Slow Ride to Nowhere?

City's new environmental law faces uncertain future

With the election of a new City Council, the future looks uncertain for Cincinnati’s Environmental Justice Ordinance. The first-of-its-kind law, which was slated to go into effect Dec. 21, was touted by backers such as former councilman David Crowley as a way to ensure the city’s poorest residents are protected from heavily-polluting businesses.

But the ordinance failed to earn funding in the current city budget, approved after Crowley and fellow Democrat Greg Harris left the group. A motion submitted in June by Councilman Jeff Berding, an Independent, seeks to postpone implementation of the law by one year.

Berding’s proposal was scheduled to be voted on Jan. 5, just after CityBeat’s deadline.

One thing everyone involved in the dispute over the law agrees on is that 2010 will be its make or break time.

“It’s a big deal,” says Marti Sinclair, program director for the Environmental Community Organization. “The citizens and city advisers met for four years to work out this ordinance.”

Berding’s motion, which would call for a private firm to conduct a cost-benefit analysis of the ordinance, is more about politics than anything else, Sinclair adds.

“It’s a slap in the face to the citizens who worked so hard,” she says. “I think this has kind of been pulled out of the hat. They know what the citizens want and what we’ve worked on.”

But Councilman Chris Bortz — a Charterite who is Berding’s ally — says the motion is about stopping an ill-conceived law that could do more harm than good in a former Rust Belt city trying to remake itself for the 21st Century.

“It could be a real burden to companies making investments in the city because it’s very hard to understand,” Bortz says.

At its most basic, the Environmental Justice Ordinance is a check on companies that are likely to produce toxins and dangerous pollutants in the course of business. The ordinance would establish a board and administrator who would review, then grant or deny, permits for potentially polluting businesses to build or expand operations in various city neighborhoods.

The idea is that the additional oversight could prevent a given neighborhood — historically, poorer and mostly minority — from suffering the effects of excessive pollutants in the local environment.

Specific categories of businesses and construction are exempted from the Environmental Justice Ordinance including office buildings, residential developments and “most commercial” projects, say officials. Reviews will be conducted only in neighborhoods defined as “environmental justice communities” as well as in one-mile radius around them.

The law was approved in June 2009 after more than three years of work and undergoing several alterations. Mayor Mark Mallory and most of council’s Democrats support it.

Bortz voices an argument made by Berding and by parties opposed to the ordinance, such as the Cincinnati USA Regional Chamber of Commerce. The Environmental Protection Agency (EPA) and state environmental regulators, they argue, already regulate the companies that would be targeted by the ordinance.

“The scariest polluters in the city are the chemical manufacturing industry, and they’re monitored (by the state and EPA) very carefully,” he says. “I think for the most part they’ve been compliant and careful.”

Adding permits that only affect the city and not the surrounding suburbs would simply make it that much easier for a company to choose a location other than Cincinnati, opponents contend.

“To create that additional layer, I think was generally thought of as overkill,” Bortz says, adding that that scenario would see Cincinnati losing both jobs and environmental quality. “We can keep them out of the city of Cincinnati, but can’t keep them out of our air and water supply. Something like this needs to be national or international.”

The debate could be a moot point, at least for the near future. Council didn’t include funding for the ordinance’s manager, expected to be an employee under the city’s Office of Environmental Quality, and the organization of its board of appeals.

“For whatever reason — the budget, or whatever — there’s not a lot of loose cash hanging around,” says Bonnie Phillips, the Office of Environmental Quality’s environmental compliance manager.

Bortz had a more blunt assessment. “Council didn’t put it back in the budget,” he says. “The administration — it was pretty clear from the beginning — they didn’t like it.”

Berding’s motion was originally submitted in June, and only came up this week under a so-called “sunset” review: The newly elected council is essentially sorting through unfinished business left from the prior group. Both Bortz and new Councilwoman Laure Quinlivan, a Democrat, said they wouldn’t be surprised to see the motion vanish into the proverbial sunset, especially given the lack of funding for the ordinance.

That’s not to say the ordinance will go quietly into the New Year.

“We have to do something,” says Quinlivan.

“You just can’t have a new law in the books with no funding to support it.”

The first-term councilwoman campaigned in 2009 on a platform that, in her words, stressed making the city “cleaner, greener and smarter.” And a motion she planned to submit Jan. 5 in that spirit could provide for a very similar step to that proposed by Berding and the business community.

Quinlivan’s motion would call for a one-year delay in the implementation of the ordinance. Her goal, she explains, is to give the new council a chance to both assess the ordinance and figure out a way to pay for it.

Cost estimates for implementation vary widely depending on which side is presenting: Supporters put the figure at around $150,000, while opponents suggest it could be $170,000 to $280,000 higher per year, mostly for appeals and legal fees from businesses that are denied permits.

“If the environmental justice ordinance could really help us and we could even market it to our advantage, it might be really good,” she says. “On the other hand, if it’s something that really discourages businesses from moving here, it might be really bad. That’s why I’m for gathering more information.”

Ellen van der Horst, then the Chamber’s president and CEO, wrote a letter last summer to the mayor and City Council urging that the ordinance is rejected.

“In its current form, the proposed ordinance would have a significant negative impact on business development,” van der Horst wrote.

“At a time when the city of Cincinnati faces a projected $40 million budget deficit, creating a new unfunded mandate detrimental to business growth could only have a negative impact,” the letter added. “Without significant business growth, the city’s tax revenues will likely decrease and it will become more difficult to reduce the city’s projected deficit.”

But Quinlivan says that if her motion passes she’d like to talk more with both sides of the issue to sort truth from spin, determining, for example, whether the ordinance would have potentially hampered a recent expansion by Graeter’s Ice Cream, as ordinance opponents have claimed.

Bortz suggests that given the time and a cost-benefit analysis there is a chance the city will indeed find the ordinance a case of gilding an already effective lily.

“On the local level you have to be focused on enforcement, and we already are,” he says. “We just don’t have a lot of that type of industry anymore.”

Bortz noted that due to specifications in the ordinance that focus on companies that produce and use toxic chemicals it wouldn’t have been able to prevent one of the area’s more recent environmental emergencies, the 2005 styrene leak from a rail car near Lunken Airport. That leak resulted in a mandatory evacuation of parts of the Columbia Tusculum neighborhood.

Supporters of the ordinance see the lack of funding and council’s potential plans as holding up a groundbreaking piece of legislation. For Quinlivan, the motion she’s submitting is an opportunity to approach the ordinance in a smarter, possibly more financially sound fashion.

“(By next year) our budget situation could be all different. And if this is important to people, we can find the money to do the implementation.”

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