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Activists Take Aim at Energy Development to Amend Ohio Constitution

Frustrated by industry pushback and court defeats, two citizens’ rights groups are spearheading ballot initiatives in Ohio to amend the state constitution in a way that would better guarantee local governments’ ability to regulate hydraulic fracturing (fracking) and related activities.

Local charter amendments to ban or control fracking and other industrial operations have either been rejected by municipalities, or shot down by judges as a violation of state law, and the Ohio Department of Natural Resources’ (ODNR) centralized regulatory authority. The Pennsylvania-based Community Environmental Legal Defense Fund (CELDF), which has drafted and advanced the amendments across the Appalachian Basin, along with the Ohio Community Rights Network, wants to take the issue to a statewide vote.

The proposals would alter Ohio law to ensure local governments may pass and enforce laws without concerns about legal challenges they have faced. Referendums, let alone constitutional amendments, are an uphill battle ,and the organizers face a lengthy process. But it marks the first time such groups have pursued statewide community rights amendments in a new and broader threat to oil and natural gas development in Ohio.

“The simple answer to that is yes, because I think it’s designed to change the whole preemptive provisions in the Ohio Revised Code that are enacted by Chapter 1509, making ODNR the preemptive ruler on oil and gas permitting and development,” said energy attorney Alan Wenger of Youngstown-based Harrington, Hoppe & Mitchell Ltd., when asked if the amendments would dramatically change the industry’s regulatory scheme. “It would throw everything up in the air.”

The Ohio Attorney General’s office certified two petitions last month to amend the state constitution. One would guarantee “local authority to enact laws to protect inalienable rights and the health, safety and welfare of community members and natural ecosystems, free from state preemption or corporate interference.” The other would extend the right to referendum to residents living in townships and counties. Only those living in cities and villages can currently pursue ballot initiatives.

For now, however, industry representatives aren’t concerned. The Ohio Oil and Gas Association (OOGA) has reviewed the proposals and is monitoring the situation, but officials there acknowledged that organizers have a lengthy process to follow before anything gets on the state ballot.

“While this group tries to make this issue about oil and gas, the reality is that it will be broad-reaching and can negatively affect many other industries,” OOGA spokesman Mike Chadsey said. “We know Ohio voters are smart enough to see through the antics of an out-of-state and out-of-touch organization that has repeatedly failed in similar efforts.”

The proposals do appear to be aimed at oil and gas development, with the groups saying that communities across Ohio are increasingly being subjected to fracking, pipelines, compressor stations and other “fossil fuel projects.” But they also acknowledge that if the amendments make the ballot and pass, that communities would have more oversight of things like gun control, predatory lending and minimum wage. 

“We don’t have a fracking, pipeline or development problem, we have a democracy problem,” said CELDF’s Ohio organizer Tish O’Dell. “The constitutional amendment to establish and protect the right to local community self-government takes direct aim at corporate exploitation of communities, and elevates communities to be the lead protectors of public health, safety and welfare.”

Wenger said he expects the petitions to face legal challenges in the coming months. “It would be subject to all kinds of litigation, I would think, before it could go on the ballot as to the confusion it would create and the uncertainty it creates in terms of the application of the language,” he said of the local control amendment.

Two years ago, the Ohio Supreme Court ruled in a key decision that specific ordinances in the Northeast Ohio city of Munroe Falls clearly conflicted with ODNR’s “sole and exclusive” authority to regulate the industry. The ruling, however, was a narrow one that didn’t address broader home rule issues.

Some communities in the state have passed charter amendments to ban fracking, but they’ve failed to stand up to legal challenges. Last September, the Mahoning County Board of Elections voted to prevent such a charter amendment from appearing on the ballot in Youngstown, finding it violated state law.

The legislature recently passed a  law giving county election boards more discretion in determining whether an initiative can appear on a ballot. The Youngstown charter amendment had been rejected six times by voters before the county board made its decision, which was ultimately supported by the Ohio Supreme Court.

The statewide petitions would be scrutinized in a similar fashion, Wenger said. The petitions are under review by the Ohio Ballot Board. After that, organizers would have to collect more than 300,000 signatures from registered voters, including a certain percentage in 44 of Ohio’s 88 counties. The Secretary of State would then have to verify the signatures, and the Ohio Ballot Board would have to write the ballot language, among other requirements.

Organizers in Colorado failed to obtain enough signatures last year for a constitutional amendment to allow local governments to regulate oil and natural gas development.  

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