Another Bid for Local Control Over Fracking Is Thwarted

But plurality decision in Ohio provides guidance to towns to try zoning, rather than permitting, to control oil and gas development.
An anti-fracking rally in Chardon, Ohio. The Ohio Supreme Court ruled that neighboring Monroe does not have the authority to regulate the permitting of oil-and-gas wells within its borders. Credit: Bill Baker, flickr

By Zahra Hirji, InsideClimate News

Munroe Falls became the nation’s latest community to lose a protracted legal battle over local control of oil-and-gas drilling, as the result of a recent Ohio Supreme Court ruling.

But there’s a silver lining: Buried in the 31-page court decision is guidance for Munroe Falls and other Ohio towns trying to flex some muscle over the industry in the future.

On Tuesday, Feb. 17, the Ohio Supreme Court ruled 4-3 that Munroe Falls lacks the authority to regulate permitting, location and spacing of oil-and-gas wells and related development.

Siding with Beck Energy Corporation, a company that has pursued drilling in this northeastern Ohio town of around 5,000 people, the court decision says that “sole and exclusive authority” falls to the state.

At first glance, the decision appears a major win for the oil-and-gas industry, which has challenged several towns over local control of fracking, from New Mexico to New York.

Industry trade groups such as the Ohio Oil and Gas Association and American Petroleum Institute have hailed the decision in recent days.

Ohio Supreme Court Justice Judith Lanzinger sharply disagreed with the ruling. She wrote in her dissent: “There is no need for the state to act as the thousand-pound gorilla, gobbling up exclusive authority over the oil and gas industry, leaving not even a banana peel of home rule for municipalities.” Home rule is a town’s ability to self-govern, within limits set by the state.

Her colleague in dissent Justice William O’Neill, the lone Democrat on the bench, similarly wrote: “Let’s be clear here. The Ohio General Assembly has created a zookeeper to feed the elephant in the living room. What the drilling industry has bought and paid for in campaign contributions they shall receive.”

However, multiple lawyers have told InsideClimate News that this decision offers some hope to proponents of home rule in Ohio.

The Munroe Falls case involves what’s called a “plurality decision.” That means multiple judges came to the same conclusion but through different interpretations of the law.

In this case, three judges in the majority interpreted the law a certain way in favor of Beck Energy, as explained in the opinion by Justice Judith French. An additional judge, Justice Terrence O’Donnell, came to the same conclusion but by other reasoning—and that’s the opinion of significance here.

This second interpretation sends the clear message: Don’t use permitting to control drilling, try zoning instead, said Heidi Robertson, an environmental law professor at the Cleveland-Marshall College of Law in Ohio. Robertson has been following this case, State ex rel. Morrison v. Beck Energy Corp., since its origins in 2011.

Here are some ways a town can use zoning: creating industrial zones, setting light-and-noise standards, and designating where roads can and can’t be built. These new zoning rules can’t be specific or unique to the oil-and-gas industry, said Robertson.

New-York based lawyer Deborah Goldberg, from the nonprofit legal group Earthjustice, filed a brief earlier in the case that she said encourages the court to “not close the door on zoning” with this decision. She is pleased with the outcome and says it mirrors high court decisions in other states, including Pennsylvania and New York, to protect a community’s right to turn to zoning to restrict oil-and-gas drilling, at least partially.

But this isn’t a foolproof plan, as noted by Vanessa Pesec, president of the grassroots group Network for Oil and Gas Accountability and Protection. She predicts that any community attempting to pass new zoning laws will suffer the same fate as Munroe Falls, where the energy company pushes back and the court rules in favor of state control.

An Economic Boom with a Human Cost

From 2012 through 2013, Ohio’s oil production and natural gas production increased by 62 and 97 percent, respectively. In the first three quarters of 2014, production further increased, according to a December report by the Ohio Department of Natural Resources. This surge is due primarily to hydraulic fracturing, or fracking, a method of injecting sand, water and chemicals down a well to crack open shale bedrock and extract fossil fuels that were previously hard to access.

The growth in the energy sector has been a boon for jobs, but it has also brought a string of major accidents, as evident in the last three months of 2014. In December, a gas well leaking out of control for about a week in eastern Ohio’s Monroe County prompted the evacuation of more than 20 families. In November, a worker was killed from a well pad explosion in Noble County. In October, there was a major well blowout in the eastern town of Bloomingdale and over 400 people were evacuated.

Consequently, wary citizens are increasingly turning to their local governments to use existing rules to stop new development, as was the case in Munroe Falls––or to draw up new rules or ban fracking and related activities.

This issue in Munroe Falls arose in early 2011 when Beck Energy acquired a controversial lease in a residential neighborhood, as well as a state permit to drill there. The town wanted Beck Energy to file for a separate local permit, costing $800, as well taking on extra measures, such as holding a public hearing, before it could break ground.

The town relied on both permitting and zoning rules it passed in the 1990s. Since then, lawmakers have repeatedly expanded the state’s authority over drilling at the expense of home rule. Knowing this, Beck Energy said it shouldn’t have to take these extra steps if it already had the state’s permission; then it sued.

The recent decision found that the town’s permitting scheme was “in conflict” with the state. It also ruled that a handful of the town’s zoning laws overlapped with the permitting scheme and were similarly struck down.

It’s unclear when, if at all, Beck Energy will pursue drilling, considering the current drop in oil prices. The company didn’t respond to a request for comment.

According to Munroe Falls’ mayor, Frank Larson, this case was not about stopping fracking—it was bigger than that. “It’s about the state taking away our [home rule] rights,” he said.

The mayor said one possible course of action for Munroe Falls, or other communities, is seeking a change to Ohio’s Constitution so that it “would not permit the legislature to strip cities of their home rule.” This option would be “a considerable effort,” he added. The mayor said he’s meeting with the town’s lawyers this week to discuss the next steps.

Meanwhile, Ohio also has another fracking case, this one involving a ban, moving through the courts. Last summer, two energy companies sued the town of Broadview Heights over its community bill of rights, which effectively bans drilling. In the months following, a group of citizens then filed a class action lawsuit against the state to defend the bill of rights.

Broadview Heights is one of five Ohio towns—including Mansfield, Oberlin, Athens and Yellow Springs—that have adopted community bills of rights with anti-fracking measures included.

Many more communities, including Columbus (pop. approximately 822,000), are looking to follow suit in the coming year, said Tish O’Dell, the Ohio coordinator for Community Environmental Legal Defense Fund, the group that offers guidance on community bills of rights. She said she hopes the Munroe Falls court decision inspires more people to speak up for their rights and take up the cause.

Will the Munroe Falls decision influence the Broadview Heights case? Absolutely, said law professor Robertson. But the exact impact is less clear. That’s because both cases involve different parts of the law.

Robertson said she doubts the court will uphold any of the community bills of rights. “There’s a lot of passion in them…but they are trying to do too many things,” she said.

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