OEC as Amicus Curie before the Ohio Supreme Court
Pleasant City v. Ohio DNR, 617 N.E.2d 1103 (Ohio 1993)
On September 21, 1988, the village of Pleasant City (“Village”) filed a petition with the Division of Reclamation to have 833 acres of land surrounding the village designated unsuitable for coal mining. The Village relied on groundwater from an underground aquifer as the source of its public water supply. The Village feared that mining activity would affect the productivity of its public wells. Excavated mine pits are filled with mine spoil, which is less permeable than the sand and gravel deposits of an underground aquifer.
The case presented two issues: (1) whether O.R.C. Section 1513.073(A)(2) required the Division of Reclamation to consider the effect that mining could have on the water supply, aquifer, and aquifer recharge area not based solely on the level of current usage; and (2) whether the Court of Appeals used the proper standard of review in reversing the Division of Reclamation’s finding.
The Court determined that the language of the statute required the Division of Reclamation to consider not only the effect mining would have on the Village’s water supply based on its current usage, but also the effect mining would have on the overall viability of the aquifer and the aquifer recharge area (including those areas currently unused by the Village). Although the Court agreed with the appellate court on this issue, it still held that the Court of Appeals erred in ordering the Division of Reclamation to designate the entire aquifer as unsuitable for coal mining. The appellate court should have applied a more deferential standard of review, rather than merely substituting its own view for that of the agency. The Court, thus, remanded the case to the Division of Reclamation to undertake fact-finding to determine the precise extent of the aquifer that must be designated unsuitable to protect the future productivity of the aquifer.
OEC’s Amicus Curiae Brief in this Case
The OEC’s brief, filed by Richard Sahli, presented a single argument – namely, that ORC 1513.073 requires ODNR to consider not only the effect mining would have on the current use of an aquifer, but also its effect on the future viability of that aquifer as a water resource.
In making this argument, the brief first discussed the history of that section of the Revised Code. In 1986, the State of Ohio developed a comprehensive plan for the protection of its groundwater resources. This was a joint effort of a number of state agencies and culminated in the publication of a report, entitled Ohio Ground Water Protection and Management Strategy. The primary goal of that effort, as set out in the published report, was to prevent depletion and contamination of Ohio’s groundwater resources. One of the keys to effectuating this goal was the statute at issue in this case.
The brief noted that Section 1513.073 mirrored the federal “lands unsuitable” statute, which was passed under the Surface Mining Control and Reclamation Act (“SMCRA”) and codified at 30 U.S.C. 1272. The law was preventative in nature and designed to protect valuable subsurface aquifers. ORC 1513.073(A)(2)(c) makes clear that ODNR must consider the effect coal mining would have on the aquifer and its recharge area when presented with a petition for designating lands unsuitable for mining. The aquifer is a valuable resource to the Village, and ODNR must consider whether mining will serve to devalue the aquifer as a future resource.
Finally, the brief noted that application of ODNR’s test in other contexts would lead to absurd results. For instance, Section 1513.073(A)(2)(b) protects “fragile or historic lands” from coal mining. “Fragile lands” are defined elsewhere as lands that serve as a habitat for wildlife or fish, or are environmental corridors containing a concentration of ecologic or aesthetic features, or are areas of recreational value due to high environmental quality. Using the ODNR’s test, one would have to show that the lands were already being used extensively by fishermen or hunters before they could be protected against coal mining.
FirstEnergy Corp. v. Pub. Util. Comm., 95 Ohio St.3d 401, 2002-Ohio-2430.]
Appellants: FirstEnergy Corp., Ohio Edison Company, The Cleveland Electric Illuminating Company, and the Toledo Edison Company.
Appellee: Public Utilities Commission of Ohio.
Prior History: Before the Public Utilities Commission of Ohio, Case Nos. 99-1212-EL-ETP, 99-1213-EL-ATA, and 99-1214-EL-AAM.
Date of order entry: June 5, 2002.
With the passage of Senate Bill 3, the General Assembly enacted comprehensive legislation that provided for a competitive retail energy market. Section 4928.31 of the Revised Code requires electric utilities to file a transition plan regarding that utility’s provision of competitive electric service. Following stipulated settlements by the parties, the Commission approved FirstEnergy’s transition plan as modified by those settlements, subject to final approval of FirstEnergy’s tariffs.
One of those tariffs was the subject of this appeal. The Commission ordered FirstEnergy to make certain changes to its Net-Energy Metering Rider before the rider would be approved. FirstEnergy appealed, arguing that the Commission was acting unlawfully and unreasonably in requiring these modifications to be made.
S.B. 3 required retail electric service providers to design a standard contract for net metering, which is measuring the difference between the electricity supplied by an electric service provider and the electricity generated by a customer-generator that is fed back to the electric service provider. Customer-generators thus may either consume electricity or feed back excess generation, depending on the circumstances. Under the Revised Code, a net meter must be capable of measuring the flow in both directions (and not merely give the total electricity generated or consumed by summing them together). That is, it must be able to show how much electricity the customer-generator consumed and how much it produced.
Under FirstEnergy’s proposed rider, a customer-generator would be credited for the amount of electricity it generated in excess of the amount it consumed. The Commission ordered FirstEnergy to also credit the customer-generator for additional ancillary charges relating to transmission and distribution.
The Supreme Court held that the Commission had erred. The Supreme Court looked to the language of the statute, which required refunding to the customer-generator the unbundled generation component of the appropriate rate schedule. The statute did not provide for refund of transmission, distribution, or ancillary services, because those services are provided by the electric service provider and not the customer-generator.
OEC’s Amicus Brief
The OEC’s brief in this matter, filed by attorney (and current OEC Board of Directors Member) William Gruber, attempted to show that the Commission’s decision was, in fact, lawful and reasonable. The OEC argued that the law was intended to credit customer-generators by charging them only for the services relating to the net amount of energy consumed.
The OEC quoted Section 4928.67(A)(1) of the Revised Code, which provides that “the contract or tariff shall be identical in rate structure, all retail rate components, and any monthly charges, to the contract or tariff to which the same customer would be assigned if that customer were not a customer-generator.” The OEC argued that this required net metering customers to be treated exactly the same as other customers, and that charging them for transmission, distribution, and ancillary services for all electricity provided to them was inconsistent with this requirement. The OEC further noted that 33 states had net metering laws in effect, and each of those states allowed customer-generators to be credited for all components of the retail rate, not merely the generation-related components. Finally, OEC noted that the statute does not provide for unbundling of rate components and that distribution, transmission, and other charges are necessarily part of the bundled rates for which customer-generators are to be refunded.
State ex rel. R.T.G., Inc. v. State, 98 Ohio St.3d 1, 2002-Ohio-6716
Appellants: Donald C. Anderson, Division of Mines and Reclamation, Lisa Morris, ODNR, State of Ohio
Appellees: Charles Naught, Rae Naught, R.T.G., Inc.
Prior History: Before the Franklin County, 10th District Court of Appeals, Case No. 98AP1015.
Date of order entry: December 18, 2002.
On remand from the Supreme Court, the Division of Reclamation designated all a total of 833 acres of land, lying below the 820 foot contour and located around the Village of Pleasant City, to be unsuitable for mining. RTG filed this complaint seeking a writ of mandamus to compel the state to appropriate the coal that the state’s “unsuitable for mining” designation prevented RTG from mining. The appellate court held that this was a compensable taking as related to coal lying under property to which RTG’s only claim is mineral rights, but that it was not a taking as related to coal lying under property to which RTG owned in fee. The Supreme Court reversed, holding it to be a compensable regulatory taking in both instances.
OEC’s Amicus Brief
The OEC, filed by attorney Kristopher Huelsman, submitted a brief in this action in support of ODNR’s determination that these were not compensable takings. To that end, the OEC urged the Supreme Court to uphold the appellate court’s decision to the extent that it found the actions in question not to be takings, but to reverse the appellate court’s decision to the extent that it found the actions in question to be takings.
In opposing the request for writ of mandamus filed by RTG, Inc. (“Relator”), the OEC presented a number of arguments. First, OEC argued that some of the takings claims were barred by the four-year statute of limitations. Second, OEC argued that the claims were not ripe because the Relator had failed to exhaust all administrative remedies. Third, OEC argued that the claims were meritless because the Relator failed to show that the actions in question effected a denial of any economically viable use of their land. OEC’s fourth argument was that the claims were barred because the coal mining interests were acquired subsequent to the passage of the “lands unsuitable” statute. Finally, OEC argued that the claims with respect to certain tracts were also barred because coal mining those tracts would have constituted a common-law nuisance.
Ohio River Pipe Line LLC v. Henley, 144 Ohio App.3d 703, 761 N.E.2d 640 (2001)
Appellant: Harold F. Henley
Appellees: Columbus Southern Power and Ohio River Pipe Line, LLC
Prior History: Before the Fairfield County, 5th District Court of Appeals, Case No. 00CA16.
Date of order entry: January 16, 2001.
Counsel of record for OEC: Peter Precario.
Ohio River Pipe Line began this proceeding by filing petitions for appropriation of an easement interest in real property on June 9, 1999. ORPL requested these easements to construct a petroleum pipeline from Canova, WV to Columbus, OH. ORPL moved the court to conduct necessity hearings pursuant to O.R.C. Section 163.09. Henley filed a motion for summary judgment, arguing that ORPL did not qualify to appropriate an easement under R.C. 1723.01 because the intended purpose of the pipeline was not specified in the statute. The trial court agreed, finding that the statute applied only to unrefined petroleum and not petroleum derivatives and byproducts that ORPL wished to transport, and granted Henley’s motion.
On appeal, the Supreme Court held that the trial court erred in granting summary judgment for Henley, and instead entered final judgment in favor of ORPL and remanded to the trial court to conduct further proceedings consistent with this decision. The court held that the General Assembly intended petroleum to include refined substances, such as gasoline and jet fuel, and other petroleum derivatives.