Anti-fracking ‘bill of rights’ template loses again

The city of Athens has a similar bill of rights on the books, and a local group is pushing to place a charter amendment for Athens County on the November general election ballot. It would include a community bill of rights outlawing fracking waste injection wells, among other things.

Notably, none of the judges ruling in the three cases so far, including Cuyahoga County Common Pleas Judge Timothy McCormick in the most recent dismissal, have addressed the core legal reasoning behind these local efforts. For the most part, the courts have ignored these legal arguments.

This strategy, pushed by the Pennsylvania-based Community Environmental Legal Defense Fund (CELDF), argues that local citizens have an inherent right to self-government, guaranteed by both the U.S. and state constitutions, and as a result hold the right to pass laws to protect their health, safety and welfare. The main motivation for passing these laws has been to regulate and/or ban oil and gas drilling and associated fracking waste injection wells.

In a ruling last Wednesday, Judge McCormick dismissed a class-action lawsuit filed by Mothers Against Drilling in Our Neighborhood (MADION), and its individual members, against the state of Ohio, the city of Broadview Heights, and two energy companies.

He cited the Ohio Supreme Court’s Feb. 17 decision in Morrison vs. Beck Energy Corp., a case involving Munroe Falls, Ohio’s attempts to regulate oil and gas drilling with zoning laws. A 4-3 high-court majority ruled that the state constitution grants the General Assembly the authority to pass laws for “the regulation of methods of mining, weighing, measuring and marketing coal, oil, gas, and all other materials.”

The Supreme Court majority found that the General Assembly followed that constitutional rule in Ohio Revised Code 1509, which reserves oil and gas regulation to the Ohio Department of Natural Resources. The court majority concluded: "We hold that the Home Rule amendment to the Ohio Constitution… does not allow a municipality to discriminate against, unfairly impede, or obstruct oil and gas activities and production operations that the state has permitted..."

In his dismissal of MADION’s class-action suit last Wednesday (without scheduling oral arguments), Judge McCormick also cited a March 11 court decision involving Broadview Heights, the community where MADION is based. Fellow Cuyahoga County Common Judge Michael Astrag granted a summary judgment in behalf of Bass Energy and Ohio Valley Energy Systems against Broadview Heights, declaring that the Cleveland suburb's Community Bill of Rights, passed in 2012, "is an invalid exercise of its home rule authority and is pre-empted by ORC Chapter 1509 as a matter of law.”

With those decisions in mind, Judge McCormick wrote in his judgment order, “Like (in) Bass Energy, this court rules that the principles articulated in Morrison (Munroe Falls) necessitate a finding that article XV (the Broadview Heights bill of rights) is preempted by R.C. chapter 1509. Thus, Article XV is unenforceable… The court finds that it is beyond doubt that plaintiffs can prove no set of facts in support of their claims that would entitle them to relief.”

The defendants who prevailed against MADION included Ohio Gov. John Kasich and the state of Ohio, along with two energy companies. The journal entry filed in Cuyahoga County Common Pleas Court shows that copies of the dismissal of MADION’s lawsuit were sent to three different lawyers with the Ohio Attorney General’s office, as well as attorneys for high-octane Cleveland private law firm, Vorys, Sater, Seymour and Pease.

This is notable in that Athens County Prosecutor Keller Blackburn, responding to a query from the county Commissioners, recommended last week that the county ask state Attorney General Michael DeWine and the Secretary of State’s Office about whether a local community can regulate oil and gas drilling, despite ORC 1509, as would happen under the proposed county charter and bill of rights amendment.

Judging from the state of Ohio’s position, represented by DeWine’s AG attorneys as defendants in the MADION class-action case, there’s not much mystery about what sort of answer Blackburn will get from the Attorney General. If he responds at all, DeWine likely will say no dice on the Athens County community bill of rights, just as his office’s attorneys argued in the MADION case.

It remains uncertain how that will affect the Athens County charter amendment/bill of rights going to voters in November. In Columbus Thursday, a committee turning in petitions for a bill of rights/charter amendment, which includes a fracking ban, acknowledged the legal challenges. “There’s a good chance the court will side with the industry,” bill of rights organizer Carolyn Harding told the Columbus Dispatch. “We’re not naïve.”

The amendment for Athens County is patterned closely after the Broadview Heights’ and city of Athens’ community bill of rights (and the one in Columbus). The proposal uses much of the inherent local community rights rhetoric included in all of CELDF’s legal filings and news releases. And that’s the legal reasoning that Ohio judges and justices so far have disregarded when ruling in favor of state regulation of oil and gas drilling.

MADION, for its part, plans to appeal Judge McCormick’s decision from last Thursday. The city of Broadview Heights, in losing its case last March, decided against appealing, and withdrew its drilling regulations from city law.

Tish O’Dell, Ohio community organizer for the Community Environmental Legal Defense Fund and one of the plaintiffs in the MADION class-action suit, issued a news release after Judge McCormick’s dismissal of the lawsuit.

She and the news release seem to suggest that court decisions don’t matter as much as what local people decide for themselves.

“Yesterday’s decision in the class action lawsuit further reveals what more and more people are coming to realize,” the release said. “Our existing structure of law denies local, democratic self-governance, it denies communities the authority to protect themselves from fracking, and it denies communities the authority to protect their water and the natural environment.

“The judge, refusing to hear oral arguments and refusing to speak to the democratic rights of human beings, focused solely on the authority of the state and corporations to disregard the will of the people,” the CELDF release states. “He ignored arguments the citizens made that were based on the Ohio Constitution's guarantee that empowers the people to terminate unjust laws. It appears as if the people of Broadview Heights do not exist under the law.”

In the release, O’Dell states, “Today, our communities and the people who live in them are invisible under the law. The people of Ohio, however, are insisting otherwise. Regardless of any court decision, they know they have the inalienable right to govern their communities, to protect their air and water, and to create the future they envision for themselves and their children. And they are acting on that knowledge as they continue to advance community rights across the state of Ohio.”

The release notes that MADION is appealing the dismissal of its class-action suit, and that residents of four other counties (including Athens) have turned in initiative petitions to place community rights initiatives on the ballot in November. “They understand inalienable rights are inherent in communities, and not bestowed by any court,” the release said.

In a statement to the news media in May, Terry Lodge, the Toledo lawyer representing MADION, voiced a similar sentiment, suggesting the community bill of rights campaigns actually represent a “rebellion” against the corporate state. “The core of the (MADION) lawsuit are several long-forgotten provisions of the Ohio Constitution, which contemplate that citizens have the right to change a government that has ceased to protect them. Given the nature of the ‘corporate state,’ change in the power structure is urgently needed.”

He continues, “There is precedent in the 21^st century in the townships and cities in Pennsylvania and a growing number of other places, where local bill of rights approaches are forcing local leaders and economic interests to understand that rebellion is forming.”