LegalNewsline.com reports that Ohio Attorney General Marc Dann has been very busy in his first 6 months in office, filing almost 60 environmental cases. Click here for a list of all of the suits. According to legalnewsline, many of these cases had been languishing for years, and Dann was running up against a 5-year deadline that would have capped the civil penalties the state could ultimately collect.
A Plain Dealer article examines the new legal specialty of global warming law. The speciality was fueled by a recent Supreme Court decision which held that the EPA may regulate greenhouse gas emissions. See Massachusetts v. EPA (Apr. 2, 2007), Case No. 05-1120. Cleveland law firm McMahon DeGulis specializes in this area, and advises clients on federal, state and local regulations regarding carbon pollution. There are many other legal issues involved, such as how the risks associated with climate change can be insured.
Lawyers specializing in this new area can help answer legal questions concerning carbon "credits". At the Chicago Climate Exchange, businesses can buy and sell greenhouse gas units. Companies that are under their quota of carbon pollution may sell these credits, and companies that have exceeded their quota can buy them. Countries who have adopted the Kyoto Protocol require companies that have exceeded their standards to buy carbon offsets. The United States may adopt this "cap and trade" system. There are many legal issues involved in carbon trading, such as what kind of property rights attach to a credit.
See Global-Warming Threat Can Pose Legal Risks, and Firms See a Niche by Alison Grant, The Plain Dealer, May 16, 2007; What's at Issue, The Plain Dealer, May 16, 2007.
Summit County judge Jane Bond upheld S.B. 82, which prohibits cities from requiring their employees to live within city limits. The Cuyahoga County Court of Common Pleas also held the statute did not violate home rule provisions of the Ohio Constitution: See our prior post: Read the Cuyahoga Common Pleas Decision Regarding City Residency Requirements. The City of Akron appealed the Summit County decision to the Ninth District. See Akron Appeals Worker Residency Ruling, Akron Beacon Journal, Apr. 4, 2007.
The opinion is City of Akron v. State of Ohio (March 30, 2007), Summit County Common Pleas Case Nos. CV2006-05-2759, CV2006-05-2797. The appeals court case number is CA-23660. The documents filed in the common pleas case and the appeal can be viewed at the Summit County Clerk of Courts case search.
HB 92 provides for the creation of a database of properties and vehicles formerly used as Meth labs. The bill also creates procedures by which a property or auto owner can obtain EPA certification that the meth residue has been removed, and have the property or vehicle removed from the database. See New Bill Will Set Guidelines for Clean Up of Meth Labs by Karen Schaefer, WKSU News, Mar. 6, 2007.
In an executive order issued last week, President Bush mandated that each agency must have a regulatory policy office run by a White House appointee. See Executive Order, Jan. 18, 2007. The policy office will supervise the development of regulations and policy statements. Moreover, any significant guidance documents must be submitted to the White House for review. In order to warrant new agency regulation, agencies must articulate the "specific market failure" or "problem that justifies intervention". While business groups favored the executive order. Consumer, labor and environmental groups said it will interfere with agencies' ability to protect the public. Bush Directive Increases Sway on Regulation by Robert Pear, New York Times, Jan. 30, 2007.
Could the increased White House control of regulatory agencies lead to more "silent tort reform" by federal regulatory preemption of state laws? See our prior posts: More on Silent Tort Reform; Are Federal Regulators Thwarting Personal Injury Claims?
The Cuyahoga Court of Common Pleas recently upheld 125th General Assembly HB 278, enacted in 2004. This law abolished municipal home rule power to regulate gas wells and declared that the Division of Mineral Resources Management in the Department of Natural Resources has exclusive authority to regulate the permitting, location, and spacing of oil and gas wells in the state. Seven suburbs and a group of residents sued the Ohio Department of Natural Resources, claiming that the statute was invalid because there were insufficient regulations in place. Regulations were adopted one year later, and the judge found these regulations cured any defect in the statute. The cities can still enact ordinances to regulate drilling, if they do not conflict with the state's regulations. Cuyahoga Judge Upholds State's Right to Regulate Gas Well Drilling in Suburbs by Tasha Flourney, The Plain Dealer, June 21, 2006. The case is RICHARD KELLNER, ET AL vs. MIKE SPONSLER, ET AL (June 21, 2006), Cuyahoga Common Pleas Case No. CV-05-561362. To see the court docket, go to Cuyahoga County Court Docket. For a discussion of home-rule powers in relation to H.B. 278, see Testimony of Herbert Brown before the House Energy and Environment Committee, Nov. 5, 2003.
A recent article criticized the Environmental Review Appeals Commission as taking too long to make decisions; siding with the EPA most of the time and using outdated technology. Most of the cases pending before the ERAC are appeals of EPA decisions, although the ERAC also hears appeals of decisions by the state fire marshal, county boards of health, the state Emergency Response Commission and the Department of Agriculture. Some of the pending cases were filed as long ago as 1991. The ERAC does not have enough commissioners to hear all the pending cases. The article also criticized the ERAC for making appeals less accessible to the common person. Appeals Process at EPA Slower than Slow by Paul E. Kostyu, The TImes-Reporter, November 7, 2005. For more information on the ERAC see 2005 Operating Budget Analysis - ERAC.
Judge Robert Feighan set aside a May 2004 verdict against landfill operators Mercomp, Inc., pending appeal. The Ohio Attorney General filed the suit against Mercomp on behalf of the Ohio EPA. See Landfill Verdict Gets Set Aside by Tom Corrigan, Brooklyn Sun Journal, July 14, 2005. See also $1.93 Million Penalty Issued Against Landfill Operator Ohio EPA News Release, May 12, 2004. Source: Cuyahoga County Planning Commission Weblog, July 15, 2005.
