The Ohio General Assembly included in the state budget a series of deadlines for issuing decisions in environmental appeals. (See prior post) The deadlines apply to the Environmental Review Appeals Commission (ERAC) which hears administrative appeals for hundreds of Ohio EPA and other state Agency actions. Here are the deadlines imposed on ERAC:
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.
ERAC has responded in a forceful way to the imposed deadlines. It has been issuing orders for numerous pending appeals that restructure the normal hearing process. 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. (Here is an example ERAC order on one of the many appeals facing the deadline)
For many complicated environmental cases heard by ERAC it is impossible to present the issues in a coherent and supported manner under this structure. Based upon the limited amount of information provided to ERAC under this structure suggests they will mostly play it safe in rendering decisions by perhaps deferring to the Agency.
Perhaps this is an example of unintended consequences, but it seems almost certain that this will not be the end of the story. Additional legislative action to tweak or change the budget language almost seems a certainty.