Anti-Fracking “Bill of Rights” Loses Yet Again

Last week, another Ohio court ruled against a lawsuit filed by ban fracking activists, this time in Cuyahoga County. This is most the recent legal defeat in a growing list of decisions in which the courts have struck down the merits behind anti-fracking efforts in Ohio.

This latest court decision brings the score to 0-2 for anti-fracking activists and it comes in addition to an Ohio Supreme Court decision that overruled local drilling regulations.

To provide some background, one tactic used by anti-fracking activists, particularly the Pennsylvania-based Community Environmental Legal Defense Fund (CELDF), is the so-called “Community Bill of Rights initiatives” to ban fracking. This tactic played out in the class-action suit filed by the Mothers Against Drilling in Our Neighborhood (MADION), a group that initially sued the state of Ohio, the city of Broadview Heights, and two energy companies. MADION cited the passage of the 2012 “Community Bill of Rights” claiming that the measure supersedes state law. But that MADION class-action suit was dismissed by Judge McCormick last week, who said that the February 17th ruling by the Ohio Supreme Court dealt with similar efforts to ban oil and gas development in Ohio, and set a precedent that local governments may not override the state’s authority to regulate the industry, nor discriminate against, unfairly impede, or obstruct oil and gas activities and production operations that the state has permitted.

MADION is based in Broadview Heights where a so-called Community Bill of Rights was passed in 2012 and the county found it also to be “an invalid exercise of its home rule authority and is pre-empted by ORC Chapter 1509 as a matter of law.” As Judge McCormick explained about the ruling,

“Like (in) Bass Energy, this court rules that the principles articulated in Morrison (Munroe Falls) necessitate a finding that article XV (the Broadview Heights bill of rights) is preempted by R.C. chapter 1509. Thus, Article XV is unenforceable… The court finds that it is beyond doubt that plaintiffs can prove no set of facts in support of their claims that would entitle them to relief.”

The journal entry of this ruling was filed in the Cuyahoga County Common Pleas Courts and required that the dismissal of the lawsuit be sent to the Ohio Attorney General’s office. This is particularly thought-provoking given that the Athens County Prosecutor recently requested that the state Attorney General and the Secretary of State weigh in on the proposed county charter amendment, or “Bill of Rights,” efforts in Athens County. While the Ohio Attorney General’s office has not yet responded to the Athens County Prosecutor, we know that this new ruling would provide the Ohio Attorney General’s office with two case studies of unsuccessful legal attempts made using the tactics of the so-called “Community Bill of Rights.”

This recent decision serves as greater evidence of the overall legality of the proposed “Bill of Rights” petition efforts taking place in various areas in Ohio. As EID has reported on several occasions, and most notably in our recent blog, these ballot measures continue to prove unenforceable and preempted by state law. It appears at least some attention is now being paid to the legality of the proposed “Bill of Rights”, as Athens News Recently reported in its headline, “Anti-fracking ‘bill of rights’ template loses again.” The article states,

“The amendment for Athens County is patterned closely after the Broadview Heights’ and city of Athens’ community bill of rights (and the one in Columbus). The proposal uses much of the inherent local community rights rhetoric included in all of CELDF’s legal filings and news releases. And that’s the legal reasoning that Ohio judges and justices so far have disregarded when ruling in favor of state regulation of oil and gas drilling.”

Athens joins four other counties that have turned in initiative petitions to place community rights in initiatives on the ballot in November. While Ohio voters and elected officials ponder these initiative petitions and take note of the mounting losing case against them, it’s important to know that the CELDF has clearly stated that its real intent is to bankrupt Ohio communities. As CELDF’s founder said,

[I]f a town goes bankrupt trying to defend one of our ordinances, well, perhaps that’s exactly what is needed to trigger a national movement.” (emphasis added.)

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