2018 Ohio 555
Ohio2018Background
- FWAP and Food and Water Watch sued ODNR chief Rick Simmers, ODNR director James Zehringer, the State, and the Governor seeking a writ of mandamus to compel rulemaking under R.C. 1509.03 and 1509.22 for storage/recycling/treatment/processing/disposal of oil-and-gas waste.
- Plaintiffs allege ODNR has been allowing 23 facilities to operate under temporary authorizations/orders instead of promulgating the statutorily required rules and permit procedures (examples: IWC in Youngstown; EnerGreen in Belmont County).
- Plaintiffs submitted affidavits from individual members (Castles, Wilkins, Mshar) asserting odor, health concerns, and exposure to contaminants; defendants moved for summary judgment arguing lack of standing and, as to the State, lack of a legal duty.
- The Tenth District magistrate recommended, and the court of appeals adopted, summary judgment for respondents on standing grounds; one judge concurred in part, finding injury shown for one member but redressability lacking.
- The Ohio Supreme Court affirmed: it held plaintiffs waived certain standing theories (R.C. 2731.02 and taxpayer standing), plaintiffs’ members failed to establish traditional (associational) standing, and the public-right doctrine (Sheward exception) did not apply.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Associational/traditional standing | FWAP: members (Castles, Wilkins, Mshar) suffered concrete injuries (odors, health risks) traceable to ODNR inaction and thus FWAP may sue on their behalf | Respondents: affidavits show only speculative harms; redressability not shown; no concrete injury for most members | Held: Castles and Wilkins speculative, fail injury; Mshar’s odor allegation arguably concrete but redressability not shown—associational standing fails |
| Redressability of mandamus relief | FWAP: compelling rulemaking under R.C. 1509.22(C) will establish protections (permits, operational standards) that can remedy harms | Respondents: uncertain what rules would be promulgated; cannot show rules would alleviate alleged harms | Held: Court concludes redressability not demonstrated for member claims; rulemaking might not address specific odor concerns — plaintiffs fail redressability requirement |
| Public-right doctrine (Sheward) exception to standing | FWAP: Sheward public-action rule should allow suit without individual injury because ODNR failed to perform statutory duty | Respondents: Sheward is narrow, rarely applied; plaintiffs cannot show a ‘rare and extraordinary’ case or direct divestment of judicial power | Held: Court refuses to expand/extend Sheward; public-right doctrine not available here |
| Waiver of alternative standing theories | FWAP: asserts statutory standing under R.C. 2731.02 and taxpayer standing | Respondents: plaintiffs waived these arguments by failing to raise them before the magistrate/court | Held: Arguments waived; not preserved on appeal |
Key Cases Cited
- State ex rel. Ohio Academy of Trial Lawyers v. Sheward, 86 Ohio St.3d 451 (1999) (announced narrow public-right exception to standing in rare and extraordinary cases)
- Moore v. Middletown, 133 Ohio St.3d 55 (2012) (articulates traditional standing requirements: injury, causation, redressability)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (federal formulation of standing: injury-in-fact, causation, redressability)
- ProgressOhio.org, Inc. v. JobsOhio, 139 Ohio St.3d 520 (2014) (limits on public-right doctrine and standing requirements)
- Banford v. Aldrich Chem. Co., Inc., 126 Ohio St.3d 210 (2010) (offensive odors can constitute cognizable injury)
- Fortner v. Thomas, 22 Ohio St.2d 13 (1970) (courts must avoid issuing advisory opinions)
- State ex rel. Sautter v. Grey, 117 Ohio St.3d 465 (2008) (Rules of Civil Procedure apply to extraordinary-writ actions)