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Sunday, February 24,2013

Fracking ban fine for Athens but reckless and illegal otherwise

By Terry Smith

There seems to be ample confusion about the local Bill of Rights Committee's proposal to ban deep-shale drilling and related activities. The confusion, to a great extent, results from the wording of the proposed ordinance itself, but also from statements by its proponents.

Interpreted one way, the proposed ordinance – intended to go before voters for possible approval next fall – would ban so-called fracking and related activities within the Athens city limits.

I support this version. While nobody really expects anyone to sink an oil well on Columbus Road, a citywide fracking ban would send a strong signal that Athens residents will do what it takes to protect their water resources. A noxious state law reserving oil and gas regulation to the Ohio Department of Natural Resources would trump any city regulation of deep-shale drilling or wastewater disposal, but I doubt it would ever come to that within the city limits.

Interpreted another way, however, the proposed ordinance would ban drilling-related activities in a 20-mile radius of Athens, potentially extending city environmental regulation nearly as far as Logan, Jackson, Pomeroy or Belpre. This interpretation has been reinforced by Bill of Rights Committee spokesman Richard McGinn himself, who has made public statements favoring a 20-mile fracking ban before Athens City Council and in a "Reader's Forum" op-ed that he penned for the Dec. 13 Athens NEWS. In that piece, he cited a NEWS article from shortly before that, in his words, "featured the committee's plan to place an issue on the ballot for the next general election banning fracking and associated activities in the entire watershed serving the city of Athens." Later in the op-ed he confirms that the article quoted him accurately.

McGinn on Friday, in an interview with our reporter, belatedly clarified that while state law does give municipalities the authority to penalize polluters of as far as 20 miles away, the proposed Athens ordinance would focus on upstream polluters for obvious reasons. This means, he suggested, the fracking ban would extend northwest along the Hocking watershed toward Nelsonville, Logan and Lancaster (even though Lancaster is a good deal farther than 20 miles away).

This is where the Bill of Rights Committee starts getting squirrely about its intentions. As explained in committee member John Howell's letter published Monday, the proposed ordinance mentions the 20-mile state law, but only to provide "background and context." The ordinance itself, he adds, makes it illegal "for any corporation to engage in the extraction of oil and gas, within the city limits of Athens or its jurisdiction (my emphasis)." However, according to Howell, the ordinance "avoids any attempt to define its jurisdiction."

I would argue that by citing the state's 20-mile law as context, the ordinance is obviously attempting to define its jurisdiction. Otherwise, why bother providing the only reference to jurisdiction in the whole law?

Muddying the water even further, both McGinn and Howell suggest that the 20-mile effect of the proposed ordinance is less about Athens banning oil and gas drilling in the watershed, and more about "encouraging other communities sharing the aquifer to take the same step."

So is it a "ban" or isn't it? Its proponents don't seem to know for sure.

In criticizing the proposed 20-mile drilling ban in a column last Thursday, I confined my arguments to government and law. I pointed out the self-evident legal and enforcement problems with voters in one discrete area passing a law that will restrict and regulate business, industrial and real-estate activities in other jurisdictions, whose residents don't have any say in the matter. This seems like such an obvious flaw in any such extra-municipal "fracking ban" that I feel silly repeating my arguments against it.

Contrary to professor McGinn's charges in a letter published Monday, the concerns I expressed don't confirm my status as a fracking apologist. It has nothing to do with my ambivalent opinions on deep-shale drilling in Ohio, which are well documented in previous columns (some of them harshly critical of the state of Ohio's lax regulation of fracking). Rather, it's just me believing sincerely that Athenians are reckless, shortsighted and embarrassingly ignorant of how our government works if they think they can – or should – pass such a blatant municipal power grab.

The difference between Athens city banning fracking within its own limits (which I support) and Athens city banning the activity in some vaguely defined "jurisdiction" (which may or may not extend 20 miles) is like the difference between biking to the grocery store and space travel. In a legal, constitutional and enforcement sense, they are 100 percent different.

Athens officials and voters, if they want to avoid their city spending a decade (and a fortune) in the courts, should ask the Bill of Rights Committee to explicitly confine the fracking ban to the city of Athens, or else make it clear that any wider fracking ban is purely symbolic. If they do that, they've got my support.


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Terry, I posted this at the Council candidates support fracking ban article but thought you might also be interested. In New York, where there is currently a fracking moritorium, many municipal employees and elected officials are backtracking and distancing themselves from the pending property takings lawsuits.