Ohio Secretary of State Jon Husted on Thursday invalidated petitions in three counties across the state that sought to ban oil and gas development, saying they were an attempt to circumvent state law in a way that the courts have already found to be a violation of the Ohio Constitution.
The move was the latest in a battle between the state's centralized regulatory authority and activists who have fought for more control over oil and gas development at the local level. It was the first time the secretary of state's office has invalidated petitions for charter amendments that would limit or ban development. Those challenges have spread in recent years with the rise of Utica Shale development in the state.
"The issue of whether local communities can get around state laws on fracking has already been litigated," Husted said in announcing his decision, which means the initiatives won’t be on November ballots. "Allowing these proposals to proceed will only serve a false promise that wastes taxpayer's time and money and will eventually end in sending the charters to certain death in the courts."
More than 9,000 people had signed the petitions in Athens, Fulton and Medina counties, all of which sought to ban underground injection wells. But activists in Fulton and Medina counties went further to include a ban on "the exploration for, or extraction of gas or oil" within their borders, where no unconventional oil and gas development has occurred. Husted had received protests from all three county boards of elections asking him to determine the validity or invalidity of the charter petitions as the state's chief elections officer.
In a letter to the county boards of elections, Husted said "the courts have spoken: a municipality may not discriminate against, unfairly impede, or obstruct the operation of oil and gas wells in Ohio.” In addition to the county charter petitions, activists in Broadview Heights, Cincinnati, Oberlin, Mansfield, Bowling Green and Youngstown, among others, have either passed or tried to pass similar amendments banning or limiting oil and gas development.
But in a landmark ruling in February, the Ohio Supreme Court ruled that while state law preserves certain regulatory powers granted to local governments, it expressly prohibits them from exercising those powers in a way that discriminates against the state's centralized regulatory authority (see Shale Daily, Feb. 17). The court cited the Ohio Department of Natural Resources’ "sole and exclusive authority to regulate the permitting, location and spacing of oil and gas wells and production operations" under state law.
Shortly after the high court's ruling, a common pleas court judge struck down Broadview Heights’ community bill of rights that banned new oil and gas wells and injection wells (see Shale Daily, March 13). The judge cited the Supreme Court's decision.
Husted also noted that the Athens, Fulton and Medina counties charter petitions included a community bill of rights. Some legal experts have criticized those provisions as being too vague (see Shale Daily, March 9). Many efforts to ban oil and gas development in the state have included such language to grant certain rights to ecosystems. Many of the blanket provisions have reportedly been drafted by the Community Environmental Legal Defense Fund, which decried Husted's decision on its website as a violation of the public's "inalienable" rights.
The groups behind the county charter petitions were outraged by the secretary of state’s decision, releasing statements to say their rights as citizens had been violated. The groups also said they would consider pushing for a constitutional amendment to prevent similar outcomes in the future.
Husted said the charter petitions failed to provide for a county executive or any "meaningful change to the structure of county government" to accommodate the changes of a charter amendment.
The Ohio Oil and Gas Association (OOGA) hailed the secretary of state's decision and said it was in line with state law and recent legal findings.
"These petitions sought to circumvent these precedents and were rightfully disallowed on the November ballot," OOGA said. "The decision will also mean that local taxpayer funds will not go towards an expensive ballot initiative that may have resulted in further lawsuits with the same finding."
It remains unclear, but Husted's decision is also likely to affect other ballot initiatives under way in Youngstown and Meigs County. Youngstown voters rejected a charter amendment to ban oil and gas development within city limits in 2013 and 2014, but activists there are pushing to put the issue in front of voters again (see Shale Daily, May 7, 2014). In Meigs County, activists have sued commissioners for their attempts to prevent a charter initiative on the November ballot.