Athens County Home Rule Charter, Community Bill of Rights and Fracking Waste Prohibition Initiative (November 2015)

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A home rule charter proposal, including a bill of rights asserting local control over the oil and gas industry and a ban on the disposal of fracking waste, was not put on the ballot for voters in Athens County, Ohio, on November 3, 2015. Although a sufficient signature petition was submitted, Ohio Secretary of State Jon Husted (R) ruled that the content of the charter was invalid because it violated state law and did not provide an alternate form of county government. Petitioners filed a lawsuit against Husted in Ohio Supreme Court. The court ruled that Husted had no authority to decide the legality of the initiative's content but upheld his decision to keep the initiative off the ballot based on the lack of an alternative form of government.

On July 2, 2015, the county board of elections found more than enough valid signatures among those submitted, but voted to reject the initiative anyway. Proponents decided to appeal the decision in Athens County Common Pleas Court. On July 15, 2015, Judge George McCarthy overruled the decision made by the board of elections and ordered that the initiative must be put on the ballot.

If approved, this measure would establish Athens County as a charter county with more autonomy from the state than a county organized according to general law. Specifically, the county charter enacted by the measure, which would act for the county as a constitution acts for a state, would claim local control over the oil and gas industry and prohibit the disposal of any wastewater or by-product of the fracking process within county boundaries.

The charter would make it illegal to “deposit, store, treat, inject, dispose of, or process wastewater, produced water, ‘frack’ water, brine or other substances, chemicals or by-products that have been used in, or result from, the extraction of shale gas and oil by high-volume horizontal hydraulic fracturing, on or into the land, air or waters of Athens County.” The charter would not prohibit the disposal of wastewater produced inside the county boundaries by conventional drilling methods. The initiative was also designed to prohibit any water in the county from being sold to corporations in the oil and gas industry.

According to proponents, the proposed charter amendment would only change one other significant aspect of county government by codifying the power of initiative, referendum and recall in the county charter. John Howell, a supporter of the initiative, said, “The proposed charter does not change any other aspect of county government function. It seeks only to claim these rights and protect the county’s water supplies."

Similar efforts were initiated in Medina County and Meigs County. The proposed charter initiative in Medina County was certified for the ballot on July 6, 2015.

Support

Supporters

The group behind last year's anti-fracking initiative in the city of Athens, called the Athens Bill of Rights Committee (BORC), was also behind this initiative, changing its name to the Athens County Bill of Rights Committee.

The Community Environmental Legal Defense Fund (CELDF) also supported this effort and the similar efforts in other Ohio cities and counties.

Arguments in favor

Dick McGinn, chairman of the committee, said, “By this charter we, the people, propose to secure the right of all county residents to live in a clean and safe environment, and to participate in county government. These rights are presently denied to most citizens under the statutory form of county and township government.”

A press release from the proponent group stated, “We declare our right to refuse to live under state law HB 278, which denies our constitutional right to self-government, and instead, renders unto the Ohio Division of Natural Resources sole authority over the siting, permitting and regulation of oil and gas development and wastewater disposal in the state.”

John Howell, a member of BORC, said, “These are rights of local democracy to protect us from government at the state and federal levels gone awry under the influence of corporate interests."

Opposition

Opponents argued that the issue of fracking, and the oil and gas industry in general, should be regulated at the state level. Moreover, critics claimed the initiative proposed is unenforceable, vague and opens the door to exorbitant county costs at best and an abundance of frivolous lawsuits at worst. Other critics questioned the legality of the initiative.

Speaking of the provisions of the charter allowing wastewater disposal from conventional oil and gas extraction, but not from horizontal wells or wells utilizing fracking, Jackie Stewart, writing for Energy In Depth, claimed, "So let’s get this straight: unconventional or high-volume horizontal wastewater is not ok, but conventional shallow vertical wastewater is? How is this even enforceable and who would enforce it? Currently the U.S. EPA regulates this process under the Class II Underground Injection Control Program. The agency granted Ohio primacy over these wells in 1983, and to date Ohio’s regulations are, in fact, more stringent than the federal regulatory requirements." Stewart also criticized the charter's provision preventing any water in the county from being sold to an oil or gas company, saying it could harm the economies of cities or towns within the county.

Background

See also Fracking in Ohio

According to information provided by BORC member Andrea Reik, Athens County had 699,221 barrels of waste materials injected into wells in 2013. That number nearly quadrupled to 2,743,007 barrels in 2014, of which 2,387,100 barrels came from outside of the state of Ohio. She said the proposed K&H 3 injection well near Torch would add an additional 4,380,000 barrels into the county annually.

An example of a Class II injection well

Injection wells have been used since at least 300 A.D. by the Chinese for the extraction of salt under the earth's surface. The widespread use of injection wells to dispose of waste from the extraction of oil and natural gas occurred in the 1930s in Texas. In 1974 Congress passed the Safe Drinking Water Act, which gave the U.S. Environmental Protection Agency (EPA) the authority to regulate underground injection wells.

Injection wells—located thousands of feet underground and encased in cement—typically house salty or polluted water, otherwise known as wastewater. Injection wells, which are also known as Class II injection wells, are generally considered the safest and most cost-effective place for wastewater to be stored. According to the USGS, "of more than 150,000 Class II injection wells in the United States, roughly 40,000 are waste fluid disposal wells for oil and gas operations."

The terms wastewater, produced water and flowback are often used interchangeably, but they are not referring to the same types of water. The contaminated water that is stored in injection wells is called wastewater, and includes both produced water and flowback. Produced water is the salt water (brine) that has been under the earth for millions of years and is released when extracting oil or natural gas. Flowback is the water that was used when extracting oil or natural gas that returns to the earth's surface. According to Energy in Depth, most of the wastewater that is produced during the fracking process is produced water.

In Ohio, injection wells are regulated by the Division of Oil and Gas Resources in the Ohio Department of Natural Resources. Since 2010, there have been several changes to Ohio laws that, according to state leaders, have established some of the toughest oil and gas regulations in the nation. The law most applicable to injection wells was passed by the Ohio State Legislature in 2012. SB 165 enhanced permitting authority and increased the cost of an injection well permit from $100 to $1,000. This bill also instituted new fees for each barrel of fluid being injected in the state; these fees range from $0.05 to $0.20 per barrel.

The maps below show injection wells in Ohio as of July 6, 2015, on the left and the active horizontal and directional wells—including both production and injection wells—in Athens County as of July 16, 2015, on the right. In the map of Athens County on the right, the blue dots mark where a well has been permitted but not yet drilled. Dark pink indicates active injection is happening at that well. Yellow signifies a well that is being drilled. Green indicates that a well is producing. Light pink denotes that the well is plugged. Salmon means that the well is inactive. Orange means the well is dry and abandoned.

A map of Class II injection wells in Ohio as of July 6, 2015

Map of oil and natural gas wells in Athens County, Ohio, as of July 16, 2015

The first oil well was drilled in Ohio in 1895, and production has been occurring ever since. Just over 75 percent of counties in Ohio have commercial oil and gas resources, although production is concentrated in the eastern half of the state. From 1895 to 2009, Ohio produced more than 1 billion barrels of oil and 9 trillion cubic feet of natural gas. A study released in July 2014 estimated that the Utica shale, located under Eastern Ohio, could hold 2 billion barrels of oil and 782 trillion cubic feet of natural gas. These estimates far surpassed previous projections of the amounts of oil and natural gas in that area. Fracking began in Ohio in 1952, and, from then until 2009, fracking has been used to extract oil and gas from 80,306 wells.

Oil and gas drilling is regulated by the oil and gas resources division of the Ohio Department of Natural Resources (ODNR). The division is responsible for regulating oil and gas operations, drilling, underground injection and brine disposal. The ODNR Division of Oil and Gas Resources is also responsible for inspecting the drilling, plugging and restoration of wells and well sites. On June 11, 2012, Governor John Kasich (R) signed Senate Bill 315, creating new regulations applying to fracking. This bill created a chemical disclosure requirement, set up rules for chemical sharing among doctors, required water sampling, created daily fines of up to $20,000 for noncompliance and increased operator liability for horizontal wells.

Ohio Supreme Court ruling

In February 2015, the Ohio Supreme Court ruled that local zoning laws couldn't be used to prohibit fracking or otherwise "circumvent the state's authority over oil and gas drilling." The lawsuit was brought by the city of Munroe Falls after Beck Energy Corp. was granted a permit by the Ohio Department of Natural Resources to drill for oil in a traditional oil well in 2011. The city sued, arguing that the permit violated local zoning ordinances.

Central to this court case was whether the home-rule power that the Ohio State Legislature delegated to local governments could be used to regulate oil and natural gas activities if local regulations conflicted with state policy. Home rule is the ability for counties, municipalities, towns, townships and villages to regulate certain activities within their jurisdiction. Because state governments were often overwhelmed with legislation that localities wanted passed, some state legislatures started proposing home-rule laws in the 1900s that granted some local governments the ability to regulate certain activities. According to the National League of Cities, home-rule power "is limited to specific fields, and subject to constant judicial interpretation, but home rule creates local autonomy and limits the degree of state interference in local affairs." Across the country, there has been conflict between state and local governments over which level of government should regulate oil and natural gas activity. Ohio is just one state where this fight has gone to the courts.

Path to the ballot

See also: Laws governing local ballot measures in Ohio

According to the Athens County Bill of Rights Committee, it needed 1,441 valid signatures by June 24, 2015, to put the proposed charter on the election ballot on November 3, 2015. This requirement was calculated from 10 percent of the votes most recently cast for governor in Athens County. The group hoped to collect 2,000 signatures by the deadline. On June 24, 2015, petitioners submitted 2,111 signatures. Enough signatures were valid to qualify the initiative for the ballot. The board of elections rejected the initiative despite the sufficient petition. When petitioners appealed the decision, the county common pleas court overruled the board's decision and ordered that the initiative must be put on the ballot. Details concerning the board's decision, the appeal and the final ruling are below.

Rejection by board of elections

On July 2, 2015, the county board of elections announced that it had found more than enough valid signatures among those submitted to qualify this initiative for the ballot, but the board voted to reject the initiative anyway, stating, "Upon review and in consultation with the Athens County prosecutor we find that the petition is not a valid charter as it does not structurally change the form of government in Athens County as it purported. Because the petition does not create a valid charter form of government we find that the petition is not valid.”

The Athens County Board of Elections voted against putting the measure on the ballot despite a letter from the county prosecutor, Keller Blackburn, which stated, “It is my opinion that, while the proposed charter does not structurally change the form of government in Athens County as was done with charter governments in Cuyahoga County and Summit County, the board should approve the proposed charter to the ballot unless an opinion from the Attorney General confirms that the proposal is not a charter... When the exercise of the initiative process is begun, the power of the people to use the democratic process should not be infringed without clear guidance that the action is prohibited by law.” A request for an opinion on the proposal was sent to the office of the attorney general, but representatives of the office said an official opinion would not be ready for some time.

Dick McGinn, chairman of the committee of proponents in Athens County, said, "It’s a setback for us, but not necessarily definitive. I think they made a big mistake. We’ll see what happens. It’s a bump in the road, but I don’t see it as an obstruction.”

Common Please Court Judge George McCarthy

Appeal of board's decision

After the board of elections rejected the charter petition, proponents decided to appeal the decision. Attorney Terry Lodge, representing the Athens County Bill of Rights Committee, requested that the board of elections submit the records of its meeting and its decision to the Athens County Common Pleas Court. Lodge wrote, “We believe that the (election) board’s conclusion that the petition ‘does not structurally change the form of government in Athens County as it is purported’ is not supported by law and is arbitrary. We intend to intervene and provide evidence and legal authority in support of the validity of the petition.”

Rejection overruled

Supporters of the initiative appealed the board of elections' decision. On July 15, 2015, Judge George McCarthy overruled the decision made by the board of elections and ordered that the initiative must be put on the ballot. Judge McCarthy did not rule on the content of the initiative, but only said that it should go before voters. In his decision, McCarthy said, “The court is not here to say whether it (the charter) is good or bad. The court after careful consideration... feels the matter should go on the ballot."

Dick McGinn, a member of the committee behind the initiative, responded to Judge McCarthy's ruling by saying, “The people of Athens have an inalienable right to vote on our own measure, which is being advanced to codify our right to clean air, [sic] water, and our right to local self-government. This is democracy in action.”

Tish O’Dell, a community organizer for CELDF in Ohio, stated, “If the four people composing the Board of Elections were deemed to have the authority to say which initiatives are valid and constitutional and which are not, the people of Athens would be living under an oligarchy, not a democracy. The people have a right to initiative, and are exercising that right.”

Rejection by secretary of state

On July 29, 2015, local resident Joanne Prisley and an attorney named Michael M. Hollingsworth filed a protest against the charter petition, saying that bill of rights provisions in the proposed charter were inappropriate. This brought the petition before the secretary of state for a decision.

Terry J. Lodge and James Kinsman, attorney's representing charter proponents, argued that the protest violated a "long-affirmed Ohio law that the propriety of the substance of a proposed charter is off limits in determining its validity or invalidity for certification to the ballot."

On August 13, 2015, Ohio Secretary of State Jon Husted (R) ruled that the similar charter initiatives in Athens County, Fulton County and Medina County could not go on the ballot. Husted stated that the charters did not establish an alternative form of government as they purported to do and contained provisions that conflicted with state law. He also said, “The issue of whether local communities can get around state laws on fracking has already been litigated. Allowing these proposals to proceed will only serve a false promise that wastes taxpayers' time and money, and will eventually end in sending the charters to certain death in the courts.”

In his official statement to the Athens County Board of Elections, Husted wrote, “Having carefully reviewed the law, court decisions and the materials submitted in connection with the protests, I find that the… petitions violate… provisions of statutory and Ohio constitutional law." Proponents of the initiatives contested the decision in court.

Ohio Supreme Court lawsuit

Representatives of the initiatives in Athens, Fulton and Medina counties sued Husted in Ohio Supreme Court. The suit was filed on August 19, 2015. Since the case involved initiatives proposed for the election on November 3, 2015, an expedited decision was expected from the court by September 15, 2015. September 19, 2015, was the last day the court could rule in favor of the charter initiatives soon enough to allow them onto the November 2015 ballot.

James Kinsman, an attorney representing the petitioners, argued, “It is the people’s constitutional right to vote on our own initiatives. The peoples’ right to initiative is being trounced upon by our own elected Secretary of State, who was clearly moved by the arguments of the oil and gas industry — perhaps their funding as well — yet not by the very people who elected him. Mr. Husted, elected to serve the people of Ohio, is instead serving the oil and gas industry.”

Supreme court ruling

On September 16, 2015, the state supreme court voted 6-1 to back up Husted's decision and confirmed that the initiatives proposed in Athens, Fulton and Medina counties would not go before voters on November 3, 2015. The decision was made not based on Husted's claims concerning the illegality of the content of the initiatives. In fact, the supreme court explicitly denounced the authority of the secretary of state to make judgements concerning the legality of a citizen initiative. Rather, the court ruled based on Husted's second reason for rejecting the initiatives: a lack of an alternate form of government in the proposed county charters. The majority decision stated, "the authority to determine whether a ballot measure falls within the scope of the constitutional power of referendum (or initiative) does not permit election officials to sit as arbiters of the legality or constitutionality of a ballot measure's substantive terms. ... An unconstitutional proposal may still be a proper item for referendum or initiative. If passed, the measure becomes void and unenforceable only when declared unconstitutional by a court of competent jurisdiction. Until then, the people’s power of referendum remains paramount.” The court ruling called Husted's position concerning invalidating the initiatives based on their content “not reasonable” and said it “would lead to absurd results.” The majority opinion argued, “Husted’s interpretation of [state law] would permit him to disqualify ballot initiatives before they are submitted to the electorate based on his legal opinion of their constitutionality."

Response from Husted

Husted responded to the decision by saying, “As I have stated previously, this course of action is not the appropriate path to seek change on this issue. If advocates of these local proposals truly want to effect change, they should use the legislative process available to them and either work with their representatives in the Ohio General Assembly or propose a statewide initiated statute.”

Response from initiative proponents

Terry Lodge of Toledo, one of the attorneys representing initiative proponents, “We won by losing. Far and away the more important precept that had to be upheld was that the secretary of state doesn’t get to unilaterally force his interpretation when there’s 100 years of Supreme Court precedent saying he can’t veto putting something on ballot because of the subject matter.”

Dick McGinn, a petitioner for the charter initiative in Athens County, thought the court overreached and went against Ohio law. He said, "(The Supreme Court is) essentially creating a new requirement for charters that you have to have an executive function. These are a bunch of lawyers, so how do you tell them that they’re wrong? It really is not very fair to us. But if they made up a new (law) what choice do we have now?”

Related measures

2015

1. Medina County Home Rule Charter, Community Bill of Rights and Fracking Prohibition Initiative (November 2015) 
2. Meigs County Home Rule Charter, Community Bill of Rights and Fracking Prohibition Initiative (November 2015) 
3. City of Youngstown "Community Bill of Rights" and Fracking Ban Initiative Charter Amendment (November 2015) d
4. Fulton County Home Rule Charter, Community Bill of Rights and Fracking Prohibition Initiative (November 2015) 
5. Portage County Home Rule Charter, Community Bill of Rights and Fracking Waste Prohibition Initiative (November 2015) 

Past measures

1. Youngstown "Community Bill of Rights" Fracking Ban Charter Amendment (May 2014) d
2. City of Athens Fracking Ban Initiative, Issue 7 (November 2014) a
3. City of Niles "Community Bill of Rights" Fracking Ban Initiative (November 2014) 
4. Village of Gates Mills "Community Bill of Rights" Fracking Ban, Issue 51 (November 2014) d
5. Youngstown "Community Bill of Rights" Frack Ban, Issue 4 (November 2014) d
6. City of Kent "Community Bill of Rights" Fracking Ban Initiative, Issue 21 (November 2014) d
7. City of Columbus Community Bill of Rights Fracking Ban Initiative Charter Amendment (November 2016) 
8. Athens County, Ohio, Oil and Gas Restrictions and Home Rule Charter Initiative (November 2017) 

Recent news

This section links to a Google news search for the term "Athens + County + home + rule + charter + initiative"

Athens County home rule charter initiative News Feed

See also

• Fracking in Ohio
• Energy policy in Ohio
• Home rule
• Chartered local government
• Local fracking on the ballot
• Local environment on the ballot
• County governance on the ballot
• Athens County, Ohio ballot measures
• November 3, 2015 ballot measures in Ohio

External links

Suggest a link

• Athens County Board of Elections website
• Athens Bill Of Rights Committee blog