In November 2014, two groups opposed to oil and gas development sued officials of the ODNR and the Governor to have 23 permits issued for the storage and disposal of brine wastes at privately owned sites in Ohio declared null and void. See “Group Sues to Enjoin Use of Permits in Ohio for Storage, Recycling, Treatment or Disposal of Brine and Other Gas Industry Wastes.” There, the plaintiffs argued that the Chief of ODNR cannot issue orders granting permits until he first issues procedural rules for the storage and disposal of brine wastes. The lawsuit also seeks to prohibit operation of already-authorized facilities. On December 23, 2014, the state officials sued moved to dismiss the complaint. Their motion claims that the plaintiffs lack standing to advance their claims and that they used the wrong mechanism to seek relief.
To support the contention that plaintiffs lack standing, the state argues: 1) the plaintiffs’ claims are too imprecise to establish the concrete harm needed to establish standing (plaintiffs allege only that they “believe” if the facilities are allowed to operate, then they will be exposed to contaminants); 2) their claims of harm from individual disposal sites are unrelated to their underlying claims that ODNR has failed to issue rules; and 3) the plaintiffs include members who live near only two of the 23 facilities, which are operated by third parties whose activities would not necessarily be affected by the rulemaking plaintiffs demand of the ODNR. Likewise, the state argues that the case should have been styled as one seeking declaratory and injunctive relief rather than as one seeking a writ of mandamus.
This matter is being monitored by Clay Keller in Jackson Kelly’s Akron office. For more information on Mr. Keller, click here. This article was authored by Robert G. McLusky, Jackson Kelly PLLC. For more information on Mr. McLusky, click here.