Over the past few weeks, news outlets have been reporting that Athens and Medina counties, with the assistance of out-of-state anti-fracking groups, are considering ballot measures that would prohibit a host of oil and gas related activities. This effort is not new to Ohio, as several similar attempts have been made and defeated in the Buckeye State over the past few years. This time, however, the anti-fracking movement is bringing these measures to the county level, rather than to an individual city or township.
Of course, the Community Environmental Legal Defense Fund (CELDF), a Pennsylvania group bent on banning oil and gas development, is spearheading these efforts. CELDF is best known for backing anti-fracking initiatives and activists organizations in energy producing states such as Ohio and Illinois. Most notably, CELDF was behind Youngstown, Ohio’s unsuccessful attempt at a Community Bill of Rights campaign, which was defeated by voters four times. CELDF is now pushing its misinformation campaign in Athens and Medina counties, with the goal of achieving a ban on all oil and gas development.
Medina County: Pipeline & Property Rights
A few weeks ago, a group of residents in Medina County launched a proposed Community Bill of Rights county charter amendment through a ballot initiative that will require 4900 signatures by June 24th. A Community Bill of Rights has taken different forms through various campaigns, but essentially it would allow a community to prohibit any industry it pleases, including oil and gas development.
The proposal was initiated after a planned FERC pipeline project, which would traverse the county, led to concerns over property rights. According to a CELDF press release, some residents in Medina County have aligned with the Ohio Community Rights Network and CELDF to draft the petition to create a charter. Medina County’s proposed petition for Submission of Proposed County Charter can be found here.
Athens County: Class II Injection Well
In the City of Athens, activists recently launched another Community Bill of Rights charter initiative targeting the entire county (population 64,713). This is the same group that unsuccessfully opposed the permitting of a Class II injection well, which the U.S. EPA considers the preferred and environmentally safe method for disposal of oilfield fluid wastes. CELDF was called in to provide “grassroots organizing and education, and assisted in drafting the community rights charter initiative.” Residents need to collect 1,500 valid signatures to place their charter initiative on the November ballot. Athens County’s proposed petition for Submission of Proposed County Charter can be found here: ATHENS COUNTY CHARTER PETITION .
Fact #1: Both petitions are almost exactly the same…but here are the key differences.
Now, let’s have a look at some of the language in these petitions. Athens County Proposed Charter offers the following:
“Section 1.09 Rights of Nature. Ecosystems within the County of Athens, including, but not limited to, rivers, streams, wetlands, and aquifers, possess the right to exist, flourish, and naturally evolve, free from activities prohibited by this Charter and other local enactments.”
Is the County of Athens actually saying that the U.S. EPA, Ohio EPA, U.S. Army Corps of Engineers, U.S. Coast Guard, and others can no longer permit, enforce and therefore protect public waterways in the County of Athens? This seems like a slippery slope of regulations that would begin with oil and gas and end where? With fishermen, landowners?
Medina County Proposed Charter offers the following:
“Section 1.01 Rights Unalienable, Self-Executing, and Enforceable. All rights delineated and secured by this Charter are inherent, fundamental, irrevocable, unalienable, and shall be self-executing and enforceable against private and public entities. Every resident of the County of Medina shall be secure in these rights, and may bring an action to enforce these rights. In such an action, the resident shall be entitled to recover all costs of litigation, including, without limitation, expert and attorney’s fees. These costs and fees shall not be awarded against the resident.”
This section really calls into question enforcement as it relates to how “wells are securely and properly capped when production cease.” Who will provide oversight of this? The county? Who pays for that service?
Currently, the Ohio Department of Natural Resources regulates this process through the Orphan Well Program, which was established in 1977. The program, which is funded and administered by the ODNR has successfully plugged over 1,000 wells in Ohio and has been recognized as one of the best programs of its kind in the nation.
“Section 2.01 Prohibitions Necessary to Protect Rights. It shall be unlawful for any private or public entity to violate the rights recognized and secured by this Charter and its amendments, by engaging in the activities herein enumerated and activities as may be further provided by ordinance or resolution by the County Commissioners, by the people through initiative, or by Charter amendment.
These are not “rights” as much as they are a free pass for anyone who seeks to impose frivolous lawsuits not only against the oil and gas industry but any industry.
“Section 2.01.2 Engage in the siting or operation of equipment to support extraction of oil or gas, including pipelines, compressors, or other infrastructure, within the County of Medina. This prohibition shall not apply to the construction, maintenance or repair of infrastructures used for delivery to retail end-users of gas or oil.”
This is another absurd and vague section that raises more questions than answers. Would this mean that a service provider operating an oil and gas well in a neighboring county would be in violation of the charter if their truck or equipment was parked at their home or another business located within the county? In reality, all infrastructure is provided as a means to eventually reach the end user so at one point would this violate the charter? It’s a slippery slope that would almost certainly lead to greater issues down the road.
“Section 3.01 Name, Boundaries and Powers Every elected official, minister, appointed official, representative of the community, or agent purporting to represent or advocate for the community shall be subject to recall by popular petition, and shall be legally liable in an official capacity to the community for the violation of community rights.”
First and foremost, elected officials are just that—elected. If the people feel that they are not representing the community they have the right to vote them out of office. What is particularly concerning is the addition of ministers or any other “community representatives” who could be subject to recall and be held legally liable. Legally liable for what exactly?
While these sections above are tailored to each of these counties’ concerns, the end-game for the CELDF is the same: they simply want Ohio’s economic prosperity, thanks to oil and gas development, to stop. Take a look at two particular sections found in both charters:
Section 2.01.1. Deposit, store, treat, inject, dispose of, or process wastewater, produced water, “frack” water, brine or other substances, chemicals, or by-products that have been used in, or result from, the extraction of shale gas and oil by high-volume horizontal hydraulic fracturing, on or into the land, air or waters of the County of Athens. However, this prohibition shall not include wastewater produced in the County of Athens by conventional shallow vertical drilling methods.
So let’s get this straight: unconventional or high-volume horizontal wastewater is not ok, but conventional shallow vertical wastewater is? How is this even enforceable and who would enforce it? Currently the U.S. EPA regulates this process under the Class II Underground Injection Control Program. The agency granted Ohio primacy over these wells in 1983, and to date Ohio’s regulations are, in fact, more stringent than the federal regulatory requirements.
“Section 2.01.2. Engage in the procurement or extraction of any water from any source, including public water sources, within the County of Athens for use in high-volume hydraulic fracturing for extraction of shale gas and oil.”
This section would remove the authority of a lower level of government – a city or township within the county – to exercise their right to sell water to an oil and gas company. Often these sale agreements provide a municipality with the means to bring money into their coffers, in many cases offsetting additional taxes to pay for infrastructure needs.
Fact #2: Legality of Community Bill of Rights Called Into Question
There have been several recent court rulings in Ohio, which seriously call into question the legality of such ballot initiatives, even if passed. The pivotal Ohio Supreme Court decision, which provided a final ruling to the Munroe Falls vs. Beck Energy case earlier this year, concluded that the state has primacy over oil and gas regulation. More importantly, it established that what the “state has allowed, the local government cannot prohibit.”
Another recent local court decision took place in Broadview Heights. The court, citing the Munroe Falls vs. Beck Energy case, decided to toss out a Bill of Rights fracking ban similar to the proposed charters in Athens and Medina Counties.
Recently, the Munroe Falls City Council unanimously approved an ordinance repealing Chapter 1329, which provides drilling regulations of the city’s codified ordinances. The Munroe Falls Law Director, Jack Morrison told the city council,
“While you are not required to repeal it, I think it is incumbent on the city, because it has been declared unconstitutional by the Supreme Court, to repeal it.”
Fact #3: Potential Cost to County Governments –A Cautionary Tale
As EID reported recently, the cost to municipalities when such measures are determined unconstitutional can be catastrophic to county budget coffers.
While we do not yet know the costs incurred to Munroe Falls or Broadview Heights as a result of their recent attempts to override the state’s authority, we have already seen cautionary tales in other areas of the country where similar events have played out. Most notably, Mora County New Mexico, where an ordinance was struck down by a federal judge in January, will now have to pay hundreds of thousands of dollars in legal costs. Mora County may now be facing municipal bankruptcy. While CELDF claims that they caution local governments about the potential costs of such measures, that doesn’t seem to have been the case for one Frack Free Mahoning Valley organizer. As Energywire reported:
“Susie Beiersdorfer, a community organizer leading Youngstown, Ohio citizens for a fracking ban (also advised by CELDF), said a possible lawsuit never entered the picture.” (emphasis added)
Fact #4: Water Protection Misinformation Campaign Continues
A news release from the CELDF stated:
“We declare our right to refuse to live under state law HB 278, which denies our constitutional right to self-government, and instead, renders unto the Ohio Division of Natural Resources sole authority over the siting, permitting and regulation of oil and gas development and wastewater disposal in the state. This is the agency that issues my fishing license.” (emphasis added)
An Athens Bill of Rights Committee board member John Howell said the charter would do two things: “give county residents the right to referendum, initiative and recall; and protect the county’s water supply.” (emphasis added)
This is particularly interesting because in Ohio the local county health department already has the authority to regulate private water wells and the ODNR, which Mr. McGinn sites as the agency that issues his “fishing license”, is also the agency, through its Division of Soil & Water Resources (DSWR), that houses water well logs and maps for each private water well. These maps include approximate well yields, products used in the construction of the water well, and other relevant information pursuant to the Ohio Water System Rules. In addition, this information is available online to the public.
Fact #5: Community Bill of Rights Attacks All Business, Not Just Oil and Gas
These petitions simply add an unnecessary layer of bureaucracy and cost to the county government. And, in fact, CELDF’s press release announcing their Athens County initiative even admits as such:
“CELDF has assisted nearly 200 communities to ban shale gas drilling and fracking, factory farming, and water privatization, and eliminate corporate “rights” when they violate community and nature’s rights. This includes assisting the first communities in the U.S. to establish Rights of Nature in law, as well as the first communities to elevate the rights of communities above the “rights” of corporations.”
CELDF’s website also acknowledges their attack on business:
“Charters of incorporation seem to grant special privileges for private wealth, including limited liability protections from legal responsibility by individuals benefiting by dint of this corporate shield, along with the “rights” of “personhood” bestowed by the courts. And yet charters do not actually grant rights, but rather they deny rights held by all by identifying corporations as a specially protected class under the law.”
In short, they might as well put a sign around Medina and Athens Counties that says they are closed for business.
Thankfully, groups like the Mahoning Valley Coalition for Growth and Investment have called out CELDF, defeating their efforts not once but four times. CELDF is apparently not giving up on its misinformation campaign. But the facts – and the benefits that have come to Ohio from shale development – are clear.