Ohio Court Overturns Law Preventing Cities From Voting on Anti-Fracking Measures
By Simon Davis-Cohen November 1, 2017
The Thomas J. Moyer Ohio Judicial Center, Ohio State Office Building, is home to the Supreme Court of Ohio. Credit: Sixflashphoto, CC BY-SA 4.0
In a slight break with previous state policies that have encouraged fracking activity and new pipelines, the Ohio Supreme Court recently struck down a controversial provision restricting citizen efforts to vote locally on these and other issues through the ballot initiative process.
Getting Out (of) the Vote
The state Supreme Court ruling, which came on October 19, is a departure from earlier rulings that prevented residents* from placing county charters and a city ordinance to ban fracking from appearing on ballots. In 2015 the network had expanded beyond municipal ballot initiatives to include new county charters to elevate rights of local residents and ecosystems. Fossil fuel-friendly Ohio Secretary of State Jon Husted responded by claiming he possessed “unfettered authority” to remove the county charters from the ballot, regardless of whether they gathered enough signatures.
Central to Husted’s argument was an assertion that local residents do not have the power to vote on laws that challenge the state’s supremacy. Since 2015, Husted, Husted-appointed county boards of elections, and the Ohio Supreme Court have removed a total of 10 proposed fracking-related county charters from Ohio ballots.
To justify keeping the charters off the ballot, the Ohio Supreme Court developed a legal rationale that gave Husted and his boards of elections broad discretion to use what proved to be unpredictible technicalities to prevent all 10 from being voted on, despite petitioners gathering the needed signatures. However, that legal approach was not applied to municipal ballot initiatives, which continued to be proposed, voted on, and in some cases passed.
But at the end of 2016, HB463 passed in a lame duck legislative session and allowed unelected boards of elections to remove municipal initiatives from ballots as well. The bill also granted boards of elections similar unilateral power to strike proposed county charters, freeing them from having to rely on revolving technical arguments.
Apparently unfazed by the new law, this year local community groups* advanced county charters in Athens and Medina counties and ballot initiatives for the cities of Bowling Green and Youngstown. These efforts all included “Community Bills of Rights,” which would outlaw fracking, injection wells, and related infrastructure for producing and transporting natural gas in their respective counties and cities.
Bowling Green’s ballot initiative, which threatens to complicate the development of the nearby NEXUS natural gas pipeline, proposes an amendment to an existing city charter. Although the NEXUS pipeline is not slated to pass through the city itself, the ordinance would bar the pipeline from a piece of farmland owned by the city, which is key to the pipeline’s proposed route.
All of the ballot initiatives gathered the required number of signatures to get on the ballot. And all but Bowling Green’s initiative were opposed and removed by their boards of elections, whom Secretary Husted had appointed. However, Bowling Green’s board voted to allow the people to vote first.
Then came the legal challenges. After hearing appeals, the Ohio Supreme Court ruled against the two county charters and the Youngstown initiative. But in each of the rulings the court avoided weighing in on the constitutionality of HB463, instead relying on technical arguments to keep the initiatives off the ballot.
The Ballot’s in Your Court
But then the court ruled on the Bowling Green initiative.
Because Bowling Green’s board of elections ruled to allow a vote, in this case it was the board of elections — rather than citizen-petitioners — defending the local ballot process and arguing that HB463 was unconstitutional.
The issue was only brought to the state Supreme Court after a private individual appealed the board’s decision to allow voting to take place. (The challenge was defended by a law firm that last year wrote briefs for the American Petroleum Institute and Affiliated Construction Trades Ohio Foundation to defend the practice of keeping anti-fracking initiatives off local ballots.)
In a 4-3 decision, the Ohio Supreme Court struck down and ruled unconstitutional the section of HB463 that applied to municipal ballot initiatives, but not county charters. The ruling leaves unanswered how future proposed county charters will be treated. And because of how long the court took to make its decision, according to Terry Lodge, an attorney who represented the petitioners in all the cases, there is no time for Youngstown to use the ruling to return its previously removed initiative to this November’s ballot. That means Bowling Green’s “Citizens Right to a Healthy Environment and Livable Climate” initiative will be the only one in Ohio up for a vote in 2017.
Should it pass, as a similar effort did in the nearby City of Waterville last year, Nexus Gas Transmission, LLC may face yet another challenge from local communities as it attempts to build its pipeline across this stretch of northwestern Ohio.
Still, petitioners face an uphill battle from Bowling Green officials. “Our city [officials are] coming out so vehemently against [the ordinance],” local petitioner Lisa Kochheiser told DeSmog. Kochheiser also shared with DeSmog emails she obtained through a freedom of information request, showing Bowling Green’s mayor and law director knew about the proposed pipeline route — which passes within 700 feet of the Bowling Green regional drinking water treatment plant — two years before the public did. In addition, when the pipeline company filed a lawsuit to invoke eminent domain against individuals and local governments “holding out” access to their land in early October, Bowling Green’s law director quickly granted the company access to the disputed piece of farmland. Lodge wonders if the city “would even lift a finger to enforce [the ordinance]” if it passes.
The campaign is on in Bowling Green, but the numerous legal hoops that delayed the campaign until two and half weeks before the election means petitioners were “late coming out of the gate,” according to Kochheiser.
Update 11/2/17: This was corrected to clarify that local community groups, not the Ohio Community Rights Network, which works to support groups working on these issues, were advancing ballot initiatives.