Disagreement On Legal Authority Complicates Local Fracking Bans

By Daniel Moore / Pittsburgh Post-Gazette

Last week in eastern Ohio, where natural gas production in the Utica Shale has been booming, voters in three towns rejected ballot proposals to ban hydraulic fracturing. While Athens overwhelmingly passed a fracking ban, Gates Mills, Kent and Youngstown voted down their measures.

The ballot issues highlight the disparity in responses among local officials who are befuddled by the complicated legal baggage of prohibiting a practice that some say is solely regulated at a state level. Bans could legally embroil areas where drilling companies operate, especially with the Ohio Supreme Court soon to rule on the ability of local authorities to regulate fracking.

Local authority to regulate fracking is a central issue in the case that the Ohio Supreme Court is reviewing: Munroe Falls v. Beck Energy. In 2011, a state court backed the town’s right to zone and issue permits to the oil and gas drilling company. An appellate court in February sided with the company.

Oral arguments were heard by the state Supreme Court earlier this year.

The Ohio Oil and Gas Association is closely watching for a decision, said spokeswoman Penny Siepel. “Once that court case is decided, I think it will probably help … reaffirm that the state ultimately has control over the oil and gas industry,” Ms. Seipel said.

Shawn Bennett, senior vice president of the industry group, said his member companies answer solely to the Ohio Department of Natural Resources.

“These bans are, and will remain, without any teeth,” Mr. Bennett said. “When (companies) submit their permit, that permit will go to the division and the division will choose whether to accept or deny the permit.”

The local bans are coming up for votes because some are afraid that the extraction technique — which has revolutionized the oil and gas industry and involves injecting millions of gallons of water, sand and chemicals into shale formations — could pollute air and water.

Blocking the practice is a way for towns to assert their local rights over corporate interests, said Tish O’Dell, Ohio coordinator for the Community Environmental Legal Defense Fund, which has, by the group’s count, helped hundreds of communities nationwide write anti-fracking ordinances.

“I’ve been asked a lot about what it means,” Ms. O’Dell said. “What it means is that the residents passed a law in their community, and just like any other law, it’s on the books. If someone tries to violate the law, then it needs to be defended and enforced.”

In passing the ban, Athens joined the Ohio communities of Yellow Springs, Mansfield and Broadview Heights, which in previous elections have adopted a Community Bill of Rights drafted by the group, a nonprofit based in Mercersburg, Pa. The group also helped Pittsburgh pass its fracking ban in 2010, when it became the first U.S. city to approve such a measure.

 

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