Last week the Supreme Court of Ohio upheld the Ohio Secretary of State’s decision to remove from this November’s ballot, measures by Medina, Fulton, and Athens counties that would have banned hydraulic fracturing and related infrastructure projects. However, in a separate ruling, the court allowed the city of Youngstown to proceed with an anti-fracking charter amendment and ordered it be placed on the November 3 ballot.
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Ohio is home to the Utica shale, which has attracted billions of dollars in investment by oil and gas fracking operations. Opposition to fracking in the state began in earnest in December 2011 after the injection of wastewater into a disposal well near Youngstown triggered a 3.9 magnitude earthquake. Since then several Ohio cities and counties have initiated efforts to keep fracking and affiliated activities off their land.
Secretary of State Jon Husted had removed the county ballot measures in August, claiming “unfettered authority” even though all three initiatives had gathered sufficient signatures. The court did not agree with Husted’s argument that there was “nothing to materially limit the scope of [his] legal review of the petitions.” It’s ruling against the initiatives was based on a technicality.
Along with banning fracking, the county-level initiatives would have also established Home Rule powers for the counties. Because of this, according to Ohio law, the initiatives needed to specify what form of government they were planning on establishing. Last Wednesday, the court ruled that because “one must look to sources outside the [initiatives] to determine the form of government they purport to establish,” they don’t satisfy this test, and thus voters should not be allowed to vote on them. Terry Lodge, a lawyer for the petitioners, told Earth Island Journal “we don’t agree that the [initiatives] are in any way deficient.”
In Husted’s August decision, he wrote, “the courts in Ohio have spoken: a municipality may not ‘discriminate against, unfairly impede, or obstruct’ the operation of oil and gas wells in Ohio.” Though this is true, his logic clearly skipped a beat.
According to Lodge, the argument that local initiatives that challenge state preemption should not be allowed a vote, never stood a chance in court. “The only role of governmental regulation over initiative petitions,” Lodge said, “is to verify that the signatures were collected on the proper forms, that they were properly verified by the circulator, and that the form in which the petition wording was circulated was proper. The county boards of election and the Secretary of State may not indulge an inquiry into whether, if passed, something might be ruled illegal.”
But it was not just government officials that had a hand in derailing the county level anti-fracking initiatives. The oil and gas industry played a key role too.
Rather than rely on the state attorney general for legal representation — as state actors most often do — Husted brought on the private law firm, Bricker & Eckler LLP, to defend his August decision. Bricker & Eckler is not just any law firm; it’s the firm that represents the very company — Spectra Energy — that is trying to build a massive, hotly contested, natural gas pipeline which two of the local bans would have blocked. The proposed NEXUS pipeline would traverse Northern Ohio en route to exporting gas to Ontario and thence international markets.
The office of the attorney general did not comment on why Bricker & Eckler was brought on, only saying that “in some cases the secretary of state may require outside counsel,” and that the attorney general’s “relationship to the case is that we helped find outside counsel.” A representative from Husted’s office told Earth Island Journal that “it’s common for the Secretary of State to employ outside counsel in situations where a particular expertise or level of experience would be helpful in articulating the Secretary’s position.”
“It feels like there’s no democracy,” Kathie Jones, a petitioner for Medina County’s initiative told EIJ. “This is not just about oil and gas, it’s about our democratic rights.”
In Medina and other counties, Bricker & Eckler has also threatened to sue residents who refuse to allow Spectra land surveyors onto their land. The pipeline hasn’t received a certificate of approval from the Federal Energy Regulatory Commission, but that hasn’t stopped Spectra from seeking temporary restraining orders against property owners who don’t want surveyors on their land. This has prompted local county prosecutors to give sheriffs the OK to arrest Spectra surveyors for trespassing in Medina.
Having exhausted efforts in appealing to the state’s oil and gas regulatory agency, and seeing little hope for individualized acts of resistance, many Ohio citizens turned to collective local lawmaking to assert their rights to local self-government, property, and a clean environment via ballot initiatives. They also found it necessary to include language to elevate those rights above legal privileges often enjoyed by private corporations. For instance, Medina County’s initiative reads: “corporations and other business entities that violate rights secured by this Charter…shall not be deemed to be ‘persons’ to the extent that such treatment would interfere with the rights.”
“But they’re trying to stop us any way they can,” Jones said.
One native Ohioan, Tish O’Dell, has been fighting Ohio’s oil and gas industry for more than five years. She led the state’s first successful local fracking ban in the city of Broadview Heights in 2012 (which was overturned earlier this year) and spearheaded a statewide Ohio Community Rights Network (OHCRN). OHCRN works with the Pennsylvania-based nonprofit Community Environmental Legal Defense Fund, which helped defend the petitioners in the Ohio Supreme Court.
According to O’Dell, the 14 counties now in OHCRN have been on the receiving end of numerous corporate lawsuits, special interest-funded attack campaigns, and more. But she says she’s never experienced anything quite like this.
The same corporations that have challenged OHCRN’s local laws, O’Dell wrote in an email, “are now being openly and blatantly hired by our government to also take away our right to initiative!” (Public formation requests filed by this reporter show that the Attorney General is paying Bricker & Eckler $20,000 for their help.)
The tussle between Mahoning County and Youngstown over the city’s fracking ban initiative offers another example of a government entity working with a law firm that typically represents industry to block the democratic process.
Back in August, the Mahoning County Board of Elections had denied an anti-fracking charter amendment a spot on the Youngstown ballot, claiming that state law already grants the Ohio Department of Natural Resources sole responsibility of regulating oil and gas drilling in the state. The city of Youngstown challenged the decision, contending that the Board of Elections acted “illegally” by refusing to put the issue on the ballot.
In this case though, the Mahoning County prosecutor refused to defend the Board of Election’s decision, which prompted the Board — like Secretary of State Jon Husted — to retain an industry lawyer. According to the Youngstown Vindicator, the outside lawyer cost Mahoning County taxpayers $30,000.
The Board hired John Keller of Voyrs, Sater, Seymour and Pease LLP, the same firm that represented Beck Energy Corporation in a landmark 2013 Ohio Supreme Court case that reasserted the state’s preemption of local oil and gas zoning laws. Voyrs, Sater, Seymour and Pease also helped Bass Energy and Ohio Valley Energy overturn O’Dell’s Broadview Heights fracking ban earlier this year. The law firm had also written an amicus brief on behalf of the Ohio Oil and Gas Association and the Ohio Gas Association in defense of Husted’s decision to remove the three county initiatives.
This is not the first time a Youngstown fracking ban has encountered hurdles in reaching the ballot.
In 2013, a coalition of Youngstown political and business interests filed a legal challenge urging the Board of Elections to remove that year’s fracking initiative from the ballot. However, after it was revealed that members of the coalition sat on the Jon Husted-appointed Board of Elections, the conflict of interest forced the coalition to rescind its challenge. (This year’s vote will be Youngstown’s fifth effort to ban fracking and injection wells).
Rather than the pro-fracking coalition filing a challenge, like it did last year, the Board of Elections teamed up with private industry to do what the coalition could not.
“There’s a long history of voter suppression here,” Susie Beiersdorfer a Youngstown activist told EIJ, “so we’re not surprised, definitely not surprised.”
The concept of an industry law firm and the Ohio Secretary of State working together to deny a basic democratic process (voting) from taking place has many worried about democracy in the state. “There’s no one to protect us and our democracy when it’s threatened by the corporations who want to industrialize our neighborhoods. We are told we are not permitted to protect ourselves,” Jones said.
Even though the county initiatives won’t be on the ballot this fall, the petitioners are pleased with the court’s decision not to entertain Husted’s unilateral control over the local initiative process. Anti-fracking activists in Medina, Fulton and Athens have committed to qualifying similar initiatives for next year’s ballot.