Anti-fracking figure makes case in Athens

  • Sam Schooler

Pennsylvania-based attorney Thomas Linzey spoke Friday night to a group of about 150 Athens area residents and Ohio University students. Linzey, founder of the Community Environmental Legal Defense Fund (CELDF), made it clear that he and his organization have one main goal: to challenge the U.S. Constitution.

Linzey’s presentation, “Breaking a Fixed System: Corporations, Fracking, and the Community Rights Movement in Ohio,” focused on CELDF’s support of municipalities’ grassroots movements to block corporations from engaging in high-impact industrial activities (such as oil and gas drilling and drilling waste injection wells) in or near communities.

CELDF, which is a largely pro-bono public-interest law firm, recently represented the Athens County Bill of Rights Committee in an unsuccessful attempt to get a county charter/community bill of rights that would ban injection wells and restrict other oil and gas activities on the 2015 ballot.

In mid-September, the Ohio Supreme Court ruled 6-to-1 against petitions to place the anti-fracking measure on the Athens County ballot and ballots in two other Ohio counties.

While the Supreme Court rejected Secretary of State Jon Husted’s arguments that the charters were unconstitutional or illegal based on a previous high-court decision (Morrison vs. Beck Energy), they upheld his position that the three proposed charters failed to qualify for the ballot because (according to the decision) “they did not set forth the form of (alternate) government, which is the sine qua non (necessary requirement) of a valid charter initiative.”

A year previously, though, voters in the city of Athens overwhelmingly passed an oil and gas activities/fracking ban for the city. That ban – based on a community bill of rights template devised by the CELDF – has yet to be applied to any proposal, and consequently, hasn’t been challenged either.

Linzey explained that when the CELDF receives a call from a municipality or a community organization that seeks to put a stopper in corporations’ plans, the first thing the CELDF does is get hold of the permit paperwork for whatever company or corporation is planning an industrial project, such as an oil well or waste-injection well.

If the Center spots a mistake in the paperwork for the permit, which a corporation must obtain before starting a project, attorneys from the CELDF will challenge the permit, administratively or in court, if necessary. These clerical errors can hold up a corporation’s plans for months.

But the problem with these technical “wins,” Linzey acknowledged, is that they often result in later losses. Once a corporation has been blocked from obtaining a permit, it usually will come back with a revised permit, and that one will win approval.

At that point, he said, there’s virtually nothing CELDF can do. Under current U.S. and laws in most states, including Ohio, if a corporate project has received a state or federal permit, the municipality, county or township where that project is planned is legally prohibited from preventing it. Attempts to fight legitimate permits in court, or to pass laws to prohibit them in the first place, result in lawsuits that drain municipalities or grassroots groups’ financial resources.

This is why Linzey says the CELDF doesn’t want to continue just challenging the laws; the group wants to change them.

The U.S. Constitution, he argued, is based heavily in Colonial-era English common law – and that law helped turn the U.S. into an industrial powerhouse. Linzey said the Constitution gives corporations the same legal rights it gave European colonizers: the power to impose on local populations and make use of local resources, without local residents’ consent.

That means it’s legally within corporations’ rights to sue any group that prevents them from exercising their constitutionally guaranteed privileges.

“Corporations are persons under the law,” Linzey said. “If you tell them they can’t use the permit, then you’re depriving the corporation of their property, because corporations are persons under the law. They have the same protections we do.”

The trouble CELDF will have passing any kind of constitutional amendment allowing individual communities to pass anti-corporate bills of rights which take precedence over state or federal protections for industry is that they also might open the door to local communities trying to trump legitimate state or federal law.

For instance, some people might argue that if a local bill of rights law can trump state or federal law in the area of corporate rights, why couldn’t local law also prevail over federal protections for gay marriage, or protections against unlawful search and seizure?

Opponents of the Athens County Bill of Rights Committee’s charter proposal advanced this argument.

Linzey and the CELDF, however, feel that their only hope at this point is to change the Constitution so it doesn’t enshrine corporate rights.

During his talk at OU, Linzey told how communities’ efforts across Ohio to defy state and federal law by banning fracking for natural gas and pipelines is the beginning of a community rights movement in Ohio and the United States. It’s not right, he argued, for the legal system to deprive communities of their ability to decide their own futures. He charged that the Ohio Legislature and state Supreme Court have deprived the constitutional rights of local, community self-government. These communities are fighting back, he said, by creating the Ohio Community Rights Network, which is working to change the Ohio Constitution “to guarantee the right of self-government to all Ohioans.”