Protesters gather to protest during the State of the State address in Stubenville, Ohio, February 7, 2012. (Photo: Bill Baker)
More than 100 local Ohio officials, including mayors, county commissioners and city councilors, have issued a letter to Governor John Kasich petitioning him for the right to ban hydraulic fracturing (fracking) – or simply regulate drilling activities – within their own borders.
The letter, organized by Environment America, states:
Fracking … imposes particular burdens on local communities, from strained services to ruined roads. As with other extractive booms, the arrival and expansion of fracking operations has been correlated with a wide range of social problems, including increases in domestic violence, drug use, traffic accidents and civil disturbances. Other local impacts – such as water and soil contamination and reduced property values – are likely to persist long after the boom is gone, and we will be the ones left to pick up the pieces.
Local residents whose homes are adjacent to gas well sites live with nearly constant noise, light and air pollution, nonstop truck traffic and decreased property values. Local residents also face potential water and soil contamination, especially if well water is a resident’s primary water source.
The call to restore local control comes after the Ohio Supreme Court ruled earlier this year that the state expressly preempts cities’ and counties’ authority to regulate oil and gas drilling, effectively killing any Ohio municipality’s ability to ban fracking. Ohio courts have dealt multiple blows to “home rule” authority for Ohio communities. Most recently, a Cuyahoga County judge upheld an earlier decision last week to dismiss a fracking ban in the Cleveland suburb of Broadview Heights.
The Ohio Supreme Court’s 4-3 ruling in February struck down a Munroe Falls’ municipal zoning ordinance and four other local ordinances regulating oil and gas drilling, determining that the laws were not a proper use of the cities’ home rule powers. Now, local officials in Ohio say local control over drilling activities is more important than ever, especially to regulate wastewater injection wells, which the US Geological Survey has linked to earthquakes in Ohio and elsewhere.
During a press call, James O’Reilly, a city council member in Wyoming, Ohio, and a law professor at the University of Cincinnati, expressed concerns about hazardous chemicals with long half-lives, which he says the oil and gas industry let linger in the state’s environment long after fracking operations have concluded.
“What’s left behind really matters,” O’Reilly said. “As the gas drillers move on beyond Ohio into other states, we, the local officials, look at [citizens] and wonder, what are we going to do to protect our legacy? We can’t do it now under the way the law is, we need [local] authority given back to us.”
Ohio’s numerous court decisions striking down local ordinances that limit oil and gas operations are based on a 2004 state law giving exclusive authority to the Ohio Department of Natural Resources to regulate and permit oil and gas wells. The law was authored by then-State Senator Tom Niehaus, a New Richmond Republican who would go on to serve as Ohio’s Senate president. Sen. Niehaus amended that law in 2010 to preempt municipalities’ ability to regulate oil and gas waste, including how fracking waste is transported and disposed of.
According to the National Institution on Money in State Politics, Sen. Niehaus hasreceived $31,300 in total from the oil and gas industry in campaign contributions. His top donors included the Ohio Oil and Gas Association (OOGA). Moreover, The Columbus Dispatch reported that one year after he left office, Niehaus became a registered lobbyist for OOGA and BP America. He lobbied on legislation “relating to the operation of oil and gas interests and operations,” according to his registration. He also signed up to lobby the governor, attorney general and 17 executive-branch agencies on oil and gas interests.”
Ohio is not the only state which has passed legislation that limits cities’ abilities to govern drilling practices. Laws preempting cities’ power to regulate fracking have also passed in Texas and Oklahoma, while a similar oil and gas preemption bill has also advanced in the Florida legislature this year. The Oklahoma law passed even as the state admitted that its 600-fold increase in earthquakes was conclusively linked to oil and gas wastewater injection wells.
Such preemption bills are part of a wider strategy backed by the American Legislative Exchange Council (ALEC), a corporate “bill mill” that drafts model legislation. ALEC’s strategy, which surfaces mostly in Republican-dominated state legislatures, is aimed at curbing municipalities’ regulatory authority at the behest of industry, including cities’ ability to pass local ordinances and citizen-led ballot referendums.
Eleven GOP-controlled states have preempted municipalities from passing paid sick day legislation. Another 15 states have preempted cities’ ability to raise the minimum wage, with about half of those states passing such laws since 2010. Other preemption laws have barred cities from regulating landlords and passing antidiscrimination laws that would protect LGBT people.
Industries including oil and gas, and restaurant interests are working with state lawmakers through ALEC, whose “model” legislation advances the interests of its corporate members throughout state legislatures. A coauthor of the Texas law, which bans fracking bans, Rep. Phil King, is serving as ALEC’s national chair this year. He received $41,501 in contributions from the oil and gas industry in the 2014 election cycle. While King has denied that his role in ALEC had anything to do with Texas’ preemption law, ALEC’s website offers model legislation giving state regulators the exclusive authority to regulate fracking.
Former Ohio Senator Niehaus, who was the primary sponsor of Ohio’s 2004 oil and gas preemption law, and who amended that same law in 2010, also has connections to ALEC. He was a member of ALEC’s Energy, Environment and Agriculture task force throughout the time he served as an Ohio senator, including in 2010. He also cosponsored a separate ALEC-model fracking disclosure loophole bill.
Wyoming City Councilor O’Reilly says he was startled in the fall of 2011 when an official with Ohio’s Department of Natural Resources approached the Ohio, Kentucky and Indiana Regional Council of Governments (on which he serves) about industry requests for shipments of liquefied natural gas waste via railcars to southwest Ohio for disposal in wastewater injection wells, which he knew his constituents would be against. That’s when he learned that the local governing body was powerless in the matter, due to the 2010 Niehaus amendment.
O’Reilly offered a number of suggestions for other local officials across the state to curtail urban fracking operations that harm their constituents, including increased use of cities’ municipal zoning powers. He cited a Cincinnati ordinance passed under the city’s zoning powers that bars any new wastewater injection wells in city limits. O’Reilly believes the ordinance will be upheld because it doesn’t include the words “oil” or “gas,” and therefore the ordinance can’t be said to be regulating “oil and gas” operations.
He also suggested local officials set lower weight limits on local and county roads and bridges to prevent infrastructure degradation by the massive trucks that haul fracking equipment, water and waste. O’Reilly also recommended officials set noise curfews and ask regional air quality agencies to tighten their air emissions standards for hydrocarbon releases. Lastly, O’Reilly suggested that local officials invite area asthma sufferers, when they meet with state legislators, to communicate the human impacts caused by fracking’s worsening of air emissions quality.
Deborah Cowden, who works as a Knox Valley Health Department clinic physician in Ohio, pointed out that many studies purporting to show that prolonged exposure to fracking emissions poses minimal public health risks are misleading. She said this kind of research is based on prior occupational studies in which workers (adult men) are exposed to a certain chemical for a given length of time. She says this kind of research leads to an underestimation of the effects of prolonged exposure for populations of women and children.
“If a family lives adjacent to a well pad, they’re exposed for 24 hours a day, seven days a week. Only if they leave do they get a break to breathe pure air,” Cowden said.
Prolonged exposure to fracking emissions is among the reasons why local officials in Ohio are now banding together to push for a return of their ability to protect the health and safety of their constituents. “Fracking brings local harm, so it should be subject to local control,” said Sarah Frost, who is outreach director with Environment America.
“We need a repeal and a change of the Niehaus law of 2010 to give us back the authority to protect our public,” O’Reilly said.