The loss of what was billed as an anti-fracking amendment to Youngstown’s charter was surprising only in its margin of 57 percent to 43 percent. It should have been larger.
That is not a commentary on any perceived nonchalance by Youngstown residents about hazards that may be presented by the hydraulic fracturing process used to extract oil and gas from shale formations deep beneath the earth’s surface.
It is, instead a recognition of at least three things:
The science is still inconclusive as to what those dangers may be. Opponents use anecdotal evidence to claim that fracking is a grave threat to the environment; proponents say elements of fracking have been used for generations with few or no documented cases of a direct link between fracking and, for instance, the contamination of well water. Both sides have distributed widely documentaries supporting their story lines.
The anti-fracking amendment, or Community Bill of Rights, as it was called, went far beyond an attempt to control or ban fracking. Most of the amendment was boiler plate produced by a Pennsylvania environmentalist group that ascribed inalienable rights to people, animals, plants and even fungi. It was so fuzzy in its language that anyone could have seized on one section or another to challenge anyone else’s use of virtually any device or chemical that produced noise, odor or a perceived threat. One section effectively negated zoning by stating that Youngstown residents have “an inalienable right to the peaceful enjoyment of their homes, free from interference, intrusion, nuisances, or impediments to access and occupation.”
It was unenforceable for several reasons. As far as fracking goes, the law in Ohio is well established. The Legislature gave the Ohio Department of Natural Resources sole authority to oversee fracking in the state, unless specifically superseded by the Environmental Protection Agency. The Legislature’s authority to act on issues of statewide importance is provided for in the Ohio Constitution and has been upheld by the Ohio Supreme Court. Of course the charter amendment also purported to place the city outside the reach of either the Ohio Constitution or the U.S. Constitution. Historically attempts to abrogate the Constitution have not gone well (Google “War of Northern Aggression). The amendment was an ideological statement, not a serious piece of legislation.
Even though the 1,300-word amendment would have been unenforceable, had it passed it had the potential to send a message to industry — not just the oil and gas industry — that Youngstown was not a welcoming community. Virtually any action taken by a company or an individual could be challenged under a charter that would have stated, “any city resident shall have the authority to enforce this law through an action in equity” and that the resident would be entitled to damages and legal costs. While the prospect of success under this provision would have been slim, some people would have tried. And many companies would have simply seen no reason to risk the expense of defending themselves against a frivolous suit in Youngstown.
The charter was seen, foolishly, as a quick fix to whatever some people thought might ail the city’s environment. There are no quick fixes.
Those who feel that fracking presents a danger to them and their neighbors are going to have to do the hard work of convincing the Legislature that Ohio is so lax as to be courting disaster. There is certainly evidence that the state has not been as contentious as it should have been. Witness its lax oversight of the various D&L companies. One of Ben Lupo’s injection wells most likely precipitated an earthquake while another Lupo operation dumped drilling waste into a storm sewer that connected to a tributary of the Mahoning River.
But such laxity can be corrected without banning an industry that has enormous economic potential. To the extent that it replaces the use of oil or coal with natural gas as a fossil fuel, fracking could even have a positive effect on the environment.