Archive for June, 2011

When EPA acts, Citizens Enforcement Suits (not Common Law Action) is the only remedy  according to Supremes

(Posted by E. Camille Yancey, Staff Attorney, Ohio Environmental Council; and Karrie Pratt, Law Intern, Ohio Environmetal Council)

Monday, the Supreme Court, in an 8-0 decision written by Justice Ginsburg, held that EPA’s authority to regulate GHGs under the Clean Air Act preempts the plaintiffs’ federal common law nuisance claim. Connecticut, et al. v. American Electric Power Co., et al., Supreme Court Docket No. 10-174. Justice Sotomayor recused herself due to her participation in the Second Circuit decision.

The plaintiffs/respondents in this case are eight States, the city of New York, and three private land trusts. The defendants/petitioners are four private utilities and the Tennessee Valley Authority.

The issue before the Court was whether the plaintiffs can maintain federal common law nuisance claims against the carbon dioxide emitters, thus holding the defendants jointly and severally liable for global warming.

In 2007, the Supreme Court held that the Clean Air Act gives the EPA the authority to regulate emissions of carbon dioxide and other greenhouse gases after a finding that GHGs endanger human health. Massachusetts v. EPA, 549 U.S. 497. The EPA has since determined that there are dangerous results of high levels of greenhouse gas emissions including an increase in heat-related deaths; coastal inundation and erosion caused by melting icecaps and rising sea levels; more frequent and intense hurricanes, floods, and other extreme weather events that cause death and destroy infrastructure; drought due to reductions in mountain snowpack and shifting precipitation patterns; destruction of ecosystems supporting animals and plants; and potentially significant disruptions of food production. The plaintiffs claimed the defendants are the five largest emitters of carbon dioxide in the United States, and their collective annual emissions of 650 million tons constitute 25 percent of emissions from the domestic electric power sector, 10 percent of emissions from all domestic human activities and 2.5 percent of all anthropogenic emissions worldwide. The plaintiffs sought injunctive relief which the Court declined to grant. The Court explained that the Clean Air Act clearly provides a means to seek limits on emissions of carbon dioxide from domestic power plants. This is the same relief the plaintiffs sought by invoking federal common law.

The Court stated that there is no room for such a “parallel track,” and relief must remain in the hands of the EPA. The Court stressed that Congress delegated the decision of whether and how to regulate carbon dioxide emissions from power plants to the EPA— this delegation is what displaces federal common law. The Court further explained the difficult balance between the environmental benefit and the Nation’s energy and economic needs. The Clean Air Act explicitly entrusts such “complex balancing” to the EPA, who are more equipped to tackle such complex issues than the courts. The decision stated the EPA was better able to decide the issue because the EPA is an expert agency that has the ability undertake scientific studies, convene groups of experts for advice, issue rules under notice-and-comment procedures and seek the counsel of regulators in the States, whereas the federal district judges are confined by a record comprising the evidence the parties present. The Court’s refusal to grant the plaintiffs’ injunctive relief is not a total loss in the fight to curb GHG emissions. The decision strongly emphasizes the EPA’s role in regulating GHGs. It puts more pressure on the EPA to take action and implement regulations that better control emissions from power plants. The Court explicitly states the Act provides a means for “any person” to force emissions limits of carbon dioxide from domestic power plants through a private civil enforcement action in federal court if States (or EPA) fail to enforce emissions limits against a regulated source.

Although the Court held that seeking injunctive relief to set GHG emissions limits, was not proper, be sure to keep an eye out for the pending 9th Circuit appeal GHG case which will decide whether a case for monetary damages may be allowed. Native Village of Kivalina, et al. v. ExxonMobile Corp., No. cv-08-1138 (N.D. Cal.).

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Provision provides Incentive to Shred Controversial Public Records

(Posted by Trent A. Dougherty, Director of Legal Affairs)

For decades the Public Records Act in Ohio has held governmental officials accountable by making records of state and local government actions fully open and accessible. To put necessary teeth in the Public Records Act, the Revised Code Section 149.351 not only bans the destruction of public records (except in accordance with duly adopted retention schedules), but provides for civil penalties, citizen enforcement, and recovery of attorneys’ fees.  The existing law has served as an effective deterrent against destruction of these records through the risk of significant civil penalties.  The cases brought under this law generate necessary public exposure while allowing aggrieved citizens to recover their fees along with sufficient penalties to cover their personal expenses and the actual costs of suit.

Yet, without a single committee hearing, tucked inside of the voluminous Senate Finance Committee Omnibus Amendment to the state budget, is an amendment that can spell the death of public records as we know it.

The budget provision, which mirrors similar provisions in SB 178 (Seitz, Wilson), will:

  • Provide a cap of $10,000 on all judgments against illegal public records destruction;
  • Put a cap on attorneys fees;
  • Tighten standing to bring suit under the law;
  • Put a four years statute of limitations from the date of illegal destruction;

One of the biggest deterrents to governmental destruction of controversial public records, and one of the most important components of governmental transparency, is enforceable civil penalties against disreputable officials that illegally destroy public records.  Those civil penalties would never be sought if aggrieved individuals performing this public service did not receive their reasonable attorneys’ fees.

Under this new provision, local governments now have a statutory incentive to burn, shred, and desecrate records, and merely have to pay a $10,000 penalty.  Yet, even that penalty is speculative considering if and whether there is someone who is willing (or can afford) to enforce such a breach of the public trust in court.

The Senate amendments are overkill — they effectively repeal the law by making sure no one will enforce it.

The justification for such a provision has been that there is a cottage industry of nefarious attorneys seeking to bankrupt small towns across Ohio using the Public Records Act. There is a single case, currently in front of the Ohio Supreme Court, where a multimillion dollar verdict was handed down from lower courts.

On Friday, the Ohio Environmental Council, The Ohio Newspaper Association, the Ohio Association for Justice, and the Ohio Employment Lawyers Association delivered a joint letter urging the Ohio General Assembly to delete this provision from the budget bill.  The Groups object to the proposed changes to existing Section 149.351 of the Revised Code for the following reasons:

1)  The justification for rewriting the law is based on misleading information;

2)  The existing law is working as intended:  to help enable the public to hold rogue government officials accountable for misfeasance, malfeasance, and nonfeasance;

3)  The cap placed on civil penalties and attorneys’ fees will preclude all but a few well-funded plaintiffs from pursuing public records cases;

4)  Huge civil penalties are rare.

The letter explains how unnecessary such an over reach actually is: “In the 26 years this statute has been the law of Ohio, the Ohio Supreme Court has only once allowed a significantly large civil penalty and that was in a case involving the intentional destruction of overtime records which prevented city employees from proving how much unpaid overtime they were owed. Currently, despite the claims of those who advocated the budget bill changes to this records protection law, there are no multimillion dollar awards which have survived appellate scrutiny.”

The fears are unwarranted, the reasoning is unjustified, the substance is unfair, and the process is undemocratic.  If a change is going to be made to drastically reduce the effectiveness of the Public Records Act, then there should be a full and public debate.  If the upcoming ruling of the Ohio Supreme Court reveals defects or loopholes in this statute, they can be readily corrected, through a complete legislative process.

Simply, dismantling the Sunshine Laws should at least be done in the light of day, not in the darkness of a budget amendment; and not provide a clear enticement to destroy controversial public records.

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Full Senate Set to Vote Today

(Posted by Trent Dougherty, Director of Legal Affairs)

Despite the fact that opponents of the state park drilling bill came out in full force for the eighth hearing in a row, HB133 passed the Senate Agriculture and Natural Resources Committee, yesterday,  6-3.  Unlike the party line vote in the House Committee, one Democrat, Sen. Jason Wilson (Columbiana), crossed party lines to support the bill after securing an Amendment to require 30% of the proceeds from a park drilling lease to be earmarked for that specific park.  This vote was offset by Republican Sen. Tim Grendell’s (R-Chesterland) vote against the bill.

In an even rarer move, after announcing he would be leaving the Senate at month’s end for a job as President of the Ohio Gas Association — a natural gas trade organization which represents more than 30 local distribution companies and cooperatives,   and the vast majority of all intrastate and interstate gas transmission firms —  Senator Jimmy Stewart (R-Albany) continued to sit on Committee and ask questions of the opponents of the bill.  However, when it was time for amendments and the final vote, Stewart was replaced on the Committee by Senator Kris Jordan (R-Powell).

The fact that the Senator Stewart will soon be representing a trade association that will obviously benefit from state gas drilling, did give, at least, the perception of a conflict of interest.  While fear of a true conflict was not evident, the Committee leadership’s decision to replace Stewart was the right move.  Grumblings of potential complaints to the Joint Legislative Ethics Commission by some of his constituents who were in the crowd during the Committee recess, however, may also have played a part in sparking such a move.

AMENDMENTS

Sen. Tim Schaffer (R-Lancaster), who represents the district that is home to Hocking Hills State Park, Tar Hollow State Park and Strouds Run, secured an Amendment requiring the new Oil and Gas Leasing Commission to publish public notices about any lands nominated for exploration, and requiring the Commission to consider public input on nominations to lease state lands.

While, in OEC’s opinion, the legislation is still fatally flawed, Senator Schaffer and the Committee should be commended for finally giving a voice to the people in this process.  If the industry-dominated Oil and Gas Leasing Commission will be able to pick and choose where drilling is to occur in our state parks, the people of Ohio – who use these parks and who are the true owners of these parks – should have, at least, the ability to express opposition or even support for drilling in OUR parks.

However, not all amendments fared as well.  Senator Grendell offered 16 separate amendments to strengthen the protections of state land; protect Lake Erie; and make the industry and its Oil and Gas Leasing Commission more accountable to the people.  Similarly, Democratic Sens. Joe Schiavoni (Austintown) and Edna Brown (Toledo) sought several other amendments that would have provided for similar protections of our state parks and the other sensitive state lands, all of which were tabled.

State Park land accounts for a mere 115,300 acres – 0.43% of Ohio’s 26,449,920 total acreage.  This means that over 99.5% of the state’s public and private land is already available for oil and gas drilling (TODAY).  There are places that are just meant to be off limits to industrial activity.  For generations, the Ohio General Assembly has promised that our State Parks are just those types of protected places.  A vote for this bill breaks that promise.

Governor John J. Gilligan, in the 1970’s, went down as the Governor who closed the parks, albeit temporarily.   Will this Administration go down as the one who privatized the parks (and for 12.5 cents on the dollar, nonetheless)?  We will see soon enough.  The full Senate is poised to vote on the legislation, today, at 1:30 pm.

See the session LIVE.

 

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Camille Yancey and Trish Lanahan join Ohio Environmental Council

Adding Ohio Environmental Council (OEC) is excited to announce it has hired E. Camille Yancey as a Staff Attorney with OEC’s William W. Ellis Ohio Environmental Law Center.

E. Camille Yancey, Staff Attorney

As Staff Attorney, Camille will focus on:

  • clean water litigation, and related legislative and policy work; and
  • energy efficiency and renewable energy, including representing the OEC in cases before the Public Utilities Commission of Ohio.

Camille brings an unbridled passion for public interest environmental law and a strong knowledge base in the Clean Air Act and the Clean Water Act. This combination will make her an important asset not only to OEC, but to the future of Ohio’s environment.  — Trent Dougherty, OEC Director of Legal Affairs

Camille contracted with OEC’s Ohio Environmental Law Center as Of Counsel to OEC for several months before being hired full-time. Her other legal experience includes her work as an attorney for the Law Offices of Pete Precario as well as internships with Ohio Environmental Protection Agency and the Ohio Attorney General’s Office.

Camille received a J.D. with an environmental law concentration from Capital University Law School. She is originally from Dayton.

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Adding to its status as a leader in advocacy for a cleaner energy future for Ohio, OEC has also recently hired Trish Lanahan as Director of Clean Energy Campaigns and Legislative Affairs Associate.

Trish Lanahan, Director of Clean Energy Campaigns and Legislative Affairs Associate

Trish will oversee energy efficiency policy and initiatives. She will also be responsible for building relationships with business, political, and environmental leaders and stakeholders to promote clean air and energy campaigns.

Trish’s most recent position was legislative liaison in the Director’s Office at the Ohio Department of Natural Resources.

Trish is a graduate of Wittenberg University and has been active in the grassroots not-for-profit arena since graduating college.

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Attorneys from the Ohio Environmental Council’s Ohio Environmental Law Center (OELC) team with seasoned environmental plaintiff attorney, Rick Sahli, to represent Sierra Club in CWA citizen suit

Today, in a press conference, the Sierra Club announced it will file a 60-day notice declaring its intent to sue Franklin County for violations of the Clean Water Act involving sewage discharges.     Franklin County and its seventeen townships have violated and continue to violate the Clean Water Act in two separate ways:  1) through illegal discharges of non-stormwater pollutants from the storm sewer systems they own, operate and regulate; and 2) by violating the requirements of a storm sewer system permit pursuant to the National Pollutant Discharge Elimination System (“NPDES”) provisions in Section 402 of the Clean Water Act, 33 USC §1342, in which Franklin County and the listed townships are co-permittees.

According to the 60-day notice, “the illegal discharges consist of non-stormwater, dry weather discharges of a variety of pollutants including, but not limited to, fecal coliforms, such as E. Coli and fecal streptococci, and nitrogen and phosphorus compounds.  These pollutants are being discharged from more than 1090 separate outfalls that daily discharge from Franklin County’s storm water sewer system into multiple surface water bodies” Illicit discharges of sewage from NPDES permitted storm water outfalls are pervasive, rampant and widespread in all major Franklin County waterways. Franklin County continues to illegally discharge human waste without providing warning to the public, putting the health of County residents in jeopardy.  The majority of these discharges are the result of failed home sewage treatment systems, which the County has neglected for decades. There are also seventeen co-permitted townships under the County’s permit, which are being named in the notice of intent to sue.

The Ohio Environmental Protection Agency (OEPA) reviewed Franklin County’s activities under its permit and identified a number of Clean Water Act violations, but the OEPA has yet to enforce any penalties for these violations.

“The County and its townships referenced in the 60 day notice are not solely to blame.  Our federal and state environmental protection agencies are the first line of defense to secure safe water and make sure that the laws to protect public health are enforced.  In this case, for fiscal or political reasons they have not,” said Trent Dougherty, Staff Attorney for OELC and co-counsel in this case.  “As the only other option, citizens like these must take the responsibility upon themselves to protect their communities.”

“Keeping sewage out of our streams is the most basic of government responsibilities.  Although the seeds for this problem may have been sown years ago through accelerated development, it is not something that Franklin County can continue to ignore,” said Ben Wickizer of the Ohio Sierra Club.  Unfortunately, suing appears as the only viable option because of Franklin County’s persistent failure to adhere to its permit and the OEPA’s and Franklin County Board of Health’s unwillingness to enforce regulations.

“Residents of Franklin County are having their health put at risk and their local waterways polluted. This lawsuit is the only way we can be sure the Franklin County will properly clean up the sewage in our streams,” said Sierra Club member Pat Marida, “This is the water that we play in, swim in, fish in, bathe in, drink and is essential to the quality of life in Franklin County”.

There are hundreds of known discharge points in Franklin County that are discharging dangerous pollutants into Ohio’s water.  The County has also failed to adequately notify residents about the pollution, erect signs warning citizens of discharge locations, and create a standardized public reporting system, which are all required by Clean Water Act.

The Sierra Club is seeking a federal court injunction with the hope it will create firmer mandates for the County to follow.  The Sierra Club would like the court to, among other things, prescribe an enforceable compliance schedule and explicit funding commitments; require completion of all permit requirements, such as proper warning signs, maps tracing discharge locations, and a report hotline; and assess civil penalties for the Clean Water Act violations that have occurred over the past five years.  The health of Franklin County’s citizens and water resources is at risk as a result of these illegal discharges; and it is critical that Franklin County seriously addresses this issue and complies with the requirements of the Clean Water Act.

Read more and view maps at http://ohiosierraclub.org/

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