Another Ohio court slaps down a city’s anti-fracking ‘bill of rights’

  • By Terry Smith

Another Ohio court case has gone against community activists seeking local restrictions on oil and gas drilling. The appeals court’s decision in this Cuyahoga County civil case is especially noteworthy in that it directly addresses – and dismisses – the legal underpinnings of “community bill of rights” laws that voters have passed in the city of Athens and other communities around the state.

similar anti-fracking “bill of rights” is part of a charter amendment that local fracking opponents hope to place on the Athens County ballot next November.

So far, no Ohio court, including the state Supreme Court, has upheld the local fracking restrictions in question, each time ruling that Ohio Revised Code Chapter 1509 reserves oil and gas regulation to the Ohio Department of Natural Resources.

However, until now, none of those court decisions had directly addressed the core “bill of rights” argument that “the people have an inalienable and fundamental right to local community self-government” that includes the right to pass laws restricting or banning fracking and related activities such as waste injection wells, as well as other industrial processes.

In its decision in a case pitting Mothers Against Drilling in Our Neighborhoods (MADION) against the state of Ohio, Gov. John Kasich, the city of Broadview Heights and two oil and gas businesses, the Eighth District Court of Appeals voted 3-0 to uphold a Cuyahoga County trial court’s dismissal in July 2015 of a complaint brought by MADION. The local activist group, part of a statewide network of community organizers and supported by the Pennsylvania-based Community Environmental Legal Defense Fund (CELDF), had asked the court to uphold an anti-drilling bill of rights that voters passed in Cleveland suburb of Broadview Heights in November 2012.

City officials in Broadview Heights withdrew from defending the voter-enacted law, predicting it wouldn’t pass judicial muster and that the courts would consider legal efforts to defend it as “frivolous.”

In the main opinion in the Eighth District Court of Appeals decision of March 3, two of the appellate judges cite the majority decision in the Supreme Court’s Morrison (Munroe Falls) vs. Beck Energy Corp. decision from February 2015. That high-court ruling, based on ORC 1509, upheld the primacy of state law in oil and gas regulation, generally finding that what the state allows, in this case oil and gas development activities, local government and voters can’t prohibit.

However, in its March 3 decision, the appellate court also addressed MADION’s claims regarding local community rights. The anti-fracking group had argued that the Morrison case cited as a precedent only addressed home-rule powers of “municipal corporations,” which “are distinct and apart from the people’s inalienable and fundamental right to local community self-government.”

The appellate court decision, however, notes that “while MADION concedes that there is no case law to support its position, it maintains that the people’s right to local community self-government is deeply rooted in our nation’s history and tradition.”

The appellate court opinion then cites MADION’s lengthy examination of American and British legal history in its legal filing in the case, with references to the Mayflower Compact, the Exeter Compact of 1639, the Articles of Confederation for the United Colonies of 1643 and the Declaration of Independence, along with historical American events such as Stamp Act riots of 1765 and the Boston Tea Party.

According to the appellate court decision, “After careful review of MADION’s arguments in their entirely, we find no merit to its position that the right to local community self-government entitles the people of Broadview Heights to enact laws that may not be pre-empted by state law.

“In addition to MADION’s inability to present any legal authority to support its arguments, MADION’s historical discourse ignores express provisions of the Ohio constitution…”

The appellate court opinion concludes, “There is nothing in the Ohio constitution to suggest that the ‘people’ of a municipal corporation (city or village) possess the authority, independent and apart from the municipal corporation itself, to enact local ordinances that conflict with state law.”

IN AN EMAIL ON FRIDAY, Tish O’Dell, a member of MADION and president of the Ohio Community Rights Network (OHCRN), said MADION is still discussing its options on whether to appeal the Eighth District court’s decision to the Ohio Supreme Court, and should have a decision early this week.

In a press release issued March 9, O’Dell stated, “The court affirmed the corporate claimed ‘right’ to use Broadview Heights as resource colony for the benefit of a few people, living far removed from the harms – people who hide behind the corporate shield, and, with permits in hand, site harmful projects for the sake of profits.

“We, the People of Broadview Heights, are being told that our will, expressed through a democratic vote, is meaningless in Cuyahoga County,” she continued. “We are being told to watch the toxins be injected and emitted into our neighborhoods and then WAIT. Wait for the harm to start surfacing in our community and in our children.”

Increasingly, community activists working with CELDF and OHCRN have acknowledged that they’re less interested in winning individual court actions than in waging a grass-roots crusade against injustice, to reform both government and the courts.

Referring to the appeals court decision against MADION, O’Dell declared, “Such decisions are not new. Slavery and women as property were legalized by legislatures across the nascent United States, and upheld decade after decade by the courts. With every unjust legislative act, and with every unjust court decision, the truth of our legal and governing structure was revealed to growing numbers of people – and those people took action.

“Our ancestors challenged those laws, just as the people of Broadview Heights are challenging unjust law today. Just as the people of Athens, Medina, and Portage Counties and the people of Youngstown and Columbus are advancing community rights and challenging every barrier the corporate state erects.”

She concluded, “The people of Broadview Heights (and other communities across the country) are in the front lines of a movement that is building the momentum necessary to drive community rights forward for social and political justice, and the sustainability of the planet.”

NOT SURPRISINGLY, SUPPORTERS of the oil-and-gas industry see things differently.

In an email Saturday morning, Jackie Stewart, director of Energy In Depth-Ohio, a pro-industry public-outreach group, argued that the various campaigns pushed by the CELDF, including the “bill of rights” laws in Broadview Heights and Athens, aren’t really interested in the consequences for the communities who pass them.

She predicted a heavy cost to local taxpayers in communities that have to defend “bill of rights” laws.

“We don’t even know what the cost is going to be on this case for the taxpayers who have funded this matter all the way to the appeals court,” Stewart said. “This is an issue that CELDF continues to reject as important because it doesn’t impact them. They don’t live in your community; they hail from PA. But it is important, because every time your community spends money defending these matters, it takes resources away from other vital local services that your county or municipality require. CELDF doesn’t care because they do not foot the bill; taxpayers do. Youngstown taxpayers have dropped tens of thousands in five failed ballot measures.”

She charged that the CELDF’s agenda “is far more reaching than oil and natural gas development, and that is not communicated properly to local communities by these out-of-state groups.

Stewart continued, “These continued failed campaigns are unenforceable because they violate state and federal laws, and that’s what the courts continue to uphold. Taxpayers and voters should really be mindful of these realities. It’s ‘buyers beware,’ a cautionary tale to communities, and the recent appeals decision in the MADION case is just another example of many all across the country.”

The charter amendment/bill of rights proposed for Athens County would not directly ban fracking but it would prohibit fracking-waste injection wells and the use of local water for deep-shale drilling. The latter prohibition would make fracking difficult, if not impossible.