Archive for September, 2011

(Posted by Trent A. Dougherty, Director of Legal Affairs, Ohio Environmental Council & Director of the William W. Ellis, Jr. Ohio Environmental Law Center)

As a public interest environmental and conservation advocates, we at the Ohio Environmental Law Center not only care about protecting Ohio’s air land and water, but also protecting your right to be part of the regulatory and political process.  Limits on parts per million of mercury or tons of CO2 are rendered meaningless if there are limits on participation of millions of citizens to be part of the governing process. 

In the coming weeks, the Joint Select Committee on Debt Reduction (or “Super Committee”) will be meeting to find $1.5 trillion in deficit cuts. This so-called “super committee” will have until November 23 to draft a proposal, which will see an up-or down vote in Congress after that.  If the committee deadlocks — if the Republicans and Democrats split on party lines, and no proposal is ever actually proposed — then $1.2 trillion in automatic, across-the-board cuts will be triggered.

The stakes are too high for such a powerful committee to operate out of the reach of public accountability.   Decision-making about our country’s fiscal future must be put back into light of day and out of the shadows.

The Super Committee-From

According to a recent Huffington Post article: “Of the six significant meetings the Super Congress has held, only two have been public — one to allow members to read prepared opening statements.” The Super Committee has has been lurking in the shadows.  The Committee held closed door meetings on back-to-back days; members and staff have been tight lipped on the direction of discussion; and the committee has no public meetings scheduled.

As the important issues of education and homeland security take their rightful place at the top of federal budget protection list, environmental protection, resource conservation, and public health stand firmly on the chopping block.  Further, as seemingly countless bills and appropriation riders have been introduced this session to eviscerate the Clean Water Act and Clean Air Act, it is clear that funding provided to protect environmental and human health and safety will be prime bargaining chips for the Super Committee.  Full transparency and accountability — including disclosure of lobbying of Super Committee members, political contributions to Super Committee members, and public meetings– is necessary to make certain that these health protections are not bartered away in the back hallways of Congress.

On September 7, 2011, Representative Rep. David Loebsack, [D-IA2] introduced H.R. 2860 to amend the Budget Control Act of 2011 to require members and staff of the Joint Select Committee on Deficit Reduction to disclose lobbying activities and campaign or member-designated political action committee contributions.   H.R. 2860 ensures that the work of the Committee is done before the American public and that those special who would influence that work are known online and in real time. Without it, there will be no way for citizens to truly be a part of one of the biggest decisions in American political history.  Kudos to Congressman Jim Renacci [R-OH 16] (Canton) for being the lone member of his caucus to stand up for transparency in this debate which touches the lives of all Ohioans and co-sponsor H.R. 2860.  Congressman Renacci was also one of the first on the Hill to call for transparency and accountability in the Super Committee process. Read Congressman Renacci’s letter.

While some meetings of this Committee should be private in order to accommodate candid negotiations, decisions of this committee must be out in the open as with any other governmental decision.  As John Wonderlich of the Sunlight Foundation noted, “Regarding open meetings, the super committee isn’t even living up to normal standards for committee openness, even though they’ve got extraordinary power.”

Thus, the Ohio Environmental Law Center urges: Congress to quickly pass H.R. 2860; the Super Committee to be open and transparent in its deliberations; and for all Ohioans and all Americans to be active participants in the process.  

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Supreme Court Reaffirms 1878 Decision Holding That State’s Trust Over Lake Erie Extends to the ‘Natural Shoreline’

After a half decade legal fight — a fight where:  Lakeshore property owners sued the state of Ohio and ODNR; where Ohio Environmental Council (OEC) and National Wildlife Federation (NWF) had to intervene to protect the rights of the public to walk the shore; where the ODNR left the case, but Ohio Attorney General remained to defend the case for the 11 million people of Ohio; and where the lower courts ruled that the boundary of the Public Trust is where the water meets the land at any given moment in time — The Ohio Supreme Court today returned the shoreline (and the law) to status quo.

In a 7-0 decision authored by Justice Terrence O’Donnell, the Court reversed a ruling by the 11th District Court of Appeals that lakeside owners’ property rights extend to whatever point on shore is in contact with the waters of the lake on any given day.

The court reaffirmed it’s over century-old decision, preserving the public trust doctrine as it relates to the state’s North Shore.  In fact, on three separate occasions (in 1878, 1916, and 1948), the Ohio Supreme Court has definitively ruled that the ordinary high water mark is the boundary of Ohio’s public trust.

The fourth time (2011) will be the charm, and forever protect the rights of the people and the quality of our Great Lake.  The Ohio Supreme Court has specifically ruled that the state can never abandon the lands of Lake Erie that it holds in trust for the people of Ohio and upland owners have no title beyond that natural shore line.

While the Court rejected OEC, NWF, and the State’s argument that the boundary line is “the ordinary high water mark,” the practical effect of the court’s rationale is to establish the line as the ordinary high water mark. To quote the slip opinion:

The boundary of the public trust does not, however, as the court of appeals  concluded in affirming the trial court, change from moment to moment as the water rises and falls; rather, it is at the location where the water usually stands when free from disturbing causes. That is what we stated in Sloan, that is what has been understood for more than a century in Ohio, that is what the General Assembly meant by ‘natural shore line’ when it enacted G.C. 3699-a in 1917, and that is what the law was when ODNR began to enforce the leasing policy, which it has since abandoned and recognized the presumptive validity of the owners’ deeds. We see no reason to modify that law now.

Thus, the Court rejected the lower courts’ moment-to-moment water mark, did not endorse low water mark (the line which some of the property owners originally argued), and gave storms and droughts as examples of disturbing causes. Without adopting the term “ordinary,” the Court affirmed the OEC/NWF and the State of Ohio’s’ conclusion of where the Public Trust lies.

The question now is who defines the line and how.  That question will be answered in remand to the Lake County Court of Appeals.

Also, the Supreme Court gave a second win to the people of Ohio by rejecting the Court of Appeal’s ouster of the Office of the Ohio Attorney General to represent the people.  The Appeals Court ruled that the Ohio Attorney General had no authority to represent the citizens of the state in the matter (even though the state was a named  defendant in the case). 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 appeals court reasoned, he had no standing to participate in the appeal.  To the rescue, the Ohio Supreme Court unequivocally denounced the lower court’s assertion, and gave the 11 million citizens of Ohio their legal counsel.

See previous OELC Posts.

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