Anti-Fracking Activists Try Creative Approach with Ballot Measures

Drilling a shale gas well in eastern Ohio.
Drilling a shale gas well in eastern Ohio.
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Commuters passed through a suburban intersection during the evening rush hour, while two village residents stood on the corner, in a cold rain, strategizing about where to put up their signs.

"I’m thinking probably right here, kind of on an angle. Yeah, so those people can see it...I’m going to go put one on the other side of the street," Bob
Andreano told Regina Staple. The signs read, "Vote yes for Issue 51. Preserve Gates Mills."

The two are part of a residents’ activist group behind a ballot measure they call a Community Bill of Rights. It’s aimed at keeping fracking out of town. The village already has a few dozen traditional gas wells, and lies on the edge of the Marcellus shale formation.

Voters in Kent and Athens will see similar measures on their ballots. So will voters in Youngstown, where the measure has been defeated three times already, although it’s gained support each time. Oberlin, Broadview Heights, and Yellow Springs already have Community Bills of Rights.

These measures are causing a stir not only because they take aim at an industry many regard as an economic godsend, but also because of how they try to do that. The model is being pushed by a Pennsylvania-based advocacy group, the Community Environmental Legal Defense Fund.

The Bills of Rights ban drilling, but they also go much, much further.

"It purports to provide that any U.S. or Ohio law inconsistent with the Gates Mills charter is unenforceable in Gates Mills," said Shawn Riley, an attorney and Gates Mills' mayor. He opposes the measure.

The conflict over fracking has evolved into a fight over state versus local power because many who worry about fracking’s impacts see Ohio law as overly friendly to drillers.

As the shale gas boom has taken off, state lawmakers have decided that oil and gas drillers should be exempt from local land use laws that apply to other businesses, which streamlines economic development. That means localities can’t ban the industry, or regulate it. Instead, lawmakers gave that job to one agency, the Ohio Department of Natural Resources.

In response to an interview request, ODNR released a statement saying having uniform statewide rules is the best way to protect health and the environment.

But the agency has a dual mission of promoting and regulating industry. And the activists say ODNR does too much promotion and not enough protection. So they’re trying to take the power back. Along with challenging state law, the Bills of Rights also assert residents’ rights to pure air and water – and not just human residents, but all "natural communities," or ecosystems.

Riley worries this could have unintended consequences.

"So, for example, if the village uses salt on its roads in the winter, and that washes into the river, can somebody sue on behalf of the fish because the waterway has been polluted?" he wondered.

Anti-fracking activists in Ohio face an uphill battle because of how the state has consolidated power over the issue, said Heidi Robertson, an environmental law professor at Cleveland State University.

"So I hand it to them for being creative. And they are having some success getting some localities to pass these things," she said. "The problem is, is any of it going to be enforceable? And I doubt it."

Broadview Heights’ measure is being tested in the courts right now. At the same time, the state Supreme Court is considering a dispute between Munroe Falls and Beck Energy. That deals with more traditional zoning regulations, not a Bill of Rights measure – but it’s likely to clarify the balance of power between state and local government over drilling.

Meanwhile, the activists’ language reflects how polarized the fracking debate has become. Bob Andreano, standing on the street in Gates Mills with his yard signs, harkened back to the civil rights era and said unjust laws must be challenged. Regina Staple agreed.

"We’re not just going to sit back, and because they say it’s against state law, we’re going to stop," she said. "Because that’s the only way you get things changed: small groups of concerned citizens get together, and one step at a time, make change."

Mayor Riley says the activists’ hearts might be in the right place, but their ballot measure is not.

"It seems to me that this group’s real complaint is down in Columbus," he said.

If the problem is state law, he said, go to state lawmakers to change it. That, of course, is a much larger battle.

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