Posts Tagged ‘Ohio General Assembly’

OEC Opposes Bill that Slams Courtroom Door

Mesothelioma. There is no cure for this aggressive and deadly form of cancer, of which the primary risk factor is asbestos exposure. Asbestos related deaths are among the biggest environmental health casualties over the past Century.

Many victims die within a year of diagnosis.  That is why time is of the essence when it comes to the judicious and fair consideration of claims brought by its victims. House Bill 380 (Representative Blessing), however, willfully and significantly obstructs the ability of asbestos exposure victims to seek compensation for their injuries. It allows Defense attorneys to file for perpetual continuances of court proceedings. It makes all bankruptcy claims admissible, even if hearsay. And permits defense attorneys to dictate how a claimant’s case shall be handled. This extreme and unjustified assault on victim’ rights should be trashed, not treasured.

OEC submitted written Opponent Testimony on the legislation, in Today’s 8th and final hearing.  Over the past year, both House and Senate Judiciary Committees have heard compelling testimony from experienced asbestos attorneys and the Asbestos Victims Coalition showing that the impact of this bill would slam the courtroom door on victims.

“This bill is designed to give a handout to the asbestos industry while robbing dying cancer victims of their constitutional rights,” said Anthony Gallucci, President of the Asbestos Victims Coalition in a Monday press release. “The asbestos industry should be held accountable for the thousands of deaths and injuries.”

No state has drastically limited the rights of asbestos victims to this degree, but Ohio appears to soon be the first. After being stalled in the Senate Judiciary Committee in the Spring, a switch of Committee membership permitted the bill to pass in the committee with a 6-4 margin.  It most likely will find its way to the Senate Floor later this week.

HB380 requires claimants in asbestos tort actions to make certain disclosures pertaining to asbestos trust claims that have been submitted to asbestos trust entities for the purpose of compensating the claimant for asbestos exposure.

Among other provisions, the bill also permits a defendant in the action to file a motion for an order to stay the proceedings setting forth the identities of asbestos trusts not previously disclosed by the claimant against which the claimant has not made any asbestos trust claims but against which the defendant in good faith believes the claimant may make a successful claim.

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Keep the Burden on the Industry to Protect Ohio from Fracking’s Risks

(Posted by Grant Maki, Attorney, Ohio Environmental Council)

There are a lot of unknowns about the potential impacts of fracking.  The technologies involved in fracking have never been done on this kind of scale before, and the impacts have not been thoroughly studied.  How likely is groundwater contamination—and over what timeframe?  How do we reconcile the divergent reports about the risks to air quality and global warming?  Even our regulators admit that there are many unknowns, and industry is often two steps ahead of regulation.

OEC and its attorneys with the Ohio Environmental Law Center are working now to develop protective regulations to present to ODNR and Ohio EPA to make sure the air, land, and water in Ohio’s Gaslands are protected.

Because of the unprecedented scale of hydraulic fracturing activities expected to come to Ohio, we need an effective set of laws in place that will make sure that people are quickly and fully compensated even for risks that are well understood, like the risk that a truck carrying chemicals to a well site springs a leak.  But when there is so much uncertainty and the State has taken a regulatory approach that can be described as “drill first, ask questions later,” it becomes even more important to plan for the fact that many impacts caused by fracking will “fall through the cracks.”

Thus, lawmakers should be concerned with creating a set of rules that can quickly and cost-effectively adjudicate disputes surrounding the harms caused by fracking.   Lawmakers should also try to create a set of rules that gives the people who know the most about the industry—the fracturing companies themselves—the proper incentives to avoid harms by forcing them to internalize all of the costs of their activities.

So beyond the necessary water quality and property rights regulations that desperately need strengthened, the actual legal and regulatory structure, itself, also needs an overhaul.

The Law Center has developed a list of five recommendations for how lawmakers can prepare the legal system to “fill in the cracks” in our regulatory scheme.  Because there is so much unknown about this industry—in part because the technology and industry practices are changing rapidly and vary from site to site—the proposed framework is designed to assign costs to the drilling companies while placing minimal administrative burden on the courts.

Read the Law Center’s Fracking Litigation Report VOL. 1 Filling in the Structural Cracks of Fracking Regulation for details on what the General Assembly can do to fix the system.

First, pre-drilling, post-drilling, and continuous environmental quality monitoring should be borne by the industry . . period.

Secondly, drilling companies should be held strictly liable for all harms caused by fracking operations, and rules should be put in place to minimize the administrative burden on both the courts and on parties seeking redress.

Furthermore, insurance requirements should be required to provide for potential catastrophic risks, and a severance tax should be levied to pay for latent harms that are not yet apparent, and to plug the abandoned oil wells that provide a potential pathway for fracking fluid migration.

Finally, drilling companies should have to pay attorneys fees and court costs for plaintiffs who successfully sue them for damages.

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This Wednesday, the Ohio Senate State & Local Government & Veterans Affairs Committee will meet to consider an easily overlooked issue that is essential to the proper functioning of our State government.  The Committee will consider changes to the workings of the Joint Committee for Agency Rule Review (JCARR), a joint committee of the Ohio General Assembly that reviews rules from Ohio’s executive branch agencies such as Ohio EPA, Department of Agriculture, and scores of others.

Under current law, all proposed agency rules must be submitted to JCARR for review based on limited statutory criteria.  JCARR may then recommend that the General Assembly adopt a concurrent resolution to invalidate all or part of the proposed rule.  If both chambers of General Assembly approve the resolution, the rule is invalidated and the agency may not re-introduce any version any part of it.  Unlike a bill that must be presented to the Governor to be signed to become law, a resolution needs only to be passed by both houses of the legislature. Thus, JCARR permits the legislature to “veto” all or part of a proposed agency action.

The proposal, Ohio House Bill 396 (HB396), would require JCARR’s recommendations to become a bill before the General Assembly, which, if passed by both Houses, would be presented to the Governor for a signature or a veto.  This approach will eliminate the “legislative veto” and improves the functioning of state government.

The Legislative Veto Problem

The problem is that such “legislative veto” provisions have been struck down as unconstitutional violations of the separation of powers all across the country.  The seminal case on the issue is Immigration and Naturalization Service v. Chadha,[1] where the U.S. Supreme Court struck down a federal legislative veto provision.  As the concurring opinion in Chadha noted, the holding is broad enough to invalidate almost every conceivable use of the legislative veto.  After that case, the Supreme Court reiterated its stance by issuing summary affirmances to lower court decisions invalidating legislative veto provisions.[2]

Fast forward to today, and 11 of the 12 State Supreme Courts to consider the issue have ruled that legislative veto provisions violate the separation of powers embodied in their state constitutions.   The Ohio Supreme Court would almost certainly fall in line with the majority on this issue.

The Ohio Constitution requires each branch of government to stay within the bounds its respective authority.  The legislative power of the state is vested in a general assembly,[3] the executive power is vested in the governor,[4] and the judicial power is vested in the courts.[5]  A statute that violates the doctrine of separation of powers is unconstitutional.[6]  Although the branches of government can’t be completely sealed off from one another, “[t]he principle of separation of powers is embedded in the constitutional framework of our state government.”[7]

Part of the Ohio Constitution’s embodiment of the separation of powers is represented by the Enactment and Presentment Clauses.  The Enactment Clause states that “t]he General Assembly shall enact no law except by bill,” which must pass both houses.[8]   The Presentment Clause requires that all bills be presented for the Governor to sign or veto before they become law.[9]

As Alexander Hamilton noted while defending a nearly identical Presentment and Enactment clauses in the U.S. Constitution:

[t]he primary inducement to conferring the power in question upon the executive, is to enable him to defend himself; the secondary one is to encrease the chances in favor of the community, against the passing of bad laws, through haste, inadvertence, or design.[10]

Another advantage of requiring the Governor’s approval of each legislative act is that it ensures that each bill is considered from a state-wide perspective.  Some legislation might grant a moderate benefit to 2/3 of the state at a huge cost to the other 1/3.  Requiring bills to go before the governor ensures that each law is passed by at least one person with a broad, state-wide perspective in mind.

As the US Supreme Court explained in Chadha, in order to preserve this balance of power in the government, “[t]he hydraulic pressure inherent within each of the separate Branches to exceed the outer limits of its power, even to accomplish desirable objectives, must be resisted.”[11]

Thus, the Presentment and Enactment Clause requirements apply whenever the legislative branch attempts to make rules of general application.  The U.S. Supreme Court has explained that an act of Congress is legislative if it has “the purpose and effect of altering the legal rights, duties, and relations of persons. . . outside the Legislative Branch.”[12]  “Amendment and repeal of statutes, no less than enactment, must conform with this requirement.”[13]

Applying these precedents to JCARR, the Constitutional problems are clear.  The legislature’s veto of proposed rules counts as a legislative act because it affects the rights of people outside the legislature.  This kind of action may only be taken by creating a bill that is presented to the Governor.

That is why the proposal before the Senate is so important.  As it stands, JCARR is an unconstitutional hindrance to the proper functioning of state government.  The General Assembly has a “back door” method to usurp the function of the executive branch, and the executive has no proper way to defend itself.

OEC Attorney, Grant Maki will deliver testimony before the Senate Committee in support of HB396 this Wednesday.


[1] 462 U.S. 919 (1983)

[2] See Process Gas Consumer Group vs. Consumer Energy Council , 463 U.S. 1216 (1983)

[3] Oh. Const. Art. II, §01,

[4] Oh. Const. Art III, §05

[5] Oh. Const. Art. IV, §01.

[6] State ex rel. Ohio Academy of Trial Lawyers v. Sheward, 86 Ohio St. 3d 451, 475 (Ohio 1999).

[7] State v. Hochhausler, 76 Ohio St. 3d 455, 465-466 (1996)

[8] Ohio Cost., Art. 2, Section 15(A)

[9] Ohio Cost. Art 2, Section 15(E)

[10] The Federalist No. 73, at 458 (J. Cooke ed. 1961) (A. Hamilton).

[11] Chadha, 462 U.S. at 951

[12] Chadha, 462 U.S. at 952

[13] Chadha, 462 U.S. at 954

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Columbus, OH – The Ohio Environmental Council (OEC) is praising State Representative Mark D. Okey (D-Carrollton) and echoing his call to action for state leaders to prevent exploitation of Ohio’s property owners and natural resources.  Today, Rep. Okey called on Governor John Kasich and legislative leaders to act on his proposed legislation to protect Ohio’s landowners from predatory leasing practices by the oil and gas industry.

“The OEC stands side by side with Rep. Okey in urging the Kasich administration and Statehouse leaders to put an end to predatory leasing and to establish consumer rights for property owners who wish to lease their land for oil and gas production,” said Trent Dougherty, Director of Legal Affairs for the Ohio Environmental Council.  “Land owners need better protection from unscrupulous oil and gas ‘landmen.’   The law should assure arms-length dealings for Ohio’s gasland communities.”

The call for strengthened consumer rights comes just days after a recent Wall Street Journal article chronicled Chesapeake Energy’s attempts to renegotiate Ohio landowners’ leases in an attempt to help the cash-strapped company.  The article cites that since 2008, more than 100 lawsuits have been filed across the country by landowners, who claim the company breached contracts.

Rep. Okey’s recently introduced “Truth in Leasing Act” (House Bill 493) would guarantee an honest leasing process by requiring “landmen” who secure leases on behalf of drillers to be subject to registration, licensing, and disclosure requirements, and establish consumer protection rights for property owners.

In February of this year, the state’s top lawyer, Attorney General Mike DeWine, urged, among other improvements in Ohio law, that his office or another state agency be empowered to help landowners with complaints about lease agreements for drilling.

“Arms-length lease negotiations will not only help protect landowners’ pocketbooks, but also protect the localized environment,” Dougherty added. “Absent fully protective regulations, effective lease negotiations can secure better protections for landowners’ safety and protection of their air, land, and water resources.

“From negotiating longer setbacks, to requiring post-drilling testing of water wells, to dictating how the land is reclaimed, the lease can be a powerful tool for a landowner to protect his or her property from environmental risks.  However, that is only the case if the landowner is on equal footing with the operator and the ‘landmen’ are held accountable,” said Dougherty.

OEC fully supports and endorses HB493. The OEC advocated for many of the bill’s provisions during the debate over the Governor’s Energy Bill (SB315).

“Gov. Kasich has renewed his push to make the 0il and gas industry pay its fair share in taxes.  The industry’s henchmen also should be ‘taxed’ with mandatory licensing, registration, and financial disclosure to protect landowners from the unscrupulous practices of predatory ‘landmen.’”

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(Posted by Trent Dougherty, Ohio Environmental Council)

After two short but intense months of debate, Senate Bill 315 (SB315), Governor Kasich’s MBR Energy Bill, passed the General Assembly this week.  The bill seeks to implement many of the proposals discussed in the Governor’s 21st Century Energy Summit this past September.

SB315 was actually a tale of two approaches to the legislative process.  The issues dealing with renewable energy, co-generation, and energy efficiency were a lesson in compromise, communication, cooperation between various stakeholders.  Wind Energy Advocates, environmental groups, business groups, the legislators, and the administration worked together to insure that fossil fuels would not become eligible to meet renewable energy requirements – with a limited exception, that is, for combined heat and power projects in two state universities.

The oil and gas provisions, on the other hand, consisted of (1) the Governor offering a decent, but modest proposal to strengthen fracking waste injection well regulations and updating Ohio’s drilling laws in light of boom of shale drilling and horizontal drilling; (2) followed by, as Director Jim Zehringer testified, 10 meetings between industry and the Administration to put industry’s stamp on the legislation; and finally (3) the inclusion of an 11th hour amendment, with no discussion nor debate, to weaken chemical disclosure.

Chairman Peter Stautberg (R-Anderson Twp.), during the House Floor debates on the bill, stated that the bill’s oil and gas provisions were a “balance between the Administration and the industry.”  Unfortunately, he is correct.  In order to reach that balance landowners’ rights, public accountability, and environment and human health protections had to be left off the scale.

Governor Kasich has promised that we are going to drill-baby-drill, but we are going to do it right, by the environment and by the citizens of Ohio.  However, important and significant amendments and additions that were offered by environmental and conservation organizations as well as members of the House and Senate were tabled, trashed, or tanked. 

 Still, to the Governor’s credit, there are updates to Ohio’s waste injection well oversight, as well as provisions that provide for pre-drilling testing of private water wells and higher penalties for lawbreakers.  Yet, without the protections dismissed and discarded by the General Assembly, SB315 does not fulfill the promise.

Unlike the fracking chemical suppliers, OEC provided full disclosure.  In both the Senate and House we offered nearly two dozen amendments to begin to strengthen protections for water quality and water use; make the permitting process more transparent, and make the industry accountable to Ohio’s gasland communities and property owners.  The bill got a little better with the Senate’s inclusion of increased penalties for violation, and providing some limitations on well pad construction in floodplains and public drinking water areas — thanks in no small part to the efforts of Senator Frank LaRose (R-Akron).

However, the House’s inclusion of the Halliburton Amendment that kept that forces citizens to prove injury from a non-disclosed chemical – an unprecedented hurdle if not bar to the court house to challenge the validity of trade secrets, and forces medical professionals to get the necessary information to protect their patients from the driller and not the state regulator was the last straw.  The Halliburton Amendment coupled with the Bill’s removal of the ability for an oil and gas permit to be appealed to the Oil and Gas Commission, the doors to gasland justice are slammed shut — two strikes against the civil justice system in one bill!

Here is just a small glimpse of the amendments that were discounted, and left on the cutting room floor by the General Assembly:

  •  Public right to know, comment, and appeal a permit

Objective: Give the public a voice in decisions that will affect their property and communities.

Require public notice and public comment for at least 30 days prior to making a final decision on a production well or waste injection well permit.  Also, permit aggrieved parties to appeal permits to the Oil and Gas Commission.  Current law slams the courthouse door on permit appeals.

  •  Public water source protection – Protect Water Quality

Objective:  Protect public well fields and floodplains from risk of surface spills

Prohibit the placement of a well drilling pad in a public water source protection area or a 100-year floodplain.

  •  Public water source protection – Protect Water Quantity

Objective:  Protect public water sources (rivers and reservoirs) and groundwater from being over tapped for oil/gas production, and limit reliance on waste injection wells.

Require drillers to develop a plan to recycle or otherwise treat wastewater

  •  Accountability and representation on the Ohio Oil and Gas Commission

Objective: Assure that the public representative to the Ohio Oil and Gas Commission has no allegiance to anyone other than the public

Prohibit the public member of the Ohio Oil and Gas Commission from having any financial interest in the oil and gas industry

  •  Public oversight and accountability of drilling activity, violations, and inspections

Objective: Enable the public to have ready access to information about incidents, investigations, inspections, and violations involving oil and gas activity

Require ODNR to report on its website a summary of each incident reported by any person and a summary of investigations, inspections, and violations involving oil and gas activity.

  •  Private well water protection

Objective:  Protect property owners’ well water from contamination

Entitle property owners to post-drilling water well sampling, at the oil/gas well owner’s expense.

  •  Property Owners Bill of Rights

Objection: Establish consumer rights to protect property owners from unscrupulous landmen.

Guarantee an honest leasing process by requiring the “landmen” who secure leases on behalf of drillers to be subject to new registration, licensing, and disclosure requirements, and establish the right of property owners to:

  • a “cooling off period” that enables a property owner up to 5 business days to cancel a leas
  • right to audit production records;
  • require immediate notice to landowner if lessee assigns or transfers mineral rights

For more see the testimony of NRDC, Sierra Club, and Buckeye Forest Council.

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The third in our Three-Part Series on HB 473 – Great Lakes Compact Implementation

( Posted by Grant Maki, Law Fellow, Ohio Environmental Council)

The Great Lakes Compact is an agreement between the Great Lakes state to manage their water consumption to protect our shared water and ecological resources.  Each state that signed the Compact must pass its own legislation to give it effect.  In this three part series, we are looking at ways that Ohio’s proposed implementing legislation falls short of protecting our waters or complying with the Compact.

Our first installment examined how HB 473 would restrict Ohioans’ rights to appeal administrative decisions.  The second installment noted that the proposed legislation would leave the tributaries that flow into Lake Erie out to dry.

In this final installment, we will look at the problems caused by and provisions that allow water users to average their withdrawals over a 90 day period, and by provisions that allow for potentially unending exemptions for “experimental” permits.

The Compact’s Framework

The Compact requires each Great Lakes state to establish thresholds that determine the amount of water that can be withdrawn without a permit.  Anyone who wants to withdraw more than the threshold amount must seek a permit.  The Compact requires states to ensure that permitted water withdrawals will not individually or cumulatively cause a significant harm to the quality or quantity of the water in the source watershed.

90 Day Averaging

Under HB 473, a water user only has to apply for a permit if their average usage per day over a 90 day period exceeds certain thresholds.  For example, most rivers that flow into Lake Erie are subject to a threshold of 1 million gallons per day, averaged over a 90 day period.

This opens the door for water users, such as oil and gas operations, to withdraw and/or consume quantities of water in excess of permit thresholds without having to obtain a permit.  For example, a facility could withdraw 6 million gallons of water over a few days and not consume any more water over the remainder of the 90-day period and not trigger the bill’s proposed gallons-per a day threshold for needing to seek a permit.

But such huge spikes in water usage could have serious consequences for fish and wildlife, which survive or perish based on minimum environmental conditions.  For example, walleye eggs and fry, as well as migrating steelhead trout, are particularly vulnerable to insufficient flow levels.  A short-term but intensive withdrawal could reduce the flow of a stream to the extent that these drivers of the Lake Erie fishery would be confined to small heated pools, which would kill them within hours.

Think of it this way.  If you were to withdraw all the air from a person’s home for 15 minutes and then open the windows, the oxygen levels would be just fine, averaged over 90 days.  But the residents of the home would all be dead.

That is why we are pushing to get the permitting requirements to kick in based on daily water withdrawals.

Potential Loophole for “Experimental Use” Permits

HB 473 provides for “experimental use” permits to allow the testing and development of innovative new water use strategies.  We are fully supportive of experimental use permitting.  But there are two problems with the way these permits would be handled under HB 473.

The first problem stems from a subtlety of the proposed language.  Section 1522.131 states that the Department of Natural Resources may refuse to issue an experimental use permit if it would result in a significant adverse impact on the source watershed.  But this implies that the chief may also issue the permit, even knowing that it will cause an adverse impact.  This is contrary to the Compact, and to sound natural resource management principles.

The second problem is that HB 473 doesn’t limit the number of times an applicant may renew their experimental permit, potentially allowing adverse impacts to continue indefinitely.

We propose requiring the Department of Natural Resources to deny permits that would cause significant adverse impacts.  We also suggest that experimental use permits should expire after 24 months, at which point they could be renewed if the applicant provided a reasonable justification based on the need for further testing, or a new and different approach to water use that might lead promising results.

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The second in our Three-Part Series on HB473 – Great Lakes Compact Implementation

(Posted by Grant Maki, Law Fellow at the Ohio Environmental Council)

The Great Lakes Compact is an agreement between the Great Lakes state to manage their water consumption to protect our shared water and ecological resources.  Each state that signed the Compact must pass its own legislation to give it effect.  In this three part series, we are looking at ways that Ohio’s proposed implementing legislation falls short of protecting our waters or complying with the Compact.

In our first installment, we examined how Ohio’s proposed implementing legislation—HB 473—represents an unprecedented restriction on the rights of Ohio citizens to appeal when an administrative decision causes them harm.

In this installment, we will discuss ways in which the proposed legislation fails to protect the waters that flow into Lake Erie, and how this lack of protection could eventually harm the lake as a whole.

Compact Requirements

The Great Lakes Compact gives state agencies the ability to prohibit water withdrawals that would have a significant adverse impact on the watershed that the water is being pulled from—the “source watershed.”   Section 1.2 of the Compact explains that when water is withdrawn from the watershed of a stream that flows into a Great Lake, the source watershed “shall be considered to be the watershed of that Great Lake . . . with a preference to the direct tributary stream watershed” that is the source of the water.

This language means that the Ohio DNR must not allow any significant adverse impacts to Ohio’s portion of Lake Erie.  It also requires DNR to consider any significant adverse impact to the stream watershed from which the withdrawal occurs.

Current Ohio Law

Ohio has already passed the first round of legislation to implement the Compact.  House Bill 416, passed in December 2008, defined “source watershed” as either the Lake Erie basin considered as a whole or the individual source watershed from which the withdrawal occurred, considered as a whole, just like the Compact.  This was codified in 1522.07(B) of the Ohio Revised Code.  This language is codified as the stated intent of the General Assembly in passing the Compact structure, and was based on the negotiated definition of source watershed by the regulated community and environmental groups.

It is the understanding and intent of the general assembly that Section 4.11.2 of the great lakes-st. Lawrence river basin water resources compact as enacted in section 1522.01 of the Revised Code shall be interpreted to require that a withdrawal or consumptive use will be implemented so as to ensure that the withdrawal or consumptive use will result in no significant individual or cumulative adverse impacts on the quantity or quality of the waters and water dependent natural resources of either of the following: The basin considered as a whole; or The applicable source watershed of lake Erie considered as a whole. – ORC 1522.07(B)(1)

HB 473 would leave the tributaries out to dry

In an abrupt 180 degree turn that essentially negates the agreement made by the regulated community and enviros in 2008 (not to mention the intent of the 127th General Assembly),  HB473 would change our definition of “Source Watershed” to only mean “Lake Erie as a whole.”  This definition would allow approval of water withdrawals that would cause a significant adverse impact to a tributary, as long as the Lake as a whole would not suffer a significant impact.

For example, consider the impacts of First Energy’s Bayshore Power Plant, which pulled nearly 700 million gallons of water per a day from the Maumee River.  A report commissioned by the Ohio EPA estimated that the plant’s water intake system killed more than 46 million adult fish and over 2 billion fish larva per a year.  To name just one species, the plant killed nearly 10% of the Maumee River’s walleye population annually.  That is definitely a significant impact on the Maumee River, and upon local people who depend on the walleye for their livelihood or recreation.  But at the same time, it is only a small amount of the walleye population of Lake Erie as a whole.

Under the Compact, and under current Ohio Law, the Department of Natural Resources would be able to strictly review or even deny a permit for a plant like First Energy’s because it would cause a significant impact to the Maumee.  But under the proposed language of HB 473, DNR would have little authority to deny such a permit because it would not cause a significant impact to all of Lake Erie, considered as a whole.

But the whole is only as good as the sum of its parts. A healthy Lake Erie is dependent upon the health of the tributaries, which are essential for maintaining water levels; providing habitat and spawning grounds for prized sport fish; and providing nutrients that are key to the food chain of Lake Erie.

 

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