The county charter/community bill of rights for Athens County appears headed toward the Nov. 3 ballot, but it’s important for residents to be aware of its limitations and potential consequences.
This isn’t intended to recommend how residents vote on the proposed county charge (not yet), but rather that when they vote yes or no, they do so with eyes wide open.
Or another way of putting it, the question isn’t whether stopping oil and gas injection wells and regulating fracking are worthy endeavors (I think they are), but rather whether city and county community bill of rights amendments will accomplish that goal. Evidence strongly suggests they won’t.
Even if the Athens County charter/community bill of rights wins in a landslide, it likely will have no effect on oil-and-gas drilling activities (including injection wells) in Athens County. If you’re voting for this measure to protect county water resources and the environment in general, you’re probably going to be disappointed with the results.
Courts in Ohio and elsewhere across the country have ruled against similar community bill of rights and charters purportedly designed to ban or restrict fracking and other oil and gas drilling activities. Nearly all of these laws were either written by, or based on measures written by, an insurgent outfit in Pennsylvania, the Community Environmental Legal Defense Fund (CELDF).
CELDF’s legal rhetoric and strategies invite deep skepticism. A lot of the “natural rights” gobbledygook is reminiscent of arguments advanced by far-right constitutionalist and posse comitatus groups in the Rocky Mountain West back in the ’80s and early ’90s. I covered some of these groups for small-town Western newspapers, and vividly remember the delirious, consistently unsuccessful legal arguments set forth in their court filings.
The CELDF argues that people of local communities have an “inherent right of local, community self-government” that generally “elevates the consent of the governed above administrative dictates and preemptions that serve special privileges rather than general rights...” In Ohio, specifically, the group maintains that these local natural rights trump the state law that reserves oil-and-gas regulation to the Ohio Department of Natural Resources.
When the courts have been asked to pass judgment on CELDF-written laws, they’ve always said no, citing extensive case law supporting the idea that in many areas, including oil and gas regulation, state or federal law clearly has jurisdiction.
Reuters blows the whistle on CELDF
The international news agency, Reuters, published an eye-opening report on CELDF’s efforts in the U.S. on June 29. Following are some pertinent facts in the Reuters report:
• CELDF “has never won a case that went to court,” despite having convinced 18 communities in six states “to challenge state and federal authorities – and even the U.S. Constitution.” Later the article reports, “So far, five of the communities that have adopted CELDF-written ordinances, including Grant Township (Pennsylvania), have had them challenged in court, and one decided to repeal its measure after a federal judge ruled against it. The other communities say they don’t expect to win.”
• As has been suggested in news releases from CELDF leaders after losing Ohio court cases, they don’t appear to care what the courts say, even if it means local communities end up paying out the nose in legal fees. The Reuters article states that CELDF founder Thomas Linzey “says his goal is not to write local laws that are popular, or stand up in court, but rather to trigger a public debate about community rights to local self-government – even if it means a community ultimately falls into financial ruin.”
Linzey states in the article, "If enough of these cases get in front of a judge, there is a chance we could start to have an impact within the judiciary. And if a town goes bankrupt trying to defend one of our ordinances, well, perhaps that's exactly what is needed to trigger a national movement."
This reinforces the idea that local communities such as Athens and Athens County shouldn’t hold out hopes that their community bill of rights will stop fracking or injection wells. Rather, we’re being asked to become cannon fodder in a legal battle that’s doomed to fail.
Lots of skeptics about CELDF
Legal experts have questioned the idea that a local community can just up and decide to reject laws enshrined in federal and state constitutions and codes. What, they ask, would stop local citizens from trying to enforce their own criminal laws or school segregation, for example?
It’s not just legal experts who are skeptical of the CELDF’s legal strategy. The Reuters article reports that the national environmental group, the Natural Resources Defense Counsel, “considers CELDF’s style too risky for local communities enacting the ordinances.”
If corporations can have ‘personhood,’ why not a stream?
Perhaps the wackiest aspect of the community bill of rights strategy is the explicit granting of “rights” to inanimate objects such as streams and aquifers. The proposed charter/bill of rights amendment in Athens states that “ecosystems within the county of Athens, including but not limited to rivers, streams, wetlands and aquifers, possess the right to exist, flourish and naturally evolve, free from activities prohibited by this charter and other local enactments.”
In one interview, Linzey reinforced this idea, stating, “What is increasingy growing is a realization that for a real environmental movement to occur, ecosystems must have legally enforceable rights of their own.”
While this sounds wonderful in a middle-school nature class sort of way, these are rights that don’t appear anyplace in American law, and if taken to their logical conclusion would nullify private property rights.
You say you want a revolution
That’s the thing about CELDF; they’re perfectly happy working as an insurgency, with the express intent to dismantle the current legal and regulatory system, and replace it with another that does a better job of protecting the natural environment.
How they expect to do this, without backing from the law, courts or legislatures, is a mystery.
The CELDF is an unapologetically revolutionary movement, implicitly endorsing the old French Royalist saying that you’ve got to break some eggs to make an omelet. In the case of Athens County, the eggs could end up being the county’s financial health. It’s still unclear what the omelet would be.
I really doubt that’s what Athens city and county residents signed up for when supporting these anti-fracking community bill of rights proposals.
So what about the county charter that’s part of the Nov. 3 vote in Athens County? That’s a separate issue, one that’s compromised by inclusion of the anti-fracking bill of rights.