On January 31, 2014, C|M|LAW Professor and Associate Dean for Academic Enrichment Heidi Gorovitz Robertson published a blog post, Pennsylvania’s Environmental Rights Might Snag Drillers, in Crain’s Cleveland Business’ Shale Report.  Robertson has written previously in Crain’s about the struggles Ohio and other states face when local governments attempt to control local activities of the shale oil and gas industries.  In particular, Ohio legislation seems effectively to preempt local regulation.  An intermediate court in Ohio has upheld the state’s ability to prohibit such local regulation, but the Supreme Court of Ohio has yet to hear a case on this issue.

In neighboring Pennsylvania, however, the Supreme Court has struck down, on state constitutional grounds, the legislature’s attempt to preempt most local regulation of shale oil and gas drilling.  To do this, the Pennsylvania court relied on an environmental rights provision in that state’s constitution. The court thus returned to Pennsylvania’s local governments the authority to regulate hydraulic fracturing as an industrial use under their land use and zoning ordinances. Pennsylvania’s preemption of local regulation of hydraulic fracturing appeared dead.

According to two state agencies, however, the Court’s decision was not supported by the facts, and on Jan. 2, 2014, they asked the Court to reconsider its December 2013 decision. We don’t know yet whether the Pennsylvania Supreme Court will agree to reconsider.  

In the meantime, Ohio’s can ponder the possibilities.  The Ohio and Pennsylvania Constitutions both have Home Rule provisions and some Ohioans have hoped that Ohio courts would use that provision to strike down Ohio’s legislative preemption of local oil and gas ordinances.  So far, Ohio courts have not done this. Although Pennsylvania has a similar Home Rule provision, that state’s court did not rely on it to strike down the preemption of local regulation.  Instead, it used the environmental rights provision.  Ohio’s Constitution does not include an environmental rights provision.

To read the complete post, click here:

http://www.crainscleveland.com/article/20140131/SHALEBLOGS/301319996

C|M|LAW’s Calfee Halter and Griswold Professor of Law Milena Sterio was quoted recently in an article that appeared in LeMauricien.com, regarding the work being done by lawyers in that country in the area of Somali piracy.  Sterio has worked with other American lawyers and law professors to support the efforts of Mauritias and other countries in prosecuting Somali pirates.  Sterio outlined the growing problem of child piracy, saying it has emerged as “one of the most difficult legal issues.” She said that most child pirates are released upon capture or immediately after trial and as a result the Somali pirate kingpins are recruiting more and more of them, telling the juveniles that they have nothing to fear if captured.

To read this article, see:

http://www.lemauricien.com/article/somali-piracy-comes-ashore-mauritius-pirates-are-detained-and-trialed-island-courts

Professor Kevin F. O’Neill

C|M|LAW Professor Kevin O’Neill was quoted at length in an article,1st Amendment at issue in ban on gay-conversion therapy for minors, by David L. Hudson Jr., in
the January 2014 issue of the ABA Journal, on page 18.   The article deals with a recent Ninth Circuit decision upholding a California statute that bans a type of psychiatric therapy designed to dissuade gay and lesbian minors from homosexual conduct.  Professor O’Neill was asked to comment on the court’s First Amendment analysis.

According to O’Neill, “[p]laying the old ‘conduct-not-speech’ card is something that judges do when faced with particularly thorny speech issues . . .” He adds, “I don’t find it persuasive here, but it gave the 9th Circuit a convenient basis for applying rational-basis review.”

O’Neill says “[t]he statute singles out a particularly ludicrous treatment—a ‘medical’ treatment that is grounded upon ignorance and hostility toward gays and lesbians—and simply bans it. but the ugliness of the treatment doesn’t provide a constitutional basis for banning it.”

O’Neill notes that the Supreme Court invalidated “efforts to ban some of the ugliest speech ever” in the prohibition of images of animal cruelty in U.S. v. Stevens (2010) and violent video games in Brown v. Entertainment Merchants Association (2011).

“If you’re going to uphold this statute, you have to focus on the government’s legitimate power to protect children from medical quackery,” O’Neill says. “But that doesn’t fit too easily into any of the unprotected categories of speech, such as obscenity, child porn, true threats or advocacy of imminent lawless action. The absence of clear guidance in First Amendment law may be a strong reason for granting cert in this case.”

Here is a link to the article:

http://www.abajournal.com/magazine/article/1st_amendment_at_issue_in_ban_on_gay-conversion_therapy_for_minors/

Professor O’Neill’s comments appear toward the end of the article, in a section entitled, “Beyond Ugliness.”