For years, local Ohioans have been told by courts and elected officials that they have no control over fracking — “it is a matter of state law.”
However, groups of determined residents are refusing to accept this argument, taking steps to establish local democratic control over what they see as vital societal questions of health, safety, and planetary survival. But not without resistance from their own governments.
In recent years, Ohio has seen fracking-induced earthquakes, contaminated waterways, and new proposals for natural gas pipelines and compressor stations, all amidst the accelerating march of climate change. Together, these events have brought the fight against fracking to a fever pitch for the Buckeye State.
Fed up, residents have taken to the local ballot initiative process — by which citizens write, petition for, and vote on legislation — to propose “Community Bill of Rights” ordinances to ban fracking, injection wells, and associated infrastructure for natural gas production and transportation. Their efforst are part of a growing nationwide Community Rights movement
This summer, citizens of Medina, Portage, Athens, and Meigs counties collected signatures for county-wide ballot initiatives that would establish new county charters and enshrine rights to local democratic control over fossil fuel development. All four gathered enough signatures to get on their respective November ballots. Normally, that would be enough. But not in Ohio, where Secretary of State and gubernatorial hopeful Jon Husted has done everything he can to stymie the movement’s use of direct democracy.
It is a rematch from last year, which ended in the Ohio Supreme Court pulling three county-wide initiatives — in Medina, Fulton, and Athens counties — from their ballots, just weeks before the November 2015 elections.
The court battle came after Husted claimed “unfettered authority” to determine the legality of local initiatives, before they go to a vote. Though his power grab was struck down by the court, Husted won the case on a technicality, and no votes were cast. The court ruled that the county initiatives failed to define a new “form of government,” a requirement for new county charters, which all the initiatives proposed.
Making Adjustments for 2016
This year, petitioners fine-tuned their initiatives to insure they would satisfy the “form of government” requirement; though they argue the requirement is being politically applied. Nonetheless, petitioners updated their initiatives, going so far as to detail how county coroners will be compensated under the new charters.
With Husted’s power to remove local ballot initiatives squashed, he has turned to organizing county boards of elections — appointed by Husted himself — to do his bidding. The links between Husted, the boards of elections, and the industry are clear. In Meigs county, for example, one member of the board of elections is Ohio Gas Association President Jimmy Stewart, and in March 2016, the Ohio Oil and Gas Association hosted a fundraiser for Husted.
In July, the county boards of elections in Meigs, Portage, and Athens all voted 4-0 to pull their measures from the ballot. The boards of elections say the measures are invalid because they do not delineate every single duty of all county officers. In Medina — where a local judge and prosecutor have cautiously resisted the NEXUS natural gas pipeline and a gas compressor station — the board split 2-2. The decision was then put to Husted, who broke the tie in favor of the fossil fuel industry.
Petitioners in all four counties are filing appeals. “It’s a form of voter suppression,” said Tish O’Dell of the Ohio Community Rights Network, who has worked with Ohio communities since 2012 to propose and pass similar measures.
Meigs, Portage, and Athens petitioners have filed protests against their boards of elections, but like Medina’s tie breaker vote, their protests will be sent to Husted’s desk. If and when he denies them, petitioners say they will appeal to the Ohio Supreme Court. Medina’s appeal of Husted’s tie-breaking vote will head straight to the Ohio Supreme Court.
Husted is doing his best to expand on the 2015 Ohio Supreme Court decision, which recognized an “alternative basis for invalidating [ ] charter petitions.” Namely, via the “form of government” requirement. Upon closer look, however, it appears that a basic assumption underpinning the tactic is flawed.
In 2015 the court clarified that Husted and boards of elections have no authority to rule on the legality or constitutionality of petitions. The basis of Husted’s argument is that the “form of government” question is an administrative one, not a legal one. But the requirement comes from the Ohio Constitution; ruling on it requires interpreting the constitution.
Athens County’s own county prosecutor pointed this out in a letter to his board of elections, advising them to place their initiative on the ballot. “It is the Judicial Branch and not the Executive Branch that is to interpret issues of Constitutionality,” the prosecutor writes. “The Board [of Elections] should perform a ministerial function and allow the initiative process to take place if the number of signatures required are valid and properly presented.” Instead, the Athens County Board of Elections invalidated the initiative because it “relies on the [Ohio] Revised Code to determine qualifications and salaries of elected officials.”
Democracy at Stake
In his tie-breaking decision for Medina, Husted points to the only other Ohio county charters that were passed via the initiative process — in Summit and Cuyahoga counties — as positive examples of how the 2016 measures should be written.
Husted’s office declined to comment on how the Summit and Cuyahoga initiatives satisfied the “form of government” requirement and what distinguishes them from those being proposed for the November 2016 election. “It would be inappropriate to offer additional comment while the matter is pending before our office,” wrote an Ohio Secretary of State spokesperson in an email.
In their appeals, the petitioners argue that the Summit and Cuyahoga examples actually support their argument. In protest, the petitioners point out that the Ohio County Commissioners Handbook “notes that neither Summit County nor Cuyahoga County…have followed” the form of government requirement.
Ohio’s county boards of elections and Secretary of State give no guidance for petitioners on how they can satisfy this “form of government” standard. When queried by DeSmog, the Secretary of State’s office gave no comment on this. As a result, petitioners are left guessing and the democratic process held hostage by the personal interpretations of boards of elections and the Secretary of State.
Climate at Stake
Meanwhile, climate change is accelerating by leaps and bounds. Anthrax bacteria are being liberated by thawing permafrost, Lake Erie is warming, melting glaciers could release Cold War-era toxic waste buried beneath Greenland’s ice, the Zika virus has hit the United States, ecosystems are becoming unbound, and the sea continues to rise.
But for the oil and gas industry, millions of dollars are at stake in this local ballot battleground. The anti-fracking ballot initiatives would have immediate impacts not only on extraction and injection of fracking waste, but on large infrastructure projects — like the NEXUS pipeline, which is slated to carry fracked gas across Ohio but is seeing opposition from local residents who are holding up the project. According to NEXUS court documents, for every month of delay, the pipeline project loses $17 million. In Medina, the project is a year behind schedule.
The pipeline, which proposes to pump 1.5 billion cubic feet of natural gas through Ohio each day, has been met with opposition again and again. Defiant private property owners and county prosecutors and judges have postponed land surveying, jeopardizing NEXUS’s permit application with the Federal Energy Regulatory Commission. The last thing the pipeline’s owner, Spectra Energy, needs is a legal fight against a new county charter. For Spectra, the drawn-out nature of the democratic process currently at play in Ohio is a liability.
Regardless of the accuracy of their legal arguments, the actions of Ohio Secretary of State Husted and the boards of elections have already affected that process.
Every day the measures are caught up in court is a day of full-out campaigning lost. Among the uncertainty, petitioners continue to campaign as though the measures will be voted on this fall. And if they are refused the ballot, Ohio petitioners say they will try again next year. And the year after that. And the one after that.
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