Julia Fuhrman Davis, who lives in the same area south of town, considers the drilling — known as hydraulic fracturing or fracking — to be a threat, and she’s angry that there is little citizens can do.
Their concerns are twofold: The rich discoveries of oil and gas in eastern Ohio have brought a surge in drilling, but eight years ago, the Ohio legislature and former Gov. Bob Taft stripped local governments of control.
The Ohio Department of Natural Resources is now in charge.
The two activists are involved in grass-roots campaigns to give communities more weapons to fight the spread of horizontal boring in the Utica shale formation, and injection wells, which are used for disposal of the polluted water that comes from oil and gas exploration.
They are pushing what’s called limited home rule in Ohio townships and a community bill of rights in cities and villages, both aimed at increased protection for air, water, health, property values and public safety.
Limited home rule already is an option for townships. The community bill of rights could be adopted in cities and villages as resolutions or charter amendments. Such provisions say state laws allowing drilling violate the civil rights of local residents and threaten their health and safety. Supporters say the new efforts give local communities power over state laws.
However, state officials believe otherwise. Under Ohio law, drilling cannot be banned or blocked by local communities.
“We have the sole authority under Ohio law for regulating aspects of the oil and gas industry in Ohio,” said agency spokeswoman Heidi Hetzel-Evans. “That, we feel, is clear.”
‘It’s David versus Goliath’
“We can’t ban fracking, and we know that,” said Fuhrman Davis. “But with limited home rule, we can adopt local rules on hours of operation, noise limits, truck traffic and routes, local nuisance rules, fences and sign rules for drillers, waste shipments. … We can use those rules to fight back a little bit, to give us more control. It’s David versus Goliath. But it’s a way to fight drilling.”
She said it’s not a fracking problem; it’s a democracy problem.
“Citizens are losing rights and this is just another example. … Home rule would help us regain that voice,” she said.
Anti-fracking efforts are growing in Ohio, Pennsylvania and New York as interest in shale drilling grows.
Locally, limited home rule will appear on the Nov. 6 ballot in Portage County’s Randolph Township.
After the township rejected a proposed community bill of rights, a group led by Sandra and Newt Engle decided to place the issue of home rule on the ballot. They needed 209 signatures and collected 271.
Will home rule provide the air-and-water protection they seek?
“I hope so. But I really don’t know,” Newt Engle said. “No one does. That truly is the great unknown.”
If approved by voters, extended home rule would begin Jan. 1. And there would be challenges. Regulations must apply to all, not just drillers.
And there is a financial cost to taking on home rule, according to township trustee Roger Klodt.
Establishing a police department and hiring a part-time law director could cost as much as $500,000, and that would require a tax levy of as much as 5 mills, Klodt said.
Gorcheff and Fuhrman Davis have hit a legal snag in their efforts to get expanded home rule in their community, Beaver Township, on the Nov. 6 ballot.
The two women circulated petitions and got 369 signatures, more than the 296 required. However, on July 27, their petitions were rejected by the township, which said the wrong forms were used.
Akron attorney Warner Mendenhall has taken their case to the Ohio Supreme Court, asking that trustees be ordered to place the issue before voters.
The high court has not yet ruled, leaving the home-rule issue in Beaver Township in legal limbo.
Limited home rule is in place in 48 urban Ohio townships, including Springfield in Summit County and Lake, Jackson, Plain and Perry in Stark County.
Drilling in Medina County has led to serious discussions about limited home rule there, but nothing is likely to appear on the ballot this year, said spokeswoman Sandra Bilek of the Concerned Citizens of Medina County.
She also is involved in a new grass-roots campaign to convince Gov. John Kasich and legislative leaders to return control of drilling to municipalities. Nonbinding resolutions seeking that change are being submitted to local governments and petitions will be circulated, she said.
Bill of rights
Others are trying a different approach: pioneering community bills of rights that acknowledge the rights of the citizens over the government.
Some communities are targeting gas wells, some injection wells, and some target both.
Cincinnati City Council has voted to ban injection wells. The village of Yellow Springs near Dayton is adopting a resolution against gas and injection wells.
Mansfield will vote on Nov. 6 to amend its charter to block injection wells. Athens, in southeastern Ohio, prohibits drilling in protected areas around drinking-water wells.
On Tuesday, the Broadview Heights City Council approved a city charter amendment prohibiting future drilling as part of a community bill of rights. If approved by voters Nov. 6, the initiative would also state that city residents have a right to clean air, clean water, clean soil and a sustainable energy future.
Behind the initiative was Mothers Against Drilling in our Neighborhoods, which collected 1,519 valid signatures on petitions, meeting requirements in the city charter and Ohio law. There are more than 90 active wells in the Cleveland suburb.
Water agencies in Montgomery and Hamilton counties — Dayton and Cincinnati, respectively — are fighting injection wells for fear they will threaten drinking water.
An additional 29 Ohio municipalities have called for drilling bans and moratoriums. They include North Canton, Munroe Falls, Canton, Garrettsville, Hartville, Meyers Lake and Canal Fulton and the following townships: Hinckley, Medina, Montville, Plain, York and Randolph, according to Food and Water Watch, a national environmental group concerned about fracking.
Nonprofit leads effort
Behind many of the local efforts, including the one in Broadview Heights, is the Community Environmental Legal Defense Fund, a nonprofit based in Mercersburg, Pa.
Its pro-democracy campaign was first used in Ohio years ago in an unsuccessful effort to wrest control of factory farms from the Ohio Department of Agriculture and give communities more leverage.
To date, more than 100 communities, mostly in Pennsylvania, have pushed for increased local control with laws drafted by the defense fund, said group spokesman Ben Price.
He worked with Pittsburgh in late 2010 on banning fracking within the city. More recently, he made a presentation to Youngstown City Council in support of a community bill of rights.
“It’s not a movement yet,” he said in a telephone interview. “What’s happening is small, but it’s growing. … We’re attempting to assist communities to establish the greatest degree of local control and self-government possible.”
When laws don’t serve the people, you change the laws, he said.
The bills of rights recognize that local residents “have certain rights and that to protect those rights they have the democratic authority to prohibit activities that would violate these rights,” he said. “Our basic premise is that those rights are yours, and for the state to remove local control is a violation of those rights.”
Industry opposition
The industry is strongly against the citizen efforts.
“The activist organizations furthering these efforts are taking cues from out-of-state organizations that oppose the responsible development of fossil fuels at every turn,” said Dan Alfaro of the pro-drilling, industry-backed group Energy in Depth-Ohio.
“More often than not, these organizations ignore the fact that the region has a long history of development — development that utilized the six-decade-old practice of the hydraulic fracturing process they have focused efforts on. More and more Ohioans are witnessing the positive benefits we are already seeing in this early stage in the exploration of the Utica shale and have educated themselves on the time-tested practices and processes involved in oil and natural gas extraction.”
Critics of the citizen movement point out that landowners who want to drill may have their rights taken away.
Until 2004, Ohio municipalities had the right to control where — and whether — oil and gas wells could be drilled in their communities through zoning and outright bans.
But with passage of House Bill 278, the Division of Oil and Gas Resources Management in the Department of Natural Resources became the sole authority over oil and gas wells.
To date, there have been no legal challenges to local attempts to control the drilling.
Ohio Attorney General Mike DeWine’s office can’t comment on such scenarios, said spokesman Dan Tierney. His office would be responsible for advising and defending Natural Resources and therefore is in a position of attorney-client privilege.
Even the citizen groups are uncertain whether more home rule will stop or slow drilling.
“If hundreds of local communities adopted home rule, it would be wonderful and amazing and might make a difference,” said anti-fracking activist Teresa Mills of Columbus. But she said she fears that it would take years to win such widespread support and that drilling by then will be firmly entrenched in eastern Ohio.
She said there appears to be little interest in the legislature to rethink the local-control issue.
Julia Furhman Davis talks about the efforts of she and friend Patti Gorcheff
having home rule established in Beaver Township. (Karen Schiely /Akron Beacon Journal)
“Fracking is waking people up that we don’t have home rule or control over what is happening locally. It is an issue of trying to protect democracy or fixing the lack of democracy,” she said.
Yellow Springs will be the first Ohio community to ban fracking and injection wells through rights-based legislation, although it’s not in the target zone for oil and gas.
The proposal, pushed by a grass-roots group, Gas and Oil Drilling Awareness and Education, was introduced on Aug. 6 and is expected to get a final vote on Sept. 17.
The proposed ordinance would ban oil and gas extraction or injection wells in Yellow Springs on the premise that they violate the civil rights and threaten the health and safety of residents.
“It’s something we believe in and we’re convinced that this is the right way to go,” said Vickie Hennessy, a spokeswoman for the grass-roots group. “This one stood out and we feel that it might really work. This is the only clear way to go.”
However, Village Solicitor John Chambers told local media that the ordinance may not be enforceable and could face a court challenge.
The Community Environmental Legal Defense Fund says Yellow Springs will join 12 communities in Pennsylvania and New York in approving the rights-based legislation, but there have been no attempts at enforcement, so there have been no court challenges.
Hennessy acknowledged that oil and gas exploration in Yellow Springs isn’t likely, but the underground geology could open the community to injection wells.
Voters in Mansfield will be asked to approve a city charter amendment that would block two proposed injection wells in Richland County.
The change, drafted by Law Director John Spon, would add a community bill of rights to the charter and prohibit the injection of fracking waste on the grounds that the policy is necessary to secure and protect citizens’ rights.
The charter change also recognizes that corporate rights are subordinate to the rights of the people of Mansfield, as well as recognizing the rights of residents, natural communities and ecosystems to clean air and water.
A Texas-based company, Preferred Fluids Management, has state approval to drill two 5,000-foot-deep wells in Mans-field. The company intends to take briny wastes from Pennsylvania via rail.
In Mahoning County, Gorcheff and Fuhrman Davis are not giving up.
“Quitting is not an option,” Gorcheff said. “We’ve worked too hard. This is just such a monster to fight. We’re digging in.”
Said Fuhrman Davis: “We live here. We should decide what happens here.”
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