Ohio Environmental Law Blog : Ohio Environmental Lawyer & Attorney : Joseph Koncelik : Frantz Ward Law Firm : Environmental Regulation, Land Use, Compliance : Cleveland, Ohio

With about ten days until election day races around the country are getting more heated.  Ohio's race for Governor is a study in contrasts on many issues.  Energy policy is certainly one of them.

Governor Strickland has pushed the development of advanced energy projects aggressively during his tenure.  Through passage of Senate Bill 221, he created the states renewable portfolio standard (RPS) mandating 12.5% of the State's energy come from renewable sources. 

He also created grant programs that sought to foster renewable energy projects in the State, such as the Advanced Energy Fund. According to the Ohio Department of Development's webpage the Advanced Energy Fund has made more than $41.9 million in investment in nearly 400 advanced energy projects.  The Fund is set to expire at the end of this year.

Congressman Kasich has built a solid lead in the polls.  One of his more creative proposals is to do away with the Ohio Department of Development as it is currently constructed.  He wants to transform the Agency into a non-profit organization with corporate board members. 

How will his proposal impact the development of advanced energy in the State?  It may depend upon the membership of the board.  The business community has some deep divisions when it comes to advanced energy.  Those same divisions appear between the candidates.

Kasich has expressed concern with renewable mandates and subsidies.  In a September Plain Dealer article this is how his spokesperson described his stance:

Strickland said the Republican would consider repealing an Ohio policy requiring that 12.5 percent of the power sold in Ohio come from renewable technologies by 2025.

The Kasich campaign said the governor's portrayal of Kasich's stance is inaccurate.

"John does not oppose the renewable energy standard and would not seek to repeal it," Kasich spokesman Rob Nichols said in an e-mail.

Kasich recently questioned the cost of the energy standard in an interview with the Dayton Daily News. He said he disagreed with the mandate if it increases consumers' utility bills.

Manufacturers who are deeply concerned about rising electricity prices in Ohio like Kasich's stance- go for the lowest cost alternative. Renewable energy manufacturers and companies that supply parts to those project may have a different perspective.

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While the political and policy focus is clearly on the Country's struggling economy, caught within that debate is U.S. policy on climate change.  As the economy continued to languish this summer, any hope of a cap and trade bill emerging from Congress died. 

The bill was a victim of a Congress that created a Christmas tree of regulation out of a basic market-based concept.    In the end the bill was labeled  "cap and tax."  And who raises taxes during the middle of a recession?

In fact, who passes any major piece of environmental legislation during a bad economy?  While I don't subscribe to all the viewpoints of the organization, a fascinating chart featured in an article by Daniel Weiss appearing on the Center for American Progress website paints a vivid historical picture that ties the state of the economy to the prospects for passage of major environmental legislation. 

This from the article:

"The first Clean Air Act, Clean Water Act, Endangered Species Act, and Resource Conservation and Recovery Act (hazardous waste disposal) were all enacted when unemployment was 6 percent or lower. Unemployment is 50 percent higher now. Only four major environmental laws were enacted with annual unemployment over 7 percent, and none with unemployment greater than 7.5 percent. Unemployment averaged 9.3 percent in 2009 and 9.7 through September 2010."

The Congressional Budget Office provided testimony in August 2010 that the economy faces a slow recovery.  Some have coined the phrase a "jobless recovery."  The CBO says the unemployment rate, currently at 9.5 percent, will not fall to around 5 percent until 2014.

Coupling the CBO forecast with the historical track record on passing environmental legislation, climate change legislation may not have a serious hope of passing until 2014 or later. 

With no legislative alternative, EPA will continue move its climate regulatory agenda forward.  Environmentalists will continue to push nuisance claims in the courts.  Unfortunately, the inefficiencies of "command and control" regulation and litigation will be the U.S. policy on climate change for the foreseeable future.

[Note:  The New Yorker's, Ryan Lizza, has an very interesting article on the inside the beltway politics regarding cap and trade legislation.  A grand bargain between environmental groups and industry was scuttled by poor timing, unfortunate events and political infighting] 

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On October 6th, the Federal Trade Commission (FTC) published the final revisions to the 1988 "Green Guides" which provide guidance to companies when making environmental claims regarding their products.  The FTC is seeking public comments on the proposed changes until December 10, 2010, after which it will decide which changes to make final.

The FTC can take legal action against unfair or deceptive marketing practices under Section 5 of the FTC Act.  The 1988 "Green Guides" provide standards for asserting environmental benefits or advantages of products.  However, the 1988 guides were outdated.  Since their release in 1988, the number of companies asserting environmental benefits relative to their products has grown exponentially as well as the type of claims being asserted.

The proposed revisions to the "green guides" (copy here) provide much more detail than the 1988 version.  For the first time issues such as- renewable energy claims, carbon offsets, and use of renewable materials are addressed in the proposed revisions.

Past court decisions highlight the importance of the guides.  Judges have been willing to abide by the guidance set forth in the guides in determining whether a claim constitutes an unfair or deceptive marketing practice. 

Here are some of the key proposed revisions:

• Stay away from general environmental benefit claims.  These general claims such as "green" or "eco-friendly" are almost impossible to substantiate.  The requirement to justify any green claims is a central requirement of the guides.
• Third Party Certifications- Seals or endorsement of environmental benefits will receive heightened scrutiny.  Any material connection to the certifier must be disclosed.  Also, a 3rd party certification doesn't eliminate the requirement to substantiate all claims.
• Renewable Energy-  If a company wants to say they utilize renewable energy in the manufacturing of their product, they better be prepared to provide more detail.  For example, if the company does not have its own wind or solar generation sources and is only purchasing RECs, it must disclose this as part of its claim.  If you generate your own renewable energy, but sell the RECs you cannot claim you use renewable energy.
• Climate Change-  The concept of "additionality" has entered into marketing claims regarding carbon offsets.  A company cannot claim it is offsetting its carbon emissions if those reductions were required by law.
• Recycling- Proposed revisions will create various tiers for claiming your product is recyclable.  If the product is only partially recyclable due to lack of access to recycling, then any recycling claim must carry with it certain qualifications.

This is just a brief highlight of the many topics covered in the revised guidelines.  Once the revisions are finalized, the guides will likely cause wholesale revisions to marketing campaigns for products.  While companies will still have a strong incentive to market the green attributes of their products, those campaigns will have lawyers reviewing the labeling, support for claims and mandatory qualifications required under the guides.

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In a prior post I discussed the outcry from industry over U.S. EPA's proposed boiler MACT rules.  The rules would establish standards for emissions of hazardous pollutants for commercial and industrial boilers.

As discussed in the post, many have criticized EPA's methodology for establishing standards.  Even some State regulators (including Ohio EPA) provided comments criticizing U.S. EPA. 

Perhaps no greater business group has been more critical than the biomass industry who indicated the entire industry would be placed at a significant disadvantage under the proposal.

Apparently, U.S. EPA is going to listen to these criticisms and completely revise the boiler MACT rule.  In a letter from Administrator Jackson responding to members of the U.S. Senate, Jackson says industry failed to provide adequate data regarding emissions prior to the rule development.   The Administrator goes on to say that EPA now has received abundant data and will completely revise the proposed rule. 

U.S. EPA  is under a Court order to develop the boiler MACT rule.  The Agency received an extension to January 16, 2011 to issue its revised rule.

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Northeast Ohio has led the state in the adoption of ordinances that establish setback requirements from streams and wetlands.  Buried within municipal codes is the requirement to stay out of buffer areas surrounding streams and wetlands. 

Homeowners, businesses and developers often learn of these requirements after they go to the City with their designs for additions, expansions or subdivisions. 

There is a lot of misinformation as to whether cities are required to adopt these ordinances.  Some municipalities are telling citizens and developers they were mandated by Ohio EPA to adopt them. While there was a very big effort to try and push adoption of these ordinances, let's be clear, there is no legal mandate in Ohio at this time to adopt them. 

The two most common model ordinance that many municipalities have adopted are either the Northeast Ohio Storm Water Task Force and Chagrin River Watershed Partners model ordinances.  (The Chagrin River Watershed Partners website provide very good information regarding riparian setbacks and their purpose.)

What are municipalities required to do to control stormwater?

The legal requirement for local governments to adopt various stormwater control ordinances stems from Ohio EPA's implementation of the MS4 program (Small Municipal Separate Storm Sewer Systems).  Each local government that has ownership and control over an MS4 is required to develop a Stormwater Management Program (SWMP).  There are certain required elements of the SWMP, including the adoption of certain storm water ordinances, including:

• Pre-construction stormwater controls
• Post-construction stormwater controls
• Illicit discharge, detection and elimination
• Erosion and sediment controls

As part of the post-construction stormwater program, the municipality must include information on any non-structural stormwater requirements it has imposed.  One possible non-structural stormwater control technique can be wetland and stream setbacks (buffers). 

Where are Ohio EPA's legal requirements specified?

Ohio EPA's NPDES General Permit for the MS4 program permit (Permit #OHQ000002) only requires a rational statement that discusses what non-structural BMPs were selected, including BMPs designed to protect riparian areas and buffers protecting sensitive water bodies. See, Section III.B.5.e.iii of Permit #OHQ00002. Ohio EPA's permit  does not require the MS4 community to adopt riparian setbacks.

OAC Chapter 3745-39, which establishes the minimum regulatory requirements for MS4 program, does not mandate adoption of setbacks. It only discusses setbacks as one option for implementing non-structural stormwater controls. Ohio EPA's comment below the regulation establishing minimum requirements for MS4 communities:

Non-structural best management practices are preventative actions that involve management and source controls such as: policies and ordinances that provide requirements and standards to direct growth to identified areas, protect sensitive areas such as wetlands and riparian areas, maintain or increase open space (including a dedicated funding source for open space acquisition), provide buffers along sensitive water bodies, minimize impervious surfaces, and minimize disturbance of soils and vegetation; policies or ordinances that encourage infill development in higher density urban areas, and areas with existing infrastructure; education programs for developers and the public about project designs that minimize water quality impacts; and measures such as minimization of per cent impervious area after development and minimization of directly connected impervious areas.

In other words, communities are free to consider a mix of non-structural controls which could include riparian setbacks.

What about distances of setbacks?

Model ordinances have between 25 - 300 feet as required buffers.  Does Ohio EPA mandate a specific distance?  No.

Ohio EPA has only included setbacks in a couple NPDES General Permits for specific sensitive water bodies (the Big Darby and the Olentangy). Here is the requirement from the Big Darby general construction stormwater permit:

The stream setback corridor (calculated using one of the methods in Part III.G.2.b of this permit) consists of up to 3 zones.  Zone 1 extends from 0 to 25 feet from the stream edge. Zone 2 extends from 25 to 100 feet from the stream edge, and Zone 3 extends from 100 feet to the outer edge of the setback corridor.

There is a formula for determining the stream setback corridor.  Then the Agency divides up the setback area into three zones.  Each zone has its own mitigation requirements.

While Ohio EPA has selected two sensitive rivers to mandate riparian setbacks, it is still not determined a minimum setback distance.  The NPDES General Permit for the MS4 program does not establish a minimum setback distance if a community elects to utilize this non-structural BMP.

OAC Chapter 3745-39 does not contain a rule specifying minimum distances for riparian or wetland setbacks. 

(For more information on the purpose of Riparian Setbacks, click here)

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