The latest developments in the saga involving current hearing process in the Ohio Environmental Review Appeals Commission (ERAC) shows chaos rains for the hundreds of appeals pending before the Commission. As previously covered on this blog (see, A Dozen Companies File Constitutional Challenges to 1-hour Hearings), in response to legislative deadlines imposed on the Commission, ERAC has scheduled or has proposed to schedule 1-hour hearings with no discovery on ALL pending appeals.
Businesses as well as environmental groups were very concerned with ERAC’s approach. The first legal challenge to be filed sought a writ of mandamus from the 10th Appellate Court to compel ERAC to provide for full blown hearings (de novo hearings). The State, attorneys for ERAC and the attorneys for the 13 companies negotiated an uncontested motion for the writ. Despite the uncontested nature of the motion, the Court issued a ruling declining to issue the writ. However, the ruling contained some non-binding language (dicta) regarding due process rights:
Indeed, the clear legal right and clear legal duty identified are uncontroversial-relators have a right to de novo hearings that comply with due process, and the Commission has the duty to provide for such.
Despite the language in the order, ERAC continued to proceed with holding 1-hour hearings. I even heard a story of one attorney who tried to put a witness on to introduce evidence only to be cut-off after thirty minutes by the Commission telling them "your time is up."
The attorneys representing the original 13 companies followed the Appeals Court advice and filed a declaratory judgment action in common pleas court. Shortly after the suit was filed, the Court issued a temporary restraining order (TRO) against ERAC preventing the Commission from holding any of the 1-hour hearings in the 40 upcoming hearings involving the 13 companies.
Even after the TRO was obtained, ERAC continued to proceed with 1-hour hearings in cases that were not covered by the Order. Chairwoman of the three-member commission, Lisa Eschleman, was quoted in the Columbus Dispatch as saying: "ERAC is going to proceed as scheduled so that we can comply with the mandate of the General Assembly,"
Because ERAC is continuing to proceed with 1-hour hearings on appeals not involving the 40 subject to the TRO, each Appellant is being forced to go to the Court and request their own TRO. Others have elected just to proceed with 1-hour hearings probably betting that the decision will be overturned on appeal because due process was not provided.
If companies and environmental groups are both upset with the current process, why hasn’t the State which represents Ohio EPA and the Ohio Department of Agriculture (among others) been vocal? I have been told that one reason the State is not objecting to ERAC’s process is that the whole mess has forced settlement of a lot of pending appeals. Another reason for the lack of concern maybe that 1-hour hearings make it much more likely that the decision of the State Agency will be upheld due to the limitations on presenting evidence.
Hopefully, the Court will issue a decision in the declaratory judgment action that results in a permanent fix- restoring full hearings on appeals. Until such a decision is issued, the situation involving the hundreds of appeals before the Commission remains in a state of flux.
Meanwhile, the outcry has grown (including me) that the real solution to this problem is to fund ERAC who has a tiny budget. Only problem- where do you get the money in a State which is facing a $1 billion dollar hole in their current budget. On Tuesday, the Columbus Dispatch issued a editorial against legislative deadlines and supporting more funding:
"Such a delay demands further explanation, but arbitrarily rationing time before the commission is unreasonable. Lawmakers should consider whether the three-person commission, which has only two additional employees, needs more help. Unlike other such boards, ERAC members conduct all their own hearings, do their own legal research and write their decisions."