The Ohio Supreme Court has upheld Secretary of State Jon Husted’s decision to remove from this November’s ballot measures by Medina, Fulton and Athens counties that would have banned hydraulic fracturing and related infrastructure projects.
However, in a separate ruling, the court allowed the city of Youngstown to proceed with an anti-fracking charter amendment and ordered it be placed on the Nov. 3 ballot.
Fracking opponents have questioned the state’s choice of outside counsel to help rule on the ballot issue.
Ohio is home to the Utica shale formation, which has attracted billions of dollars in investments by oil and gas fracking operations. Opposition to fracking accelerated in December 2011, after injection of wastewater into a disposal well near Youngstown triggered a 3.9 magnitude earthquake. Since then, several Ohio cities and counties have initiated efforts to keep fracking and related activities off of their land.
Husted removed the county ballot measures in August, claiming “unfettered authority” to do so, even though all three county initiatives had gathered enough signatures to qualify for the ballot. The Supreme Court did not agree with Husted’s argument that “there was nothing to materially limit the scope of his legal review of the petitions.”
Terry Lodge, a lawyer for the three counties, said the government’s (in this case, Husted’s) only role over regulation of initiative petitions is to verify that the signatures on the petitions were collected in the proper way, with the correct forms and wording, and methods of circulation. The Secretary of State’s role, he said was not to “indulge an inquiry into whether, if passed, something might be ruled illegal.”
But the court ruled against the initiatives on a technicality.
Because the initiatives would have also established “home rule” powers for the counties, according to Ohio law, they also needed to specify what form of government they would be establishing. (Home rule can be adopted via the initiative process by any type of Ohio municipality, including counties).
However, the court ruled that because “one must look to sources outside the [initiatives] to determine the form of government they purport to establish,” they don’t satisfy this test – and thus voters should not be allowed to vote on them.
Lodge said, “we don’t agree that the [initiatives] are in any way deficient.”
“It feels like there’s no democracy,” Kathie Jones, a petitioner for Medina County’s initiative said. “This is not just about oil and gas, it’s about our democratic rights.”
Some fracking opponents were upset not just by the court’s recent ruling, but also by Husted’s choice of outside counsel to represent the state in the ballot initiatives case.
When taken to court, state agencies or departments most often rely on the attorney general’s office for representation, but sometimes hire outside attorneys. In this case, Husted’s office hired Bricker & Eckler LLP, an Ohio-based private law firm to defend his August decision to reject the three county ballot initiatives.
Bricker & Eckler represents Spectra Energy, a Texas company trying to build a natural gas pipeline across Northern Ohio en route to exporting gas to Ontario and international markets. Two of the local initiatives – in Medina and Fulton counties – would have blocked the pipeline.
The Ohio Attorney General’s office would not comment on why Bricker & Eckler was brought on, only saying that “in some cases the Secretary of State may require outside counsel,” and that the Attorney General’s “relationship to the case is that we helped find outside counsel.”
However, public records requests by this reporter show that the Secretary of State’s office chose Bricker and Eckler.
Husted’s Press Secretary Joshua Eck wrote in an email: “it’s common for the Secretary of State to employ outside counsel in situations where a particular expertise or level of experience would be helpful in articulating the Secretary’s position.”
Bricker and Eckler would not comment on their level of experience with Ohio’s initiative process.
In Medina and other counties, Bricker & Eckler had threatened to sue residents who refused to allow Spectra land surveyors onto their land. And as the pipeline hasn’t received a certificate of approval from the Federal Energy Regulatory Commission, local county prosecutors to gave sheriffs permission to arrest Spectra surveyors for trespassing. This prompted Spectra to seek temporary restraining orders against property owners who don’t want surveyors on their land. A judge in Medina County on Oct. 6 ruled in favor of the Nexus pipeline surveyors.
All three ballot initiatives highlight the continuing questions in Ohio about when citizens have the right to petition for local self-government when they have exhausted efforts in appealing to state agencies.
All three of the proposed local laws aim to elevate citizens’ rights to local self-government above the legal rights of private corporations.
The initiative for Medina County said, “corporations and other business entities that violate rights secured by this Charter…shall not be deemed to be ‘persons’ to the extent that such treatment would interfere with the rights.”
Ohio’s a hotbed of conflicting views on citizen’s petitions
The tussle between Mahoning County and Youngstown over the city’s fracking ban initiative is another example of conflicting governmental and private views of citizen’s petitions, and the use of private law firms to represent public bodies.
Back in August, the Mahoning County Board of Elections had denied an anti-fracking charter amendment a spot on the Youngstown ballot, claiming that state law already grants the Ohio Department of Natural Resources sole responsibility for regulating oil and gas drilling in the state. The city of Youngstown challenged the decision, contending that the Board of Elections acted illegally by refusing to put the issue on the ballot.
Mahoning County Prosecutor Paul J. Gains refused to defend the Board of Election’s decision, which prompted the board to retain outside counsel. According to the Youngstown Vindicator, the lawyer cost county taxpayers $30,000.
The Board of Elections’ hired John Keller of Voyrs, Sater, Seymour and Pease LLP, the same lawyer that represented Beck Energy Corporation in a landmark 2013 Ohio Supreme Court case that reasserted the state’s preemption of local oil and gas zoning.
The same law firm represented Ball Energy, which wrote an amicus brief on behalf of the Ohio Oil and Gas Association and the Ohio Gas Association in defense of Husted’s decision to remove the three county initiatives.
The fight continues
Even though voters in Medina, Fulton and Athens counties won’t be voting on local fracking projects this fall, after the Supreme Court’s recent ruling, advocates claimed victory.
The Ohio Community Rights Network, an activist group that has supported fracking bans, issued a press release titled “Ohio Supreme Court Rules Against Secretary of State,” while Bricker & Eckler issued their own release titled “Ohio Supreme Court rules in favor of Secretary of State Husted.”
Citizens in Medina, Fulton and Athens have committed to qualifying similar initiatives for next year’s ballot.
Simon Davis-Cohen is a freelance journalist. He is reporting on issues affecting the citizens’ initiative process in partnership with The Investigative Fund at The Nation Institute. Follow him @SimonDavisCohen.
A version of this piece appeared on earthisland.org.