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?