K&H Fracking

The site of K&H injection wells in eastern Athens County.

For the third year in a row, the Athens County Bill of Rights Committee will seek to put the question of turning the county into a charter form of government to voters in November.

As with the other initiatives, this charter proposal doubles as an effort to keep oil and gas horizontal hydraulic fracturing (fracking) out of Athens County, through the use of local water for fracking operations. It also would prohibit fracking waste-injection wells, of which Athens County already has several in operation.

This past September, for the second year in a row, the Ohio Supreme Court ruled that a proposed anti-fracking charter amendment for Athens County would not appear on the county’s general election ballot. The amendment, in addition to setting up a charter form of government, would have outlawed fracking waste injections wells in Athens County, as well as the use of county water resources for oil and gas drilling activities in Athens County and elsewhere. The latter provision would substantially curtail any future local fracking, which uses an immense amount of water.

So far, the deep-shale oil and gas boom hitting other parts of eastern Ohio in recent years hasn’t extended into Athens County, and it’s an open question whether it ever will.

The same Supreme Court decision also tossed out similarly crafted charter amendment petitions for Meigs and Portage counties. The high court did the same thing the previous year to charter amendment petitions for Athens, Meigs and Fulton counties, but for different reasons.

Both years, the cases reached the Supreme Court (and before that, lower courts) after appeals of decisions by county boards of elections and the state Secretary of State rejecting the petitions.

In its majority decision in September (with one dissenting vote), the Supreme Court ruled that boards of election in each county with a proposed charter, as well as Ohio Secretary of State Jon Husted, were within the law to reject charter petitions. The rejections, the court ruled, were not based on substantive issues, which would not be a legal rationale, but rather on the charter initiatives’ failure “to meet threshold requirements for inclusion on the ballot.”

In his dissent from the majority opinion last September, Justice William O’Neill argued that his colleagues on the high-court bench set too high a bar for local residents seeking to change their form of government. “The majority here would prefer that the relators (community rights charter committees) reinvent the wheel of government in one document. I disagree.”

The Athens County Bill of Rights Committee has criticized the state Supreme Court’s decisions, citing inconsistency in reasons for rejecting the proposals and insufficient explanation by the high court on what must be fixed.

“How convenient to deny there are clearly articulated rules on creating a charter, and then avoid providing clarity,” said ACBORC spokesperson Dick McGinn following the 2016 rejection.

He said the varying legal bases for rejecting the charter measures “leave the people chasing a moving target and unable to vote on their own county initiative, year after year.”

IN THE LATEST PROPOSAL, the ACBORC has attempted to address the Supreme Court’s concerns by more explicitly outlining the plan for government.

For each county office, the proposed charter states that “the duties of (each office, respectively), and the compensation therefore, shall continue to be determined in the manner provided by general law, except as may be further specified by this Charter, or as shall be established by ordinance or referendum.”

The charter further provides that the county Commissioners act with legislative function (which they don’t currently), and that an executive function shall consist of seven elected officials sitting on an “Executive Council,” having the authority to approve or veto ordinances proposed by the commissioners.

The charter does not propose to change the number and functions of elected county officials, and all offices, departments, agencies and their employees also will remain in place.

“However, the charter will empower the county Commissioners and Executive Council to pass ordinances which could affect county offices, departments and agencies,” a brochure says.

As in prior attempts, the proposed charter includes a “bill of rights” that rejects fracking injection wells as violations of human rights to safe and healthy water, land and air.

The charter brochure states that Ohio courts have “ignored the human-rights issue” when ruling against local governments seeking to assert local control over injection and fracking wells and who have challenged the state law that gives the Ohio Department of Natural Resources supremacy.

“The revised Charter for 2017 effectively denies the validity of those lower-court decisions, in the same way, in history the suffragists challenged laws that denied women the right to vote,” the brochure maintains.

Other local efforts in Ohio to pass anti-fracking community bill of rights have used similar arguments, but lower courts and the Supreme Court so far haven’t been impressed.

If the charter passes, the brochure says, the county can sue corporations for continued injection of fracking waste in Athens County. (Athens City already has a voter-approved law prohibiting oil and gas activities inside the city limits, though it has never been called into action, and as a result has never been challenged.)

“Also, the citizens themselves will have the legal authority to intervene on behalf of the county to project themselves and local ecosystems from the dangers posed by injection wells,” the brochure says.

To the question in the brochure of whether the county might go bankrupt attempting to defend the charter against legal challenges, it states that the cost of legal defense must be weighed against the potential cost of air, water and land ruined by waste injection.

In another frequently asked question addressed in the brochure, the matter of loss of property rights comes up.

“You will not be allowed to site an injection well, or to sell fresh water for horizontal hydro-fracking,” the brochure says. “But you will be protected against the state’s using eminent domain to seize your property and turn it over to a corporation for private gain.”

MEANWHILE, IN JANUARY, the Ohio Legislature made it more difficult for local groups proposing such charters to get their issues to voters on the ballot.

House Bill 463, a grab-bag “Christmas Tree” bill passed at the end of the last legislative session, included a provision that, according to the Ohio Legislative Services Commission (OLSC), “requires a board of elections or the Secretary of State to invalidate a local initiative petition if the board or Secretary determines that the petition or any portion of it does not fall within the scope of the local government’s constitutional authority to enact ordinances or does not satisfy the statutory prerequisites to place the issue on the ballot.”

This would present a challenge to anti-fracking charter proposals that run counter to state law, as well as marijuana decriminalization proposals.

H.B. 463 appears to be a legislative effort to turn a particular substantive issue – the state of Ohio reserving regulation of oil and gas activities to the Ohio Department of Natural Resources – into an explicit legal rationale for a board of elections and/or the secretary of state to reject a local anti-fracking charter amendment. The same reasoning might apply to local efforts to decriminalize marijuana.

Ultimately, the end result of H.B. 463 likely will be the same for local efforts to regulate or ban fracking. Ohio courts, from Common Pleas all the way to the Supreme Court, have consistently sided with the oil and gas industry and state of Ohio in affirming that the state, through the ODNR, has primacy over oil and gas regulation.

H.B. 463 would effectively provide a shortcut to that same result, allowing legal rejection of charter amendment petitions on that basis by boards of election and the secretary of state.

The provision of H.B. 463 itself might be vulnerable to challenge, however, the OLSC also said in its analysis, on the grounds “1) that the bill infringes on the people’s right of initiative; and 2) that the bill violates the separation of powers.” – Athens NEWS Editor Terry Smith contributed to this article.

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