By Jamison Cocklin
Frack Free Mahoning Valley organizers say they are close to gathering enough signatures to place a referendum on the May 7 primary ballot asking voters to ban natural- gas drilling in the city.
As the Wednesday filing deadline nears, local business leaders and the oil and gas industry are paying close attention, and a fight to stave off a charter amendment could be shaping up. That could open a telling window into how two sides of the fracking debate are interacting in the early stages of the Utica-Point Pleasant shale play.
In October, city council approved legislation to allow the city to solicit offers from companies to lease city-owned land for gas and oil drilling. At the time, activists said they would conduct a petition drive aimed at curbing that activity.
The Community Environmental Legal Defense Fund, a national public-interest law firm, was enlisted by Frack Free to draw up a charter amendment. The short document is relatively vague in its language, but it’s aimed at giving residents a stronger voice in opposing any oil and gas activity within city limits to protect natural resources.
However, some of its core provisions, if approved, include an outright ban, language to enforce any activity that violates it or natural resources and a stipulation that imposes liabilities on operations in neighboring communities. Such provisions could prove problematic for future economic development.
“It’s completely unenforceable, to whatever extent it places limitations on the oil and gas industry that conflict with state regulations,” said Youngstown City Law Director Anthony Farris.
“There could be some conflict as a matter of public perception, to the extent that some portions were enforced; it would greatly discourage economic activity because of the possible legal consequences for violation of any of its vague and confusing provisions.”
Those who represent the oil and gas industry say the charter amendment has no clout because the Ohio Department of Natural Resources has the “sole and exclusive authority to regulate the permitting, location, and spacing of oil and gas wells and production operations within the state,” according to Ohio Revised Code 1509.02.
In other words, local government officials have no say in the matter. Yet, a city’s charter is similar to the U.S. Constitution; it acts as a sort of binding and supreme local law. No other ordinance can supersede it.
A charter amendment like that being pursued by Frack Free could put local leaders in a tight spot, and legal challenges could arise if it were passed and violated. This could also prove meddlesome for the oil and gas industry if it is forced to wait for any litigation that could arise, especially if other cities and towns across the state continue to consider or pass similar legislation.
“The importance of a charter amendment is it is approved by the people, it’s a broad mandate from the voters,” said John Spon, city law director in Mansfield, where voters approved a similar amendment in November.
“That will be given far greater weight by a court when it’s the voice of thousands rather than a few on city council.”
Mansfield’s charter amendment was highly specific to injection wells, unlike the proposal in Youngstown that is a blanket prohibition banning all drilling activity — those are easier “to strip down” and defeat in court, Spon said.
Recently, Mansfield’s amendment was challenged by Preferred Fluids Management, a Texas company that had obtained permits there for two injection wells. It filed a lawsuit against Mansfield, claiming it had no legal grounds to require it to seek approval for the wells from the city council, as Mansfield’s amendment stipulates.
When it became clear that Mansfield would act on its charter and file a motion to dismiss the lawsuit, Preferred withdrew its challenge.
Similar amendments have been passed in Broadview Heights, Cincinnati and Pittsburgh. As a result, some companies have taken their business to suburban communities, said Tony Paglia, vice president of government and media affairs at the Regional Chamber. Other communities in Pennsylvania and Ohio are considering charter amendments as well.
Youngstown’s elected officials do not support the measure, as leaders did in Mansfield in Richland County where little oil and gas operations are occurring.
“Corporations don’t want to enter a community and say their rights trump those of the local citizens — it’s bad press.” said Susie Beiersdorfer, who is helping lead Frack Free’s petition drive. “This is simply about saying we have inalienable rights to clean air and water. Why shouldn’t local communities be able to decide what industries come onto their land?”
Rebecca Heimlich, the Ohio campaign manager for the American Petroleum Institute, one of the country’s largest oil and gas trade associations, said she’s confident in the legal status of the state’s role in regulating the industry’s operations here — considered by many to be among some of the strongest in the nation. Chief among her concerns is the misinformation that she said groups like Frack Free spread.
“We want people to have the facts about our industry, about what the laws are and what regulations are in place to keep the community safe,” she said. “It creates challenges to education. It’s a frustration when there are laws put on the books in local jurisdictions that misinform people about what the law really is.”
Heimlich added that much of her time is spent reaching out to the public and local business leaders. But Jack Shaner, senior director of legislative and public affairs at the nonpartisan Ohio Environmental Council says that the oil and gas industry is not doing enough to calm public fears about safety.
“The industry has certainly tread a path to the doors of the state and local chambers and local business leaders. It seems they’re taking a while to work their way down to community groups and average citizens,” he said. “They’re armed to the teeth; there’s no question. I think a vast majority of Ohioans generally want to learn more about all sides of this issue. Public opinion is up for grabs.”
At best, Beiersdorfer, also a part-time geology professor at Youngstown State University, and others at Frack Free, hope that even if the charter amendment cannot prevent oil and gas from eventually coming to Youngstown that it slows down operations and forces people to think more about any potential consequences.
The group has said that if it fails to get a referendum question on the May 7 ballot, it will retain its signatures and make a push to do the same for November’s election.