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For Now, Ohio Supreme Court Rules Against Local Anti-Fracking Petitions

The Ohio Supreme Court has upheld Secretary of State Jon Husted's decision to invalidate petitions in three counties across the state that sought to ban oil and gas development in a ruling that will keep the initiatives off November ballots.

More than 9,000 people had signed petitions in Athens, Fulton and Medina counties to vote for establishing a county charter that would have banned underground injection wells, oil and natural gas exploration and production, or both. In August, Husted invalidated the petitions and removed them from November ballots, saying state courts had already found such bans to be a violation of the Ohio Constitution (see Shale Daily, Aug. 14).

But the high court's decision did not resolve the issue of grassroots referendums across the state seeking to ban oil and gas development. The petitions are likely to be circulated again next year, organizers said, because the court found that Husted does not have the power to deem voter initiatives unconstitutional.

"An unconstitutional proposal may still be a proper item for referendum or initiative," the court wrote. "If passed, the measure becomes void and unenforceable only when declared unconstitutional by a court of competent jurisdiction. Until then, the people's power of referendum remains paramount."

The court upheld Husted's decision because the organizers proposed charters did not provide for a county executive or any meaningful change to the structure of county government to accommodate the changes a charter would bring. The court said the charters did not satisfy the threshold requirements under state law.

"In this and every decision we make, we seek to follow the law and the constitution, and the court's ruling today is affirmation that we made the right choice," Husted said on Wednesday after the court made its decision. "As I have stated previously, this course of action is not the appropriate path to seek change on this issue. If advocates of these local proposals truly want to effect change, they should use the legislative process available to them and either work with their representatives in the Ohio General Assembly or propose a statewide initiated statute."

Shortly after Husted issued his decision in August, the Community Environmental Legal Defense Fund filed a lawsuit in the state Supreme Court on behalf of organizers in all three counties saying their rights had been violated (see Shale Daily, Aug. 21). Husted did cite the charters' lack of government structure in his decision, but he also noted that in February the Supreme Court ruled that local governments are prohibited from exercising their powers in a way that discriminates against the state's "sole and exclusive" authority to regulate oil and gas development.

While the high court acknowledged its own decision, it added that state law "confers no authority upon the secretary of state to invalidate charter petitions based upon his assessment of the legality or constitutionality of the measure."

Both sides claimed victory with the ruling. Petition organizers said they would continue to fight for charters now that Husted can't invalidate them if they include the proper language.

"The Ohio Supreme Court -- rather than being influenced by the oil and gas industry -- stood by the people's rights," said Athens County organizer Dick McGinn. "Communities across the state are celebrating this decision and are ready to get to work to draft home rule county charter initiatives that meet the Supreme Court's requirements."

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