Can't Fight Ohio EPA
By PAUL E. KOSTYU Copley Columbus Bureau chief
COLUMBUS - Got $70 to throw away?
File an environmental appeal.
Those who challenge a decision by the Ohio Environmental Protection Agency will lose 92 percent of the time. You might as well throw the money into the landfill the EPA approved next door.
An analysis of 33 years’ worth of records by Copley Ohio Newspapers shows that individuals, corporations or consumer groups have little chance of successfully challenging the agency responsible for upholding the state’s environmental laws. For example:
Even as millions of flies swarmed into houses and cars and on to people, food and pets near the chicken warehouses run by Buckeye Egg in central Ohio, the EPA issued permits allowing the company to expand. Neighbors appealed. They lost.
-- When birds attracted to a county landfill posed a hazard to planes taking off and landing at a nearby small airport, the EPA said it lacked authority to help. The airport’s owners appealed. They lost.
Those unhappy with an EPA decision can file an appeal with the Environmental Review Appeals Commission, a three-member panel established in 1972 to act independently of the EPA.
But “in a battle between experts, the director wins,” said Richard Sahli, who was chief legal counsel for the EPA from 1987 to 1991.
By law, the commission “must affirm the director unless they find he acted unreasonably or unlawfully,” said Sahli, who now argues cases before the commission. He represents Club 3000, a citizens group fighting the expansion of Countywide Landfill in southern Stark County. He knows his chances of preventing the expansion are slim.
The commission must defer to the EPA’s interpretation of environmental rules. “So, 90 percent of the evidence could say the director’s wrong,” Sahli said, “but as long as there is a fact established that would support him, (the commission is) supposed to defer. I call that the insane director test.”
Sign of things right or wrong?
The odds don’t surprise Peter A. Precario, who was the EPA’s lawyer when the agency formed in 1972 and served on the commission for six years beginning in 1988.
Now in private practice, Precario represents the Village of Bolivar, which also is challenging the expansion of the Countywide Landfill. He said in the 1970s it made sense that a lot of the EPA’s decisions were overturned by the commission.
“At the beginning, there were a lot of unknowns,” he said. “We didn’t know from one day to the next what the hell we were doing. We were working with a body of regulations one day that would be scrapped four days later.”
Precario said the hundreds of early cases before the commission, then called the Environmental Board of Review, set precedent that the current commission follows.
Defenders of the EPA and the commission said the high rate of decisions in the agency’s favor means the EPA is doing its job right and there’s no reason to overturn its judgment.
“The system seems to work,” said Richard Shank, EPA director from 1987 to 1990 and now executive director of The Nature Conservancy — Ohio. “If the system is working right, the agency (EPA) should be making decisions that are clearly based on the existing law, and therefore the commission would basically have to uphold those decisions.”
“Some cases take two to four years to get through the Ohio EPA,” Precario said, “so it had better be doing it right. (The cases have) been gone over by dozens of experts. And it’s not like I agree with the EPA all the time.”
The EPA has a 76 percent success rate in the state’s appellate courts. Most of those appeals are handled by the 10th Appellate Court in Franklin County. Even when the commission rules against the EPA, the appellate courts often side with the EPA.
When the commission said a Cleveland suburb had an interest in a project affecting nearby wetlands, for example, the EPA appealed, and an appelate court sided with the EPA.
The EPA has a 71 percent success rate at the Ohio Supreme Court.
Six years to learn
Precario described the commission as conservative in its approach to the law, making it “a tough burden for those challenging an EPA decision.”
He said the cases the commission hears now are harder, technologically and legally, than those in its early days.
Most of the time, commission decisions are unanimous, though on a rare occasion a member will split with the majority.
By law, all three commission members cannot come from the same political party. Each serves a six-year term, which can be renewed. The appointments, made by the governor, are staggered every two years. One member must be an attorney and one must represent the “public interest,” which Precario said is defined broadly. But he said it’s difficult to imagine a commissioner not being an attorney because the cases are so dependent on understanding the law.
“It’s not a seat-of-the-pants operation,” he said.
If commissioners don’t have an understanding of environmental case law and precedent coming into the board, Precario said, they do by the end of a six-year term.
Reach Copley Columbus Bureau Chief Paul E. Kostyu at (614) 222-8901 or e-mail: paul.kostyu@cantonrep.com
For the record
Rarely does Ohio’s Environmental Review Appeals Commission part with the Ohio EPA in its decisions, especially since the mid 1980s. In fact, at least one former member of the commission said it would be “unreasonable” to do so.
Name Years Served Appointed By ERAC Record
Christopher Jones 1999-2004 Taft 92.1 %
Donald Schregardus 1991-98 Voinovich 85.2 %
Richard Shank 1987-90 Celeste 71.2%
Warren Tyler 1985-87 Celeste 72.2%
Robert H. Maynard 1983-85 Celeste 93.5%
Wayne S. Nichols 1981-82 Rhodes 61.4%
James F. McAvoy 1979-81 Rhodes 37.6%
Ned. E. Williams 1975-78 Rhodes 55.1%
Ira L. Whitman 1972-74 Gilligan 42.4%
-- During the 33-year life of ERAC, the Ohio EPA director and those linked with the agency’s side of a case won 70.9 percent of the time.
-- There are 470 pending ERAC cases dating to 1991: 346 against Jones, 61 against Schregardus, and 44 since Jan. 1 against new EPA director John Koncelick
-- More ERAC cases were filed against Jones or Schregardus than the five predecessors of Schregardus combined.
Source: Environmental Review Appeals Commission, as of June 30.
Canton Repository Nov, 6, 05 -Analysis proves you can’t fight the EPA
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