Another petition to ban oil and natural gas development in Ohio has been invalidated, this time in Youngstown, where the local county board of elections voted unanimously Wednesday not to certify it for the Nov. 3 ballot.
In its decision, the Mahoning County Board of Elections cited an Ohio Supreme Court ruling in February that found municipalities could not prohibit oil and gas development in a way that conflicts with the state's regulatory authority.
"I think a great deal of consideration went into [the vote], particularly in light of the supreme court decision that came down early this year that basically said state law preempts the authority of a local municipality to impede, oppose or regulate these things," Board Chairman Mark Munroe told NGI's Shale Daily. "My own take was the petitions being circulated to put the issue on the ballot were flawed. They were proposing to do something that had been ruled illegal under the constitution."
FrackFree Mahoning Valley needed to secure 1,270 signatures to be certified for the ballot, and it received 1,534 valid signatures. It was the fifth time that the group had tried to put the issue before voters. Similar efforts failed at the ballot box in 2013 and 2014 (see Shale Daily, May 7, 2014). The proposal would have banned exploration, drilling and production in addition to oil and gas infrastructure, among other things, within the city's borders.
The decision comes after Ohio Secretary of State Jon Husted earlier this month invalidated similar petitions in Athens, Fulton and Medina counties (see Shale Daily, Aug. 14). He said 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. As a result, those referendums will not appear on November ballots in those counties.
While Munroe said Husted's decision informed the board of elections vote, it did not factor into it completely.
"The issues in those three counties dealt with the adoption of a county charter form of government," he said. "In Youngstown, this was about amending an existing municipal charter, which is covered under a different section of the Ohio Constitution. While [Husted's] decision was somewhat helpful, that early supreme court decision back in February played a bigger role."
Earlier in the week, the Youngstown City Council had a special meeting, voting to send the charter proposal to the county board of elections for certification.
"That's the process we do. We have to follow procedure anytime anyone gets the signatures; we have a duty to send it forward," said Councilman Mike Ray. "If it meets the qualifications for a charter amendment, we are obligated, we are required by law to go through this process.
Ray said the council received a legal opinion from the city law director to move the petition to the county board of elections for certification. Husted's decision was made at the county level, while the supreme court's ruling did not deal with such charter amendments.
In February, the supreme court ruled narrowly on five zoning ordinances of a Northeast Ohio city that had sought to stop drilling operations within its borders (see Shale Daily, Feb. 17). The court found that those specific ordinances clearly conflicted with the Ohio Department of Natural Resources' (ODNR) "sole and exclusive" authority to regulate oil and gas development under state law. The justices found that while state law preserves certain regulatory powers granted to local governments, it prohibits them from banning oil and gas development.
The high court, however, left the door open for local zoning ordinances that can coexist with ODNR's regulatory role (see Shale Daily, March 9).
"This charter proposal would definitely be in the crosshairs of the supreme court's opinion. The proposal bans any activity; it's the same thing they've done before," said Alan Wenger, chairman of the oil and gas law group at Youngstown-based Harrington, Hoppe & Mitchell. "I thought they'd be smart enough to change the language to fit more within the wiggle room the court allowed. I think if FrackFree files a court appeal against the board of elections' decision, it would be upheld. If the referendum petition was worded differently, maybe not."
After the vote, FrackFree said it would consider legal action against the decision. Organizers in Athens, Fulton and Medina counties have filed a lawsuit in the Ohio Supreme Court against Husted's decision, saying their rights as citizens were violated (see Shale Daily, Aug. 21). A similar battle is ongoing in Meigs County, OH, where activists have sued commissioners for their attempts to prevent an anti-oil and gas charter initiative from getting on the November ballot.