Residents of a Cleveland suburb have filed a lawsuit against Ohio and two drilling companies arguing that the state's exclusive authority to regulate and permit oil and gas wells is a violation of their constitutional rights to local self-government.
The residents, who live in Broadview Heights, about 15 miles south of Cleveland, filed the lawsuit against Bass Energy Inc., Ohio Valley Energy, the state and Gov. John Kasich, to "protect the rights of the people to self-governance, including their right to ban fracking," according to the Community Environmental Legal Defense Fund (CELDF), which is helping those involved in the lawsuit and has lead challenges to the industry across the country.
In November 2012, Broadview Heights voters approved a community bill of rights that amended the city's charter and banned the drilling of new oil and gas wells, as well as the transport and injection of industry waste. It was one of the earliest such charter amendments passed in the state in an area removed from the unconventional drilling boom in eastern Ohio.
Over the summer, though, Bass Energy and Ohio Valley Energy filed a complaint in Cuyahoga County Common Pleas Court seeking declaratory relief to prevent the city from interfering with a conventional well being drilled on 100 acres owned by a local church (see Shale Daily, July 28).
The companies argued that the city does not have regulatory authority under state law, which gives the Ohio Department of Natural Resources (ODNR), the "sole and exclusive authority to regulate the permitting, location and spacing of oil and gas wells and production operations within the state."
A group of residents from Broadview Heights that had previously been involved in drafting and proposing the community bill of rights attempted to intervene in the companies’ lawsuit. But in September, a common pleas court judge denied the motion, ruling that the group did not have a direct interest in the case.
At that point, the residents decided to move forward with the lawsuit. CELDF Executive Director Thomas Linzey said the lawsuit, which seeks class action certification, is the first of its kind filed in Ohio.
The residents are primarily challenging HB 278, which was passed in 2004 and clarified ODNR's preemptive regulatory authority. The Ohio Supreme Court is considering a similar case that challenges HB 278 (see Shale Daily, Dec. 30, 2013; June 24, 2013). If the justices hold up the agency's authority, the companies’ attorney, John Keller, told NGI's Shale Daily shortly after Bass and Ohio Valley filed their lawsuit that the case would "pretty well be resolved.”