Lawsuit filed against the Environmental Review Appeals Commission (ERAC) in Franklin County Court of Appeals

The Environmental Review Appeals Commission (ERAC) has taken an aggressive response to deadlines imposed by the Ohio Legislature compelling ERAC to render decisions in 339 appeals in a matter of months. It issued orders in all pending appeals canceling prior hearings and establishing an expedited hearing format that consists of the following:

• one hour hearings- split between the sides equally
• no presentation of witnesses
• five page briefs
• no meaningful discovery (depositions, document production)

Limits on the hearings were reportedly necessary to comply with new deadlines for ERAC to issue rulings, which were included in the biennial budget bill (HB 1).

The Commission reportedly took 339 cases, divided it by the number of days, minus the number of holidays, which resulted in six de novo hearings a day. Previously, average de novo hearings at ERAC lasted about five days.

The deadlines imposed in the Budget Bill were not opposed by the business community, only environmental groups sought a veto from Governor Strickland. However, now that ERAC has responded to the deadlines with its expedited hearings, businesses are scrambling to address the issue.

A lawsuit was filed in the 10th Appellate Court on behalf of over a dozen companies with forty appeals pending before ERAC. The lawsuit (called a Writ of Mandamus) seeks the Appellate Court to issue an order to compel ERAC to comply with due process requirements. The suit states:

A writ is necessary because the Commission has embarked upon a process of scheduling hearings de novo in over three hundred pending appeals that limit appellants, including the Relators, to not more than one-half hour to present evidence in support of their appeals, as more fully described below. Such a patent deprivation of Relators’ right to a hearing de novo that adheres to the most basic requirements of due process can only be adequately addressed through issuance of the requested writ.

You can view the actual court documents that have been filed.

The appeal filed with ERAC on the current netting permit issued to Middletown Coke is one of the cases that was cancelled and has been told would have only a one hour hearing at some point next year.

Stay Order.pdf161.78 KB
AEP Ohio et al vs Ohio ERAC_0030.pdf1.46 MB