OELC’s Top 10 of 2009 . . . No. 1 . . .

The moment you all have been waiting for, Number One in this countdown of environmental achievements and mishaps of the past year . . .

No. 1 — Ohio Environmental Council’s Legal Division becomes the William W. Ellis Ohio Environmental Law Center

OK, it maybe a little self-serving, but it is a big deal for Ohio’s environmental community, and a huge step forward for public interest environmental and conservation law which will only grow in 2010.

For 40 years, the Ohio Environmental Council (OEC) has worked behind the scenes and on the front lines of Ohio’s most important environmental battles.   The OEC’s Air & Energy Program and Agriculture & Water Program provide the eyes and ears for everyday citizens—keeping watch over the Ohio legislature and state agencies and the powerful special interest lobbyists that try to influence the law.  In fact, the Ohio Environmental Council sometimes is the only voice representing the public at Statehouse committee meetings, public hearings, government advisory committees and other state regulatory proceedings.

OEC’s legal team for many years consisted of outside counsel assisting OEC in filing cases.  This evolved, in 2003, to the OEC Environmental Law Clinic, where Law School interns worked mainly as the legal research and drafting wing of the OEC policy programs.  In 2009, the legal arm of the OEC evolved into the William W. Ellis Ohio Environmental Law Center.

The OEC’s William W. Ellis Ohio Environmental Law Center is the only statewide public interest environmental law center in Ohio.  The Law Center is unique, as its primary client is the Ohio Environmental Council and its thousands of group and individual members.  This structure allows us to provide a topnotch combination of legal, policy, and legislative advocacy on Ohio’s most important environmental concerns.  The Law Center focuses on three areas:

1. Legal Advocacy

On its own and working with national and regional organizations, the Law Center was at the forefront of many clean energy and clean water struggles before administrative agencies, the general assembly and the courts.  Our principled and pragmatic advocacy made great strides for Ohio in 2009:

• OELC engaged in fifty separate cases before the PUCO, including applications for utility residential and commercial efficiency programs, waivers from the energy efficiency benchmarks;
• Testified against regulatory reform initiatives that sought to sacrifice environmental protection for quicker permits, while providing support for initiatives that helped small business and individuals efficiently maneuver the labyrinth of state bureaucracy;
• Testified in opposition to drilling in Ohio’s State Parks, while working to update Ohio’s urban oil and gas drilling laws;
• Joined with national environmental groups to oppose dirty coal plants before ERAC and in Federal Court;
• Issued a veto request to Governor Strickland following the budget amendment that put unreasonable deadlines on ERAC that could hamper environmental protection, and joined attorneys from the regulated community to appeal ERAC’s implementation of the deadline mandate in state court.

1. Legal Analysis

This year OELC drafted and published a series of articles ranging from scholarly law review articles to bar association magazines, to move the debate over important environmental and constitutional issues and show the depth and breadth of public interest environmental law in Ohio.  This year, OELC:

• Took on barriers to citizen enforcement of environmental laws in “Environmental Enforcement and the Limits of Cooperative Federalism,” to be published in the next issue of the Duke Environmental Law & Policy Forum;
• Tackled legal obstacles to carbon capture and storage in OELC’s article, “Reconciling King Coal and Climate Change: A Regulatory Framework for Carbon Capture and Storage” to be published Vermont Environmental Law Journal;
• Defended the constitutionality of the Clean Water Restoration Act and a nationally recognized Debated Private Property Advocate in American Bar Association Newsletter; and
• Questioned the validity and sincerity of SCR 13 and Ohio Senate’s movement to reaffirm the Tenth Amendment in the forthcoming Ohio Lawyer magazine published by the Ohio Bar Association.

1. Legal Education

Yet, a major component of the Law Center is also to provide legal education and public interest experience to tomorrow’s environmental attorneys. It has always been and will continue to be a goal of the internship program to provide our interns with a well rounded understanding of not only environmental law, but the entire non-profit environmental advocacy organization experience.  In 2009, six law students gained such invaluable experience at OELC, and will go on to be great members of Ohio’s Environmental Bar.  Just read the reflections of OELC intern, James Madieros after his experience here.

OUTLOOK 2010

In 2010, OELC will continue with our initiative started in 2009 of drafting legal research, analysis, and advocacy papers for both external scholarly and legal industry publications.

The OELC internship program will continue to grow so that we can fulfill our goal to provide tomorrow’s environmental lawyers with the experience and educational opportunities needed to be effective advocates for environmental and human health.

The Law Center will continue to pursue legal and administrative actions that further the overall goals, objectives, and mission of OEC. The Law Center will consider the following factors in determining whether to accept a case and become a full party:

• Significance of the environmental impact
• Likelihood of a “favorable outcome”
• Possibility of establishing a legal precedent of statewide significance
• Support of OEC members or member groups
• Availability of funding
• Degree to which the case fits the strategic plan of OEC

OELC will also increase its capacity to support and represent individuals, organizations, and communities around the state fighting to protect the air, land and water resources and human and environmental health of the state or their hometown.

Although OELC will be at the ready to protect Ohio’s air, land, and water resources and defend communities, groups and individuals quality of life as those issues arise  — OELC will focus its 2010 advocacy on three areas:

1. Clean Energy and Carbon Management

• The OEC will continue our efforts to enforce and fully Implement Ohio’s Energy Efficiency Standard.  The number and complexity of these cases will only increase, as utilities seek to establish and justify energy efficiency programs and provide monitoring and verification of their success in securing energy savings
• We also will continue our involvement in each of the four utilities’ energy efficiency collaborative groups, to assist the utilities with developing and monitoring energy efficiency programs.
• Work to make CCS a reality in Ohio, and to make Ohio the CCS model for the Midwest, and fully implement the recommendations in our CCS law review article.
• Through state and federal law, policy maker education, and legal advocacy, work to stop water quality devastation by the use of coal slurry impoundments that destroy eastern Ohio rivers and streams and utilize more environmentally sound alternatives;  reform Ohio’s reclamation bonding  requirements which currently violate federal minimum requirements and leave a vast backlog of unreclaimed former mine land for the state to pay to reclaim (instead of the industry); and work to change Ohio’s water replacement laws to force coal companies to perpetually replace drinking water supplies for landowners ravaged by longwall mining.

2.  Clean Water Protection

• Strategically File Citizen Enforcement Suits under the Clean Water Act.
• Draft an “Ohio Clean Water Enforcement Report” to Highlight Inadequacies in Ohio’s Enforcement
• Utilize Citizen Suits and an “Ohio Enforcement Report” as a Basis for Press and Public Attention Drawn to the Issue of Ohio’s Abysmal Record of Enforcement.
• Use Lawsuits, Report, and Press Coverage to Urge Change with Both the Attorney General and OEPA vis-à-vis Enforcement
• Empower Other Citizens and Citizen Groups to File Citizen Enforcement Suits;

3. Public Participation and Governmental Transparency

• Work to make the legislative and regulatory process more accessible for the public;
• Fight for change in procedures to allow the impacted communities and individuals effectively provide input and appeal or enforce environmental violations;
• Make government accountable to its citizens;
• Stop the contemptible practice of big industry using federal lawsuits to silence opposition and stomp on individual, constitutionally protected freedoms of speech and petition.

Don’t forget to make your 2009, tax deductible donation to OELC, NOW! It is support from people like YOU that makes our public interest work happen.

Thanks for following the Top Ten, and have a safe and Happy New Year.

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OELC Top 10 of ’09 … No. 2 – AMP Abandons Coal Plant

No. 2 — AMP proves that Dirty Power Does NOT Equal Cheap Power

In November of this year, AMP revealed it will abandon its plans to build a 960 MW coal plant (AMPGS) near Letart Falls in Meigs County. According to the statement, the company said the change in course was the result of an unexpected 37 percent increase in the cost to build the 1,000-megawatt plant, which was last estimated at $3.25 billion.

A total of 81 AMP member communities in Ohio, Michigan, Virginia and West Virginia were participants in the AMPGS project, which had been under development approximately six years as a pulverized coal (PC) facility with ammonia scrubbing emission control technology.  OEC, OELC and others opposed this proposal from the outset because they disagree with the coal technology choice made by AMP-OH, for reasons associated with organizational environmental protection mission, but also due to serious and sincere concerns with regards to future costs and operational flexibility.

The Ohio Environmental Council hailed the announcement by American Municipal Power-Ohio (AMP-Ohio) that it has canceled plans to construct a proposed pulverized coal-fired power plant on the Ohio River in Meigs County.

Ever-growing costs doomed the plant, as cost projections grew from $2.5 billion just two years ago to close to $4 billion, today.

According to Marc Gerken, AMP President/CEO, the years of opposition of ENVIRONMENTAL & CONSERVATION ADVOCACY ORGANIZATIONS (Please stop with the dirty name calling, Marc, we are advocates not activists) had nothing to do with the change of heart of AMP to turn from coal to natural gas. “Contrary to what the activist groups who have opposed this project will assert, this conversion is not the result of their opposition efforts, our position in upcoming permit appeals, or load loss by our members (as the project is designed to reduce existing market exposure rather than to address growth),” said Gerken.

We completely agree with Mr. Gerken. Environmental advocates do not cause plants to be scrapped or shut down, we are merely the conduits of the reasons why such an antiquated idea of pulverized coal plants and its 7 million tons of annual carbon dioxide emissions in a soon to be carbon constrained climate is too costly and too risky for the utility and for our planet.   The environmental, human health, and economic impacts stopped the plant, not lawyers, lobbyists, or community groups.

OUTLOOK 2010

AMP – Ohio was the first utility in this state to build and utilize wind power.  AMP-Ohio is actively developing multiple hydroelectric projects in the region, pursuing the largest deployment of clean, renewable run-of-the-river hydroelectric generation in the country.  AMP-Ohio is also actively working on a very large and proactive energy efficiency resource package.  Now that the six-year plan to build an antiquated coal plant , AMP Ohio can get back to the business of doing what it does best — being a leader in renewable energy and energy efficiency in this state.

OEC expressed desire to create with AMP-Ohio a productive new model of project development, one where reasonable environmental advocates work in tandem with developers to move advanced coal projects forward, making community support, positive media, state and federal funding, and quick, limited-litigation permits far easier to achieve, has proven quite successful elsewhere, and is a promising prospect for Ohio. On this point we refer you to the work of the Clean Air Task Force and the Indiana Wildlife Federation and their collaboration with Duke Energy regarding the Edwardsport IGCC coal power project, which is moving ahead of schedule, will be given substantial state and federal support, and received with relative ease positive rulings and permits from Indiana regulators.

Such a partnership between AMP-OH and the OEC was our goal when we opened dialogue with AMP-OH in 2006., and we hope that is still an option as the new natural gas plant proceeds through the development process.

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OELC Top 10 of 2009…No. 4: How to Attack Climate Change & the Regulation of GHGs

The International Climate Conference held in Copenhagen this month yielded a tentative agreement from the 193 participating countries, including the United States, to begin reducing GHG emissions to mitigate the climate crisis. But it’s not clear exactly how the U.S. will achieve the reductions that have been pledged at Copenhagen. Basically, there two very possible approaches: EPA rulemaking under the Clean Air Act or Congressional legislation, most likely in the form of a cap and trade bill. (A third, less likely, scenario is one in which the President would issue an executive order or an executive agreement mandating reductions.)

Let’s take a closer look at these two more likely scenarios. President Obama’s EPA appears ready and willing to regulate GHGs in the event that Congress does not pass a climate bill this year. Armed with the authority to do so as a result of a 2007 Supreme Court decision, Massachusetts v. EPA, the agency is preparing to implement rules that will regulate GHG emissions using Title II of the Clean Air Act. With its recent endangerment finding, the EPA has said that GHGs such as CO2 are, in fact, a danger to public health, which means that GHGs can be regulated under the CAA. The agency has used its Title II authority to implement new fuel efficiency requirements for motor vehicles, and the agency may also attempt to regulate stationary sources such as power plants. Under this approach, EPA would required to prescribe a unique pollution limit to thousands of individual emitters, on a source by source basis.  This approach would result in emissions reductions, but it could be extremely difficult to implement.

However, the most logical and efficient way to regulate global warming pollutants in 2010 is through a comprehensive climate bill that includes an aggressive “cap and trade” system. A cap and trade approach would establish a clear national limit—a “cap”—on the amount of GHGs that could be emitted in the United States. Major emitting facilities such as power plants and other large industrial sources would be allocated tradable emissions credits–which would set the maximum amount of allowable emissions. (The sum of these emissions credits would equal the national cap.)

The advantages of cap and trade legislation are many. First, there is the certainty of a definite cap on national emissions. Second, because emissions credits can be sold to other emitting sources, companies will have a financial incentive to reduce emissions as much as possible. It’s a market-based approach that is favored by many utilities and other industry. Finally, the cap structure would be an economy wide regulation, unlike rulemaking under the CAA which would attempt to reduce emissions on a source by source basis.

As we discussed briefly in our December 24 post, each of these approaches would face legal challenges, which could reach the U.S. Supreme Court. EPA regulation could be challenged as exceeding the scope of the agency’s or Congress’s authority. A challenge to EPA rulemaking, for example, could re-open Court’s 5-4 decision in Massachusetts v. EPA, which is the basis for the agency’s ability to regulate GHGs. Meanwhile, a climate bill could be challenge on a myriad of grounds, including as an unconstitutional use of Congress’s commerce clause power.

In sum, environmentalists may well have two battles to wage in 2010: 1) implementing climate change regulation and then 2) defending it at the U.S. Supreme Court.

Click Here to Read a recent OEC article on Cap and Trade Legislation in EcoWatch Journal.

Read our statement on EPA’s decision to use its CAA authority to increase fuel standards for vehicles

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OELC Top 10 of 2009 … No. 5 Lake Erie Shoreline Decision eviscerates the centuries old “public trust doctrine” and the authority of AG

No. 5 – Lake Erie Boundary Dispute decision – “a trifecta of injustice” for Ohio’s natural resources, its people, and its Top Cop.

In the December 2007 Lake County Common Pleas decision in State ex. rel. Robert Merrill v. State of Ohio, the court  redefined the boundary separating public and private property along the Lake Erie shoreline from the ordinary high water mark to the point at which the water meets land from moment to moment—effectively barring citizens from the shores of Lake Erie unless they are in the lake itself.  The 70-plus page decision concluded with a “splitting of baby” ruling stating that the Plaintiffs were not right, the Defendants were not right, so the ruling is somewhere in the middle.

After such tan affront to the law, the Ohio Environmental Council (OEC), National Wildlife Federation (NWF), and State of Ohio appealed the decision to the 11th District Court of Appeals.  Over a year and a half passed before the Appeals Court issued its decision in August of this year – and what a decision it was:

1. The Boundary Begins at the Moving Waters Edge (read OELC’s Analysis on this point)

The Court found that the public may walk upon the shoreline only so long as they stay in the water and that landowners can build all the way to our Lake and construct fences along our coast. The District Court’s decision upheld the trial court’s novel finding that the boundary between private and public property is where the water touches the land at any given time.

These findings eviscerate the centuries old “public trust doctrine,” which provides that Lake Erie is held in trust by the state for the use and benefit of all Ohioans. Courts have always interpreted the public trust doctrine to mean that the shoreline up to the ordinary high water mark, in addition to Lake Erie itself, is held in trust for the citizens of Ohio.

2. The people of Ohio Lose Legal Counsel (read OELC’s Analysis on this point)

Further, the Appeals Court ruled that the Ohio Attorney General Richard Cordray has no authority to represent the citizens of the state in the matter. 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 court reasoned, he had no standing to participate in the appeal.

What is equally troubling is that the 11^th District Appeals Court reached this decision through pure judicial activism—by unilaterally deciding that the meaning of the Revised Code 109.02 is somehow different from the text of that section.  The court has attempted to constrain the role of the Ohio Attorney General—an independently elected official—by fiat.

What is more, in addressing the role of the Attorney General in its decision, the court took the unusual step of ruling on an issue that was not raised by either party.  Referred to as a “sua sponte” decision, the act of ruling on an issue not raised by the parties at trial is generally frowned upon by courts.

A Brief Background on Merrill

The court case—known as Merrill vs. State of Ohio—revolves around ownership of the strip of land between the lake’s ordinary high water mark and the water’s edge, when that land is not covered by water.

Some private property owners adjoining the lake claim ownership through various deeds to various points offshore, including some which claim extent to the international boundary with Canada.  The Attorney General and wildlife and nature groups cite state law confirming state ownership to the ordinary high water mark.

The property owners sued the state in 2005 after several unsuccessful attempts to get the General Assembly to amend Ohio law in the first half of the decade. Lawmakers decided against changing the law, in part because of opposition from the ODNR under then Ohio Gov. Bob Taft.

The National Oceanic and Atmospheric Administration, which oversees state coastal management programs, advised the ODNR in 2005 that the proposed legislation would grant upland owners “the unabridged right” to fill submerged lands or construct docks, wharves, and other structures along the shore without state oversight.

The OEC and NWF, in 2006,  intervened in the lower court case to protect the interests of their members in the access to, and protection of, Lake Erie and its shore.  The groups’ intervention was also based on a fear that the Ohio Department of Natural Resources, and the Governors’ office may take a different view or posture after the 2006 Gubernatorial Election. It was a wise decision . . .

After Gov. Ted Strickland took office, (and while the Court of Common Pleas was deliberating the case), on July 13, 2007, he announced that the ODNR no longer would require a lease for any shoreline structure.  He also stated that the ODNR no longer would contest the court case.

The then-Attorney General, Marc Dann, declared that he would remain in the case, representing the State of Ohio and its citizens and defending the Lake Erie public trust doctrine.  Interim Attorney General Nancy Rogers continued to represent the State of Ohio in the case after Dann left office in 2008.

Outlook 2010

Next year, OELC expects the Supreme Court of Ohio to take up this case for final resolution.  The complete defiance to Ohio Supreme Court caselaw as appeared in the Appeals Court decision, and the affront on the laws of man, laws of nature, and laws of common sense necessitates a strong reversal by the Court.

The lower courts’ fictitious ruling that  boundary between privately-owned upland property and the Lake Erie shore is the point where the water touches the land—a movable boundary that advances and recedes with Lake Erie’s ever-changing water level – must be overturned.  If left unchallenged, the finding would outlaw families and anglers to stroll or fish along the dry beach bordering the water’s edge and would allow upland owners to claim ownership over artificially filled bottomlands.

On three separate occasions (in 1878, 1916, and 1948), the Ohio Supreme Court has referenced the ordinary high water mark as the boundary.  On any given day, the location of driftwood, changes in vegetation, and the shelving of sand mark that approximate spot.  Finally, common sense dictates that the lake boundary cannot be a moveable one that shifts up and down with periods of high or low lake levels.

The Ohio Supreme Court has ruled in most unambiguous terms that the state can never abandon the lands of Lake Erie that it holds in trust for the people of Ohio and that upland owners have no title beyond the natural shore line.  We hope the current Supreme Court ultimately will respect the precedence established by its predecessors and once again recognize the ordinary high water mark as the landward boundary of Lake Erie.

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OELC Top 10 of 2009 … No. 6 – The ERAC Saga

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-49^th 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. 

OUTLOOK 2010

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?

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OELC Top 10 of 2009 . . . No. 8 Ohio’s Air, Land, and Water Resources Gain but also Lose Ground in this Years’ State Budget

No. 8 — Defense on the part of Enviros prevails as lack of money takes on politics in the State Budget Battle

A 2009 Top Ten of Environmental Hits and Misses would not be complete without a reference to the State Biennial Operating Budget.  And much like everything in Columbus, even the legislative process takes on eerie similarities to college football.  This year saw the same political chest-pounding and head-butting and  (perhaps intensified by the partisan split in the current General assembly); multiple overtimes (and continuing resolutions); gambling on gambling to fill gaping holes in the General Revenue Fund (GRF) line; and of course, environmental protection and conservation programs running out of time. In the end, the game was essentially a tie, as the staunch defense of the environmental and conservation community came through.

As the revenue numbers and projections came out throughout 2009, environmental and conservation advocates braced themselves for a long, hard fought battle in the trenches.  After the General Assembly divided the dwindling tax dollars to fund medication, education, and incarceration, there would be very little left to protect Ohio’s Natural Resources.  Here are some highlights:

Losses for Natural Resources

The Governor’s proposed budget carried with it one of the most important funding proposals, that would have opened up the GRF funds to human health and education priorities, instead of continuing to .  The energy extraction fee essentially was a permitting fee on coal, oil, and natural gas extraction industry to fund the ODNR Division of Mineral Resources Management – the division whose mere existence is to keep these industries working in Ohio.  However, as usual, the industry lobby said ‘No, we don’t have to pay,’ and the General Assembly struck this needed funding source.

Further on the downside, natural resources were dealt a series of deep funding cuts.  This will take a serious toll on the ability of Ohio’s 88 county soil and water conservation programs to conserve topsoil and stop polluted farm fields and city streets from entering waterways.

Even more wounding is Governor Strickland’s decision to completely zero out funding for the agencies that are responsible for protecting state nature preserves and the mapping of Ohio’s underground resources.  Ohio’s 134 state nature preserves represent the last remaining bit of Ohio’s wilderness.  Without funding, their future may be threatened from neglect and the encroachment of invasive species.  

With no organized geological survey, Ohio will know less about groundwater sources and will risk falling further behind in the race to develop deep underground storage places for the long-term capture and storage of carbon.

Wins for Environmental Protection

Turning to good news, we are grateful for the Administration and the General Assembly for continuing Ohio’s Scenic and Wild Rivers program, which returns benefits to paddlers and recreation enthusiasts looking for more ‘staycation’ opportunities as well as will continue to enjoy public lands unspoiled by the threatened specter of oil and gas drilling in state parks, nature preserves, historic sites, and even Lake Erie.

Praise as well goes to the cooler heads that prevailed, and the great defense played by organizations such as the Ohio Environmental Council, when the General Assembly ultimately junked several thoughtless proposals, including ones to:

• Redefine scrap tires, trash, street dirt, and coal methane gas as renewable energy;
• Sneak in the Senate’s ‘regulatory reform package’ which would have let employers of up to 500 workers avoid full compliance with health, safety, and environmental protections that may pose an undefined “adverse impact” to the business as measured by a “cost/benefit analysis” that considers only impacts to the business, not benefits to public health, worker safety, or environmental protection 
• Water down the definition of ‘unrecognizable waste’ in construction and demolition landfills, which could open the door to the acceptance of toxic waste-tainted waste; and
• Narrow the minimum five-foot separation distance between CD&D landfill waste and groundwater 

Outlook 2010

OELC and Ohio Environmental Council will be working hard with our colleague groups and state officials to secure necessary funding for Geologic Survey to do necessary site characterization for carbon storage in Ohio, as well as secure funding for Natural Areas and Preserves.  However, the budget process merely was a precursor to the 2010 political wranglings at the Statehouse that will threaten Ohio’s Natural Resources and Human and Environmental Health. We will be faced with the return of Oil and Gas drilling in our parks; with efforts to displace renewable energy sources with the burning of the most objectionable materials one can imagine; ‘regulatory reform’ that is meant to make beuracracy less daunting for small business, but could allow environmental permits to go through without proper review; and attempts to slowly erode environmental protections.  However, as Coach Paul “Bear” Bryant said, “Offense sells tickets; Defense wins championships”, so goes the Ohio General Assembly.  While offensive proposals will continue to be introduced, the great defense of the environmental and conservation community will prevail in the end.

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OELC’s Top 10 of 2009 . . . No.9 Ohio at the bottom of CWA Enforcement

No. 9 — New York Times Series on Clean Water Act Enforcement by the States, Shows Ohio Barely reaching the Surface in Water Protection

The 1969 Cuyahoga River Fire, many believe, was the catalyst for the revisions to the Federal Water Pollution Act that resulted in the 1972 Clean Water Act. However, over the past few years, many states, and especially Ohio, have had an abysmal record of Clean Water Act enforcement.

Across the nation, the system that Congress created to protect the nation’s waters under the Clean Water Act of 1972 today often fails to prevent pollution.  Begining with the August 2009 story on Atrazine in the Piqua, OH water system, the New York Times series “Toxic Waters: A Series about the Worsening pollution in American waters and regulators’ response,” documented the poor record of the States when it comes to protecting America’s water supply from agricultural, industrial, and municipal waste.

Records analyzed by The Times indicate that the Clean Water Act has been violated more than 506,000 times since 2004, by more than 23,000 companies and facilities, according to reports submitted by polluters themselves.

Some violations are relatively minor. But about 60 percent of the polluters were deemed in “significant noncompliance” — meaning their violations were the most serious kind, like dumping cancer-causing chemicals or failing to measure or report when they pollute. The authors of the New York Times series conducted exhaustive research on enforcement throughout the country.  Their results showed the state of Ohio, the arguable birthplace of the Clean Water Act, as near the bottom of enforcement.

According to the data, from 2004-2007, Ohio is a leader in number of Clean Water Act permitted facilities (3,114), and a leader in number of violations of the Clean Water Act per 100 facilities (62.3).  However, Ohio has only commenced enforcement activities against 19 of the more than 1,900 violations.

One major reason for Ohio EPA’s lack of enforcement is its lack of resources.  According to Ohio EPA-Division of Surface Water, the Division that is in charge of Clean Water Act regulation in Ohio, $1.50 million, of the Division’s $30 million annual budget is allocated to enforcement.  This lack of resources also is a factor with the Ohio Attorney General’s Office Environmental Enforcement Section.  The AG’s office routinely sees great turnover as young attorneys work sometimes two years and then leave for other jobs in the Office or with law firms.  This fact puts a great amount of strain on the few senior attorneys in the office to maintain a rather large number of cases that routinely take one year to many years to proceed through the system.  Turn over and loss of experienced attorneys makes efficiently prosecuting even the least complicated violations of law practically preventative.

However, another limiting factor in the capacity for enforcement in Ohio is sheer politics.  While it is not a new tactic, recently the Ohio General Assembly and members of the regulated community have portrayed over-enforcement and predatory permitting and fines by Ohio EPA Division of Surface water, as one (if not the number one) reason for the negative job growth and economic decline in the state.

“The effect, in the eyes of OEC, has been a lack of desire by the Agency to strictly enforce violations of the Clean Water Act, for fear that the General Assembly will further cut its budget or its jurisdiction (or both).  The New York Times series has finally debunked this industry mythology that Ohio EPA over enforces.” — Trent Dougherty, Director of Legal Affairs, Ohio Environmental Council

Outlook 2010

“In 2010, the citizens themselves will take the torch, and accept the role of enforcer of Ohio’s water quality laws,” predicts Dougherty.

Enforcement of water quality protection laws is hampered both by lack of money and lack of political will. However, the Clean Water Act provides a mechanism for enforcement in the law that has gone underused in this state – Citizen Suits.

While Congress intended federal and state agencies to be primarily responsible for enforcement, legislators also included provisions allowing private citizens to enforce the laws when the government was unwilling or unable to do so.  These so-called “citizen suit” provisions, included in every major environmental law, allow “citizen attorneys general” to sue violators in federal court.  Congress intended citizen suits to supplement government action, to make up the balance of necessary enforcement at times when underfunded or overworked agencies could not ensure that all laws are complied with.  However, these suits have been under utilized in Ohio to aid enforcement and protect water resources.

Yet, while citizen suits can be good tools in directly enforcing the clean water requirements against a specific actor or action, they can also be used as tools for more widespread change.  Well-planned and strategic citizen suits can be useful as a deterrent for other potential violators, and for current violators as well.

Further, if the Environmental Enforcement Section of the Ohio Attorney General’s Office feels that they have competition on their stated “turf” (i.e. suing entities for environmental law violations), they may feel compelled to be more active in their role as chief enforcer.  More citizen suits would help supplement enforcement by the AG’s office and could motivate the office to initiate more enforcement suits.

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OELC’s TOP 10 of 2009 . . . No. 10 Water Rights

This is the first installment in the Ohio Environmental Law Center’s Top 10 of 2009 — The Top Ten Hits (but unfortunately mostly misses) in Environmental and Conservation Law over the past year.  This is a purely OELC subjective look back at 2009 — a look back at the wins and losses for environmental protection at the state and federal level.   Our methodology? Simple . . .  issues, cases, or legislation that occurred in 2009 that shaped, have a potential to shape, or in most cases could have had a potential to shape environmental protection in Ohio for years to come.

As with all top-ten lists, some readers will object some items being included in the list and/or other items left off the list. Either way, we encourage any additions through comments.  — Trent Dougherty, Staff Attorney and Director of Legal Affairs

No. 10 — One Year of Constitutionally Held Water Rights and Questions Still Linger

OK, the substance and legislative action of Number 10 actually occurred in 2008, but 2009 was the first full year of Article I, Section19b of the Ohio Constitution — the Ohio Constitutional Amendment to “protect private water rights.” In the spirit of the holidays as well, OELC wanted to thank the drafters of the SCR 8/State Issue 3 once again for such a wonderful gift, that we expect will .

OELC and the environmental and conservation community were leery of SCR 8 as it was introduced during the debates over ratification of the Great Lakes/St. Lawrence River Water Resources Compact in summer of 2008.  When it was placed on the 2008 November Ballot, and passed with a nearly 3/4 majority, the reaction was fear of the unknown implications of the amendment.

The overarching question was: What is wrong with the current law that necessitates amending the Bill of Rights of the Ohio Constitution (which has not occurred since 1912)? The Ohio Supreme Court had already ruled that property owners have a right to reasonable use in groundwater in Cline, and that an infringement on the use is a taking in McNamara.  Questions also focused on the impact of this amendment on the Public Trust Doctrine and how Ohio would use the doctrine in the future to protect and preserve the water quality and quantity of Ohio.

Yet, as this amendment was meant to clarify everything in regard to a landowner’s water rights, it merely opened a cacophony of questions that no one has yet to answer: not the General Assembly, not state regulatory agencies, and not the Court. Questions such as:

1. What does “shall not be held in trust by any governmental body” mean?  Who other than the state hold trust?
2. Are groundwater rights salable?
3. What is the impact of stating that a landowner may voluntarily convey property interest, but not stating that a property own can convey to a private interest?
4. What constitutes reasonable regulation of groundwater?

Nevertheless, a huge thank you has to be given to State Senator Tim Grendell (R-Chesterland) for introducing the resolution that “Constitutionalized” the right to reasonable use in ground and surface water.  After a year of no assault on the Public Trust Doctrine or to water quality or water quantity in the state, and after legal research, it has become clear that the fears of the unknown were misplaced.  The unknown (the unanswered questions) merely stands as an opportunity to have the private property owner as the torch bearer for resource protection.

Outlook to 2010

While nothing noteworthy has happened yet concerning this amendment, the years to come will show that this amendment will allow citizens to protect water quality better than any other provision passed in Ohio. Each property owner that, before, had to stand idly by and see state regulators or local officials permit offensive and destructive water intensive industries to move in directly next to them, now has a sword. This sword of a constitutionally held private property right in the reasonable use in ground and surface water, gives the landowner a ticket directly to the Ohio Supreme Court. Longwall miners that dewater surface-owners in eastern Ohio; Industrial mineral companies, like the one in the seminal groundwater case, Cline v. American Aggregates, that take the water of poor people in Central Ohio; to large industrial livestock facilities and other agribusiness that pump hundreds of thousands of gallons of water in Western Ohio; and other large-scale industrial water users statewide will have to pay (and handsomely) for the water they take.

Currently, such de-watering is an externality that many industries have traditionally needed not internalize. However, environmental plaintiffs attorneys and organizations such as OELC will be working diligently to make sure these industries do right by Ohioan’s property rights, and right by Ohio’s precious water resources.

Further, the state agencies, who have for years permitted these industries to take water for neighboring landowners, may be faced with a takings claim of their own. A single water consumption permit that dewaters an aquifer or a stream could impact many property owners. According to OELC attorney, Trent Dougherty, “Such a multi-plaintiff takings case, before a Ohio Supreme Court which has had the propensity rule zealously in favor of private property owners, could trigger a compensation order that would make the famed RTG case, and its $5 million hit to Ohio’s budget, look like a traffic ticket.”

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