By Alex Ebert  |  Aug. 22, 2019

The Ohio Farm Bureau filed a friend of the court brief in the Ohio Supreme Court on Aug. 22, adding its weight to state and local efforts against the proposed “community rights” charter. The group argues voters in Williams County, in the state’s northwest corner, shouldn’t be allowed to cast ballots for a local charter that would let county officials block state and federal permits if residents believe they would injure the local drinking water supply.

The case is the latest in Ohio’s battle over the future of the “community rights” movement, which opposes the legal status given to businesses and wants communities to have more say on environmental regulations, such as water pollution and access to natural gas fracking sites.

Allowing voters to approve these types of laws could have broad implications for industry, which is wary of any impediments local governments may place on access to natural resources. “Provisions within the Petition could easily be construed to prohibit all agricultural production, or at least make it so regulated that production is practically impossible,” the Ohio Farm Bureau and the Williams County Farm Bureau said in their brief. “In particular, provisions of the charter would prevent the use of irrigation methods commonly practiced by farmers throughout the county.”

Local Power Over Regional Water

The court dispute sprang from local activists’ desire to block a high-capacity well permit in Williams County that would allow a drinking water company, Artesian of Pioneer, to remove millions of gallons of water daily from the Michindoh Aquifer, which spans nine counties across Michigan, Indiana, and Ohio.

The proposed county charter would allow local officials to block companies’ extraction of water from the Michindoh Aquifer for use outside the aquifer’s boundaries, and would also give residents the ability to sue businesses on behalf of the “Michindoh Aquifer and its Ecosystem.”

Tish O’Dell, Ohio Community Organizer for the Community Environmental Legal Defense Fund, said in an email that these powers are necessary to place a “check and balance on a corrupt legislature” in Columbus that is “passing laws to protect corporate interests and profits over the health, safety and welfare of people and nature.”

In July, the Williams County Board of Elections blocked the charter from going on the ballot, arguing it would give the local government unconstitutional authority to ignore state and federal laws. The activists behind the petition filed suit in the Ohio Supreme Court, demanding that the local government put the issue before the voters.

Local Power Is A Perennial Issue

The Farm Bureau arguments opposing the charter echo positions Ohio’s Attorney General advanced in an Aug. 20 friend of the court brief in the same case.

“If a ballot initiative proposes a county charter that voters have no authority to enact via the initiative, are county elections boards constitutionally obligated to include the initiative on the ballot anyway? The answer is no, and the Court should reject the relators’ contrary constitutional arguments,” Ohio Attorney General Dave Yost (R) said in the brief.

The activists argue the county isn’t allowed to block a local charter amendment based on the board’s reading of whether the issue is constitutional. That type of argument won traction in 2017, when the Ohio Supreme Court ruled Cleveland City Council was in the wrong when it refused to allow a ballot initiative even though it would sever a city contract and possibly violate the state constitution.

Community rights activists recently fought and won a similar case in which a board of elections tried to keep a Toledo charter amendment of the ballot. In February, Toledoans adopted that amendment, the “Lake Erie Bill of Rights,” which gives residents the right to sue polluters on behalf of the algal bloom prone lake. But the Lake Erie Bill of Rights has been tied up in court battles since then, and judges have given hints that the law violates state and federal law.

Advocates for community rights laws also face a new hurdle on the horizon: A state law banning these local laws will soon go into effect, due to a provision included in Ohio’s recently enacted 2020-2012 budget bill. It’s likely activists will challenge that provision if it’s asserted by “community rights” opponents.

The case is: Ohio, ex rel. Fleming v. Williams County Bd. of Elections, Ohio, No. 2019-1108, Ohio Farm Bureau amicus filed 8/22/19.

To contact the reporter on this story: Alex Ebert in Columbus, Ohio at aebert@bloomberglaw.com