Archive for January, 2010

PRESS RELEASE:

(Columbus, OH)—A group of sportsmen and conservation organizations is asking the Ohio Supreme Court to overrule a controversial decision by a lower court which threatens to hobble the authority of the Ohio Attorney General to protect Ohio’s natural resources.

On January 22nd, the groups—Ohio Bass Federation; Izaak Walton League of America, Ohio Division; Rivers Unlimited; Ohio League of Conservation Voters; Green Environmental Coalition; and Buckeye Forest Council—filed an amicus curiae (“friend of the court”) brief requesting the Ohio Supreme Court to overturn a decision by Ohio’s Eleventh District Court of Appeals. The appeals court decision removed the Ohio Attorney General from a class-action lawsuit involving protection and public access to Ohio’s 312-mile Lake Erie shore.

The brief emphasizes how protection of Ohio’s natural resources, including the Lake Erie coast, depends on enforcement provided by the Ohio Attorney General.

The appeals court, when ruling on State ex rel. Merrill v. Ohio Department of Natural Resources, took the unusual step of removing the Ohio Attorney General from the case, finding that the Attorney General had no standing to participate in the appeal.

In removing the AG from the case, the Eleventh District found that “The Ohio Attorney General may only act at the behest of the governor, or the General Assembly.” However, the court’s decision on this point was a misreading of Ohio Revised Code Section 109.02, which defines the powers of the Attorney General. Nowhere in the revised code is the AG’s authority so limited, and, moreover, the Ohio Attorney General has long had common law powers to act as the top lawyer and watchdog for Ohio citizens.

While this question has arisen in the context of the Ohio Lake Erie shoreline court case, the Ohio Supreme Court’s ruling on this question could have a broad impact on the Ohio Attorney General’s authority and independence to represent the interests of the citizens and sportsmen of Ohio on virtually any subject, including this and any other natural resource conservation or environmental protection issue.

“Conservation organizations and their members have a special interest in assuring that the Ohio Attorney General has the power to take on polluters and protect our natural resources—even when not asked to do so by the governor or the legislature,” said Will Reisinger, a Columbus lawyer acting as counsel for the six organizations.

“The fundamental question we want the court to answer is, ‘Does the Attorney General work for the governor, or does he work for 11 million people of Ohio?’”

“With this case, the Supreme Court can set a precedent that protects the independence or the Ohio Attorney General, making sure that he has the power to represent 11 million Ohioans and their natural resources,” said Reisinger.

Read the Amici Curiae Brief: State ex rel Merrill – Brief of Amici Curiae Ohio Bass, et al

UPDATE: Groups file response to motion to strike brief of amici curiae

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There are a few updates on the Lake Erie Shoreline case, now pending before the Supreme Court of Ohio. The case, State ex rel. Merrill v. Ohio Department of Natural Resources, concerns the extent of the “public trust doctrine” as it pertains to the Lake Erie shoreline. Parties to the case include the Ohio Environmental Council, the National Wildlife Federation, and the state of Ohio.

Courts have traditionally held that Lake Erie is held in trust by the state for the use and benefit of all Ohioans—meaning, among other things, that citizens have the legal right to walk the beaches and access the water. However, the centuries-old doctrine was overturned by a recent ruling of Ohio’s Eleventh District Court of Appeals. The Court of Appeals, overruling numerous Ohio cases, found that the public trust portion of Lake Erie only extends to the waters edge, and that citizens do not have the right to access all beaches or waters of the Lake.

The appeals court also stripped the Ohio Attorney General, who was appealing on behalf of the state, of standing in the case, finding 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 Supreme Court has called for preliminary briefs to address this specific issue—whether the Attorney General has standing to participate in the appeal—before ruling on the property rights portion of the case.

Already, there is at least one wrinkle to the case. Because the Supreme Court’s decision could impact the extent and value of a shoreline owner’s property, there could be a conflict of interest for any justice who also owns lake property. Chief Justice Moyer, who owns a condiminium on Catawba island, disclosed his property ownership as a potential conflict of interest. So far, Moyer is the only justice to disclose a potential conflict.

Although it does not appear that Moyer’s property will present a conflict of interest, “We would hope that any other of the justices would follow his lead as well to disclose any possible conflicts,” said Trent Dougherty, OEC staff attorney and Director of the OELC. We should know within the coming days whether other justices choose to disclose any lakefront property ownership.

We are currently working on our briefs addressing both questions: whether the AG has standing to participate in the appeal (the answer is “yes”) and whether the Court of Appeals erred in eviscerating the centuries old public trust doctrine (our answer, again, is “yes”).

Click here to read our press release on the appeals court decision

Read the OELC’s response to the AG’s dismissal

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Senate Bill 221’s alternative energy standard mandates that 25 percent of the power sold in Ohio must be generated from “alternative energy sources.” Further, the law requires utilities to meet half of the alternative energy standard—12.5 percent—with “renewable energy resources,” including wind, solar, hydro, and biomass-based generation.

But the resource with the most potential—biomass—may also be the one that is the most difficult to regulate.

Biomass material includes resources that were recently living–such as wood chips or switch grass. Using biomass to generate the heat needed to produce power can numerous emissions benefits. In theory, when compared to coal, biomass combustion for electricity generation can achieve significant reductions in sulfur dioxide as well as in net CO2 emissions. There is also a near large supply of biomass waste, such as fallen trees, grass clippings, or manure.

But there could also be some potential problems in utilizing biomass as a major source of fuel. Most importantly, it is not clear under the PUCO’s current rules that using biomass will result in reduced emissions.

Because there are unanswered questions, we’ve intervened in a few of the major biomass applications submitted by Ohio utilities. Among the questions that we want to be answered are: what is the source of the biomass material; what standards will be used to ensure that the material is collected or harvested in a sustainable manner; and, most importantly, what will be the total carbon output from a biomass-based project?

These questions are critical because, in our opinion, the renewable energy requirements imply that the generation must meet a sustainability test. That is, a utility should not receive renewable credit for utilizing a fuel procurement process that contributes to widespread deforestation without any net reductions in carbon emissions.

Among other things, the PUCO should implement a “sourcing standard,” which would require the harvesting, transport, and combustion of biomass material to be conducted in a sustainable way. This would be a way to ensure that biomass-based energy comes from is truly renewable, resulting in reduced carbon and other air emissions.

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Be sure to check out the latest issue of Ohio Lawyer magazine, published by the Ohio State Bar Association, where we take on the fringe legal movement that is seeking to “reaffirm” the Tenth Amendment to the U.S. Constitution.

The movement, which has manifested itself in Ohio recently, seeks to significantly limit the power of the federal goverment to do a myriad of things–including pass laws protecting human health and the environment. But, as we explain, this radical view of the constitution is both bad law and dangerous public policy.

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