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

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This measure was not put on an election ballot

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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 fracking and new gas and oil exploration and extraction, was not put on the ballot for voters in Medina 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 and violated state law. 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.

If approved, this measure would have established Medina County as a charter county with more autonomy from the state than a county organized according to general law. The county charter enacted by the measure would have acted for the county as a constitution acts for a state. The bill of rights included in the charter was written to claim:

• the right of the city's residents to self governance
• the right to a clean, pure and safe environment, including protection from "chemical trespass"
• the right of natural communities and ecosystems to exist and flourish
• the right to a sustainable energy future

The initiative was specifically designed to claim local control over the oil and gas industry; prohibit fracking, new oil and gas drilling and the construction of any new oil or gas pipelines; ban the disposal of any wastewater or by-product of the fracking process within county boundaries and make the powers of initiative, referendum and recall explicit in county law.

Besides these changes, the form of the county government would not have been significantly altered by the charter, according to the petitioning group's spokesperson Kathie Jones. Jones said, “Under the charter, the current structure of Medina County government remains intact, county elected officials’ authority to protect residents from corporate harms is recognized, and the people’s right to initiative and referendum is codified."

Similar measures were proposed in several other cities and counties throughout Ohio in 2015.

Text of measure

Full text

The full text of the charter that would have been enacted by the approval of this measure is available here.

Support

Sustainable Medina County logo

Supporters

A group called Sustainable Medina County was behind this initiative.

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

A campaign called NO NEXUS Pipeline was also started to oppose the pipeline project that this initiative was partly designed to prevent.

Arguments in favor

A motivating factor for supporters of the initiatives in both Medina and Fulton counties was a proposed Nexus pipeline. Supporters saw the proposed charter as a method of providing residents with the power to stop the pipeline. Kathie Jones, a representative of Sustainable Medina County, said, “When Medina County residents first learned of this proposed pipeline in August of 2014, they were insistent that their health, safety and welfare, as well as the environment, should be protected, and that meant saying ‘no’ to the pipelines.”

Emilie Judy, a resident of Montville Township, said, “Community Rights is growing across the state as more and more communities realize that government agencies that are supposed to protect us, instead protect industries such as oil and gas. We have an inalienable right to protect the places where we live, and Medina County residents are working to codify that right in our county charter.”

Opposition

Arguments against

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. Opponents also argued that the initiative would have harmed the county's economy. Other critics questioned the legality of the initiative.

Speaking of the provisions of the charter asserting certain rights for the environment and the people, Jackie Stewart, writing for Energy In Depth, claimed, "These are not 'rights' as much as they are a free pass for anyone who seeks to impose frivolous lawsuits not only against the oil and gas industry but any industry."

Chris Ventura, Executive Director of the area's branch of the Consumer Energy Alliance (CEA), wrote an article arguing in opposition to this initiative. An excerpt of the article is below:

“	CELDF is a national anti-development organization that has now, unfortunately for the residents of Medina County, set its sights on our friends and neighbors by calling for a charter initiative to enact a Community Bill of Rights. The innocuous sounding Community Bill of Rights is anything but harmless. Instead, it is a direct attempt to suppress economic development and the modernization of infrastructure throughout the entire county by banning natural gas development. And, we have seen how this plays out in several communities. [...] This trail of lost court cases has cost municipalities – and the hardworking taxpayers who fund municipal budgets – hundreds of thousands of dollars in legal costs. [...] Yet the cost to communities, like those in Medina County, is not just limited to legal fees. The more substantial burden placed on communities is the suppression of economic development.	”
—Chris Ventura

Background

Nexus pipeline

Map of proposed route for Nexus pipeline

Nexus proposed a 250-mile, high-pressure gas pipeline extending from Kensington, Ohio, through Toledo, Ohio, and parts of Michigan to the storage hub in Dawn, Ontario. The plan for the pipeline includes a section through Medina County. Many opponents of the pipeline support this initiative, which would prohibit the construction of any new oil or gas pipes through Medina County.

Controversy over the pipeline intensified in Medina County when surveyors hired by Nexus tried to access private property along the planned path of the pipe. Several property owners prevented the surveyors from entering their land and insisted that a federal permit was necessary to survey their property against their will. The controversy resulted in a legal battle in Medina County court.

Nexus pipeline court case

Nexus lawyers sought a restraining order against several Medina County property owners in Medina County court. Judge Christopher Collier, however, refused to grant the restraining orders. A full trial on the issue was scheduled for September 24, 2015.

Lawyers representing Nexus argued that section 1723.01 and chapter 163 of the Ohio Revised Code (ORC) gave Nexus the right to enter private property to complete urgent surveys. The relevant portion of the ORC section cited by the Nexus lawyers says, "If a company is organized for the purpose of ... transporting natural or artificial gas... through tubing, pipes, or conduits ... then such company may enter upon any private land to examine or survey lines for its tubing, pipes, conduits, poles, and wires."

Similar restraining orders were granted to Nexus in at least nine other counties along the path of the proposed pipeline.

Recent news about the pipeline

This section links to a Google news search for the term "Nexus + pipeline"

Nexus pipeline News Feed

Oil and gas wells

See also Fracking in Ohio

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

The map on the right shows the active horizontal and directional wells in Medina County as of July 16, 2015. 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.

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

Sustainable Medina County needed 4,814 valid signatures by June 24, 2015, to put the proposed charter before county voters on November 3, 2015. This number was calculated from 10 percent of the votes most recently cast for governor in Medina County. On July 6, 2015, the Medina County Board of Elections confirmed that Sustainable Medina County members turned in 4,867 valid signatures—just 53 signatures above the minimum threshold—and certified the measure for the county's Fall election ballot.

Rejection by secretary of state

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. Athens County Home Rule Charter, Community Bill of Rights and Fracking Waste 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 "Medina + County + community + bill + of + rights + initiative"

Medina County community bill of rights initiative News Feed

See also

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

External links

Suggest a link

• Medina County Board of Elections website
• Sustainable Medina County website, Facebook page and Twitter account