Athens City Council last week heard from a new group of citizens opposed to oil-and-gas extraction who proposed a 20-mile fracking ban be adopted by the city as part of a "bill of rights."
Speaking during a committee meeting last week, Athens resident Dick McGinn outlined the proposal to City Council on behalf of the Bill of Rights Committee (BORC).
The committee, McGinn said, includes himself, Second Ward Council member Jeff Risner, and residents Christine Hughes, Beverly Flanigan, Ed Newman, Milenna Miller, John Howell and Richard Hogan.
McGinn said he appeared at City Council to speak to the "dangers that fracking and associated activities pose to the health, safety, happiness and even economic stability" of the Athens community.
He said that the committee formed in recent weeks and held its first meeting just before its council appearance.
"What we have is a committee to enact a community bill of rights with the aim of banning fracking and associated activities in, at, or near the aquifer that supplies water to the city of Athens," McGinn said.
Ohio Revised Code designates the Ohio Department of Natural Resources' Division of Mineral Resources Management as the sole regulator of oil-and-gas drilling in the state of Ohio. Under that provision, the city of Athens would be barred legally from enacting oil and gas regulations, including the proposed 20-mile fracking ban.
In addition, landowners who would be barred from leasing their land for oil and gas drilling likely could argue that the city of Athens' fracking ban amounted to an unconstitutional "taking" of private property rights.
The BORC, however, has cited another section of the ORC (Title VII, Chapter 743, Section 25) that gives municipalities jurisdiction to prevent pollution of its water supply 20 miles beyond municipal corporation limits.
If it were to go into effect, the fracking ban would cover all of Athens County, and extend nearly to Pomeroy, Belpre, Wellston and Logan.
"The ordinance is establishing a community bill of rights for Athens residents and natural communities, and protecting those rights by prohibiting shale gas and oil extraction and related production activities, and by subordinating the privileges bestowed on corporations to the rights and governance of the people," McGinn said, arguing that the city is codified by the state constitution to make this move.
McGinn said that the current laws designating regulatory authority to the ODNR are "weak and unsustainable," and would not stand up under the grounds of constitutionality.
"This ordinance removes legal powers and authority from gas extraction corporations within the city, in recognition that those legal powers are illegitimate and unjust," McGinn read from the proposal.
These activities, according to the proposed ordinance, "cannot be achieved without violating the rights of residents and communities or endangering their health, safety and welfare."
"So this is what we're talking about," McGinn said. "(It's not) working with the regulators, but rather, challenging them that our right to clean air and water is more important and has priority over the rights of corporations to make money."
He said that the scientific basis for the approach is simply that horizontal hydraulic fracturing is dangerous from start to finish.
The proposal, he said, was drawn up with the assistance of the Community Environmental Legal Defense Fund. This is a non-profit law firm "providing free and affordable legal services to communities facing threats to their local environment, local agriculture, the local economy, and quality of life," according to its website.
McGinn said that the BORC is asking City Council to adopt the ordinance and place it as a referendum on the November 2013 ballot as well, promising the group will pursue the ballot initiative regardless of council's action.
"One thing I want to stress is that we have a lot of faith in this City Council," McGinn said, pointing to various actions undertaken by the city previously on the matter of oil-and-gas activity.
This past spring City Council passed a resolution making certain amendments to the city's wellhead protection plan, including provisions banning fracking in that area.
"It's clear that this City Council is determined to do something about this fracking and the danger that it poses to our community and so this here's another resolution," McGinn said.
Athens Law Director Pat Lang said at the time that he had advised members of council that the language in that resolution had the potential to be problematic.
McGinn said that the legal strategy behind the proposal is that it's not challenging the state law designating ODNR as the sole regulatory authority, but rather appealing to a higher authority than the ORC in the state constitution.
In that sense, he said, it's not as vulnerable to lawsuits. He said the Ohio Constitution gives priority to human beings and their rights.
"Here we're talking about a possible win," he said. "According to CELDF, they've never lost a court case. And that's an important piece of information that we have to take very seriously."
McGinn likewise expressed confidence of winning the public debate. "We know we will win when it comes to a ballot decision," he said.
Defenders of deep-shale drilling argue that the practice is environmentally benign, that the state of Ohio strictly regulates it, and that its economic benefits for communities and the state as a whole far outweigh any likely problems.