (in 1878, 1916, and 1948), the Ohio Supreme Court has referenced the ordinary high water mark as the boundary.  On any given day, the location of driftwood, changes in vegetation, and the shelving of sand mark that approximate spot.  Finally, common sense dictates that the lake boundary cannot be a moveable one that shifts up and down with periods of high or low lake levels.

The Ohio Supreme Court has ruled in most unambiguous terms that the state can never abandon the lands of Lake Erie that it holds in trust for the people of Ohio and that upland owners have no title beyond the natural shore line.  We hope the current Supreme Court ultimately will respect the precedence established by its predecessors and once again recognize the ordinary high water mark as the landward boundary of Lake Erie.

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No. 6 – Back-room Budget Bill Amendments, Violations of Due Process, Industry siding with Enviros, two trips to court, and back to status quo at ERAC

The saga began with a Budget Bill Conference Committee amendment mandating the Environmental Review Appeals Commission (ERAC) to issue final orders under strict deadlines. It was one of those amendments that purposefully was slipped in under the radar, hopefully not to spark too much attention.  It sent folks at OELC reeling to determine what would be the practical impact, the legal effect, who was behind it, and who would be advantaged by it?  Needless to say, it was obvious that the language was unworkable, impractical, and would only lead to disaster.  

The language read: 

The commission (ERAC) shall issue a written order affirming, vacating, or modifying an action pursuant to the following schedule:

(1) For an appeal that was filed with the commission before April 15, 2008, the commission shall issue a written order not later than December 15, 2009.

(2) For all other appeals that have been filed with the commission as of October 15, 2009, the commission shall issue a written order not later than July 15, 2010.

(3) For an appeal that is filed with the commission after October 15, 2009, the commission shall issue a written order not later than twelve months after the filing of the appeal with the commission. 

The language is silent on what happens if ERAC fails to adhere to the deadlines.  The language will either  create a right to file an action against ERAC to compel it to issue a decision, or when the decision was made in time, in many cases result in an automatic appealable argument of arbitrary and capricious based on the short amount of time ERAC would have to hold a hearing and decide.

As a result, Ohio Environmental Council filed a veto request to Governor Strickland requesting veto of ERAC review deadline: 

The appeals backlog that exists at ERAC is a function of inadequate resources; with the exception of the three ERAC commissioners, themselves, the ERAC has zero legal staff. This is the problem that must be addressed to resolve the backlog in a responsible way. The false “solution” offered by the amendment will only exacerbate the problem—to the severe determent of the public interest.

Yet, that request, and even followup calls with the Governor’s top lawyers, fell on deaf ears.  After further insight reconosince by OELC attorneys, it was revealed that the amendment was drafted by State Representative Matthew A. Szollosi (D-49th District) in conjunction with the Governor’s office. 

However, if the new statutory deadline was not bad enough for friends of environmental protection, ERAC began to issue its orders in each of its 300-plus cases due for a decision by December 15, 2009.  Typical hearings included discovery, motions and multi-day hearings followed by briefs.  In response to the imposed deadlines ERAC has cut out all discovery, limited hearings to one hour and will accept only five page briefs. The Commission had no choice, it had to comply and implement the deadlines, even if that meant to throw Due Process out the window.  

In quick reaction by the regulated community (who did not bat an eye when it was offered in the budget, filed a lawsuit in the 10th Appellate Court on behalf of over a dozen companies with forty appeals pending before ERAC.

OELC, along with the Natural Resources Defense Council and others,joined and filed a petition for a writ of mandamus in Ohio’s Tenth District Court of Appeals. 

After the Court of Appeals dismissed the action, the above parties (joined by many others) went to the Franklin County Court of Common Pleas.  There, 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 thanmandatory . 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 re-scheduled hearings in all pending cases — a monumental task only lead to more delays.

The most interesting part of the saga is that this dubious amendment was added to the budget bill for the sake of ONE permit — FDS Coke — that has taken years to get through ERAC, not because of the Commission taking too long, but because of the parties.  The current case has been effectively held up by FDS Coke’s attorneys not responding to a discovery request.  Coincidently, it was this very permit appeal, which third-party appellants (Harbor View and Sierra Club) won on procedural issues in June of 2007, which sparked a similar Budget Bill Amendment that allowed FDS and OEPA to modify the permit while it was being appealed. 


Unfortunately, this is not the last that we will hear from the General Assembly with regard to “reforming” ERAC.  Rumblings from the Statehouse are that Toledo based legislators want to speed-up ERAC.  Fortunately they have learned that you cannot just unfunded mandates on the Commission and every thing will be perfect — rumors are there will be increased funding.  Nevertheless, we implore the General Assembly to answer the question: What is broken with ERAC that staff and funding only can’t fix?

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At the end of every year, it is worthwhile to evaluate the decisions of the highest court in the land.  In 2009, there have been several disappointing decisions by the U.S. Supreme Court.  Several of these rulings will adversely impact environmental law and environmental protection, including decisions related to standing, fifth amendment takings claims, and the authority of agencies like the EPA to protect the environment.  But on a brighter note, this past year also saw the addition of a promising new associate Justice: Sonia Sotomayor, formerly of the Second Circuit Court of Appeals.

The Court’s First Term –Big Cases, Big Losses for Environmentalists

The Court’s 2009 term was a humbling one for environmentalists—or, as the New York Times describes it, “Environmental interests were trounced” in 2009[1]  In almost all of the major environmental cases decided in the 2009 session, the environmental parties lost.  Just to point out a few…environmental plaintiffs lost a challenge that would have protected endangered whales from military training exercises; the Court found new protections for violators of CERCLA, the federal law governing the cleanup of hazardous wastes; and another ruling will make it easier for polluters to foul the Alaskan sea.

But among the most consequential rulings was one that will allow the EPA to use a cost-benefit analysis when determining which measures companies must implement to protect the environment. Entergy Corp. v. Riverkeeper.  Cost-benefit analyses vis-à-vis environmental protection are sometimes troubling; while the effect of this case has not yet been felt, the decision could set a precedent allowing industry to avoid implementing advanced pollution control technologies because of their high cost.    

The Court also decided a case that may make it more difficult for citizens to challenge agency decision making. Summers v. Earth Island Institute was a case in which citizens challenged changes to the notice and comment procedures of the U.S. Forest Service.  But the major legal issue became whether the citizens even had standing to participate in the case.  The Forest Service had argued that the plaintiffs had not proven that they had suffered a “concrete harm” or shown a direct stake in the outcome of the case sufficient to allow them to sue.  In a 5-4 decision, the Court denied standing to the citizens, preventing them from challenging the actions of their government.  

Decisions such as Summers that limit the right of the public to challenge decisions or enforce environmental laws are especially dangerous in our democracy.  A strict interpretation of citizen standing requirements, such as the one articulated by Justice Scalia in Lujan v. Defenders of Wildlife, makes it more difficult for citizens to challenge actions that harm the environment.  For example, Justice Scalia’s narrow view of standing—which requires a plaintiff to make a stringent showing of direct, individualized, and substantial harm—would prohibit a myriad of citizen and environmental organizations (such as the OEC) from suing violators of federal environmental laws like the Clean Air Act or the Clean Water Act.   

Sonia Sotomayor

Despite one of the most disappointing years in recent memory, there is at least one bright spot for environmentalists: Justice Sonia Sotomayor.  In each case in which she participated, Sotomayor sided with the environmental cause.  Sotomayor has also proven herself to be an active questioner in oral arguments, and her sharp legal mind will be a valuable addition to the Court for decades to come.

Outlook for 2010: A ‘Stalemate’ at Best, With the Climate Change Being the Big Unanswered Question   

The fundamental makeup and decision making of the Court is unlikely to change in 2010.  Four Justices—Breyer, Ginsburg, Stevens, and Sotomayor—are likely to vote to uphold citizen standing and allow administrative agencies to exercise broad powers to protect the human health and the environment.  Conversely, another bloc of four—Justices Scalia, Thomas, Alito, and Chief Justice Roberts—will take an opposite approach, voting to limit citizen standing, to decrease the power of administrative agencies to protect citizens, and uphold private property rights at the expense of public health and environmental protection. 

Because each bloc—sometimes referred to as the “liberal” and “conservative” wings of the Court—will cancel out the other, moderate Justice Anthony Kennedy will continue to hold immense power.  Kennedy has a mixed record on environmental decisions; while he sided with the majority in the landmark 2007 decision Massachusetts v. EPA and has often shown an independent streak, he appeared to move closer to the conservative wing of the Court in 2009.     

The biggest challenge lurking for 2010 will likely be climate change, and Kennedy’s swing vote would be tested in litigation on this issue.  The EPA has recently found that global warming pollutants such as carbon dioxide constitute a danger to public health, and the agency is preparing to implement rules regulating these pollutants under the Clean Air Act.  Although President Obama has said that he would prefer Congress to pass climate legislation, his EPA appears ready and willing to regulate greenhouse gases in the event that Congress fails to act.

Rulemaking by the EPA would almost certainly be challenged on a number of grounds.  Most importantly, such a suit would test the fragile majority in Massachusetts v. EPA, a 2007 in which the Court held that the EPA does have the authority to regulate carbon dioxide and other climate change pollutants through under the Clean Air Act.  That decision was a 5-4 vote, with Kennedy’s being the decisive one.  Finally, even if Congress does pass one of the climate bills currently being debated, the constitutionality of that legislation would be challenged on a myriad of legal grounds.      

In sum, in 2010 environmentalists should watch the Court—and Justice Kennedy—with bated breath.


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