No Associated Press content was harmed in the writing of this post
The fight against fracking in Ohio comes at a time when the state is approving new wells at a rapid pace. Local activists are organizing in an environment where the ground is constantly shifting under their feet – sometimes literally.
Anti-fracking activism has been influenced by developments both inside the state and beyond. At a recent public anti-fracking meeting a representative from the Community Environmental Legal Defense Fund (CELDF) described the experience of activists in western Pennsylvania several years ago.
Residents there began seeing lots of drilling sites, processing plants and other fracking infrastructure pop up. Neighborhood opposition responded through the regulatory process. Drillers needed permits, so locals educated themselves on permit writing. They enjoyed some early victories as improperly written permits were thrown out.
The wins were only temporary though. Drillers came back weeks or months later with rewritten permits that fixed the problems in the earlier ones. The new permits passed regulatory muster and the frackers moved in. At one point counsel for the companies jokingly thanked a CELDF representative for its help in putting together a bulletproof permit-writing process. As you might imagine, this was not the intended outcome.
The regulatory process may not be a suitable one for anti-fracking activists for other reasons as well. For one, regulations are not ultimately about protecting citizens; they are about legalizing harm. Regulation on, say, arsenic in drinking water is not based on the maximum amount that humans may safely consume, but on the maximum amount the industry can get legislators to allow. If they allow an amount that is unhealthy for humans or animals, those who suffer as a result have no legal recourse. The harm was permitted.
If you do not want the fracking to occur at all – if you think it is too unregulated, too opaque, and generally too hazardous – then fighting over regulation is a sucker’s game. You are not fighting over whether or not your community will expose itself to the tender mercies of the oil and gas industry, but over how much damage the industry will be allowed to do to it; and since the oil and gas industry is flooding the statehouse with lobbyists how do you think that fight will go?
Which leads to the second problem with the regulatory process: it happens at the state level, where ordinary residents have precious little access. Aside from both the specific issue of fracking and the perennial issue of the will of the majority being frustrated by the powerful, wealthy and privileged, there are dynamics at play in Columbus that tilt the playing field against local communities.
The successful effort to implement term limits back in the 90s has born its expected fruit: Legislators do not have the opportunity to build up a store of knowledge and experience on how the legislative process works. Lobbyists, under no such constraint, can learn the system inside and out, and bring that to bear. (Incidentally, the inability of legislators to thoroughly learn how the machine works also – surprise! – creates demand for legislative chop shops like ALEC.)
Far from promoting good government, term limits have hobbled it – which is how the slow erosion of home rule began. It’s easier for industries to get their legislative agenda enacted once at the state level instead of multiple times at the local level. Term limited legislators aren’t around long enough to see the consequences, so why bother thinking long term? Add to that the current state government’s mania for selling off every valuable asset it owns – and the crippling of those public institutions that it cannot outright kill – and you are left with a statehouse that is content to let the private sector call all the shots.
Columbus has gone out of its way to kneecap local communities on fracking in particular. Governor Kasich, having failed in his first clumsy attempt to strip localities of the ability to negotiate road use and maintenance agreements with industry, now appears poised to slip it in through his new energy bill. (The bill includes other giveaways to industry as well.) Kasich has also stripped communities of jurisdiction over industrial construction. At this point there is little regulatory action that towns can take aside from zoning ordinances.
So if regulation was not a losing proposition going into the anti-fracking effort, the sellout to lobbyists in the capitol and virtual elimination of home rule seals the deal. What does that leave local activists? Trying for complete bans instead of tweaking around the edges. It may sound absurdly lofty for a one light town to adopt a bill of rights for its residents, but that may be the last (and best) ground to fight on. Don’t bother with processes that postulate harm and try to negotiate how much. Don’t fight neutered regulatory agencies or politicians in the pocket of the industry. (Or ex-politicians who have become industry shills, for that matter.)
Go big instead. Say that you simply want no part of it. Insist on the right to self determination. The fracking industry has already rigged the system; trying to get it to build safely, drill responsibly or disclose its hazards plays to its strengths. But what about a document that declares the rights of citizens to have full and final say on the most pressing quality of life issues that face their communities?
Would industry lawyers be eager to go into a courtroom and essentially say, “we know you don’t want us here but we’re forcing our way in anyway”? It doesn’t seem like a winning position. Trying to get a court to overturn such a fundamental declaration would probably be wildly unpopular. While a sympathetic judge might well go along with them – and that’s a whole other post – the process itself would smoke out the industry’s cold indifference to the communities it is endangering. That prospect might just get the industry to back off. And in any event, what else have we got? As one citizen put it: “The federal government has failed us. The state government has failed us. You are our last resort.”
Cross posted from Pruning Shears.




23 Comments

Here’s #OccupyPortland (OR) on implementing home rule (video). It would be interesting to know about progress on establishing homerule in Pittsburgh.
Absolutely. Not sure about PA, but home rule is in the Ohio Constitution (in letter if increasingly not in spirit). It got put in there in 1912 along with some other good stuff.
Activists a century ago left us a pretty great inheritance. I hope we can live up to their example.
This is all part of the ALEC (i.e., Big Business) drive to give Big Business undisputed dictatorial powers. Similar efforts to take away the public’s ability to stop businesses from destroying their land and water were pressed in Minnesota by Republican legislators this session.
Right. Apparently our country is doing so well these days that we can stiff-arm employment and continue to burn coal for power.
Running around like your hair’s on fire isn’t a very convincing argument for throwing away tax money. What is the matter with you people, do you like being poor?
Apparently you are so fact-free that you can continue to be an inane blowhard without an ounce of self-realization.
Spending your waking hours posting idiotic drivel designed solely to irritate others isn’t a very convincing argument for your intelligence or your emotional stability.
What is the matter with you, do you like being teh stoopid?
I’ll take that as yes, we like being poor.
Great diary, danps. thanks for posting.
We live in a country where the government allows and enables corporations to poison us all for the sake of ever-increasing profit for the privileged few.
If only the bastards had to drink the water they pollute.
So you’re saying that people must give up their right to say “no” to businesses wanting to just move on in, pillage, and then leave behind wreckage when they’ve finished getting what they want?
Is that the Republican way?
This is your life, being an idiot?
The shooter who shoots blanks. Your feet should thank you.
Pillage? Wreckage? Are you equating this with the sacking of Rome? That’s a little much don’t you think? In any event Ohio now has a natural resource it can produce and sell, and extracting natural resources tends to be messy.
I can understand that people don’t want the mess, but do they have the means to be fussy about income producing business? These are not the best of times and jobs with new money are scarce.
Worse than the sacking of Rome since the damage being done by corporate and individual greed to natural resources and human-built public assets is occurring on a global scale. And claiming it’s all about the job creation is getting it backwards – plundering resources and assets is how to create hard times, not how to get out of them.
It’s a great piece, danps, but i smacked my forehead reading this, and I’m embarrassed to say I’d never thought it through to its natural conclusion:
“The successful effort to implement term limits back in the 90s has born its expected fruit: Legislators do not have the opportunity to build up a store of knowledge and experience on how the legislative process works. Lobbyists, under no such constraint, can learn the system inside and out, and bring that to bear. (Incidentally, the inability of legislators to thoroughly learn how the machine works also – surprise! – creates demand for legislative chop shops like ALEC.)”
Like some others. I’ve pined for the concept in the early days of our republic when legislators served a term at either the state of federal level, then went home to actual lives, encouraging the idea that elected politicians could again be true ‘servants of the people’s not just careerists in the revolving doors between government and private sector profiteering. Reading about the many Fed Governors who bounce back and forth between them, and profiting from insider info is seriously depressing, as is the weak-assed kinda/sorta rules Congress *might pass* barring themselves from same.
So…long way around Dobbin’s barn to say I like your ‘Go Big’ idea. But I’d also love it if every state would grant the environment/Mother Earth equal status with humans as Venezuela did. Nature as a gift was the central idea to the Sacred Economics ideas in the film in this diary I posted recently. (The David Korten videos are good, too; one link is to ‘Capitalism’s danger to democracy’.
But those ideas would be Going Huge, and might get some support someday soon. Americans are starting to wake the fuck up to the damage of our Cheney-esque energy non-solutions and dangers.
Yeah; not fast enough, but that’s why we have our work cut out for us IN THE FIELD, through every imaginable way there is to alert people to the need to change the way we see energy sources as a necessary evil, and rethink it all.
Hope this made any sense; I just woke up from a crazy nap after Occupyin’ Mancos hard… ;o)
Oh; and are you in Ohio? We may have had this conversation before, and as usual…I’ve forgotten. ;o)
And Mr. Shooter, please read up on the dangers of fracking; more and more info is coming out all the time, from this NYT expose back in Feb. 2011 to emerging alerts NOW; google away. Once you kill huge swathes of water, soil, and air, they stay dead and unusable. Even the freaking Denver Post is starting to get it.
The next county west of me has plenty of those faucets whose *liquid* (calling it water would be a disservice to actual water) lights on fire due to gas wells. And please note the new info about high pressure fracking increasing earthquake activity.
Rather than flailing against the dangers of fracking and the overall use of fossil fuels, I suggest that all of us that are really opposed to those products make a serious commitment:
1. Stop using autos and any gas products. Use a bike or some other such non-fuel means of transportation
2. Stop using natural gas, the real reason for fracking to start with
3. Stop using any electricity created by coal or nuclear plants.
We can starve the corporations out of existence if we do not buy their products.
Er…that would be Bolivia; just shoot me now, please; put me out of your misery.
Shooter, you’ve kind of missed the point of the essay. Assume we like being poor; shouldn’t that be our right? Are we allowed to make decisions on our own or do we have to have the state forcing this on us?
As for the money and jobs argument, I’d like to see some documentation – particularly from places where fracking has been going on for a while. Has western Pennsylvania been enriched by its experience with fracking? Or has the oil and gas industry managed to privatize the profits and socialize the losses? And by the way, does your cold monetary analysis include the cost of cleaning up the environmental wreckage?
What price would you put on, say, having to resort to bottled water because your drinking water has become toxic? Just the cost of the water? Does having that make everything better? Is there any price in the stress of worrying about whether your children have been poisoned? I’d like to hear your calculation of that.
Yes, Ohio. Thanks for stopping by to comment!
I support the efforts of local communities to ban natural gas fracking. I agree that the existing system of laws and regulations is rigged in favor of corporations on fracking and just about everything else. But I worry that the CELDF home rule ordinances described in the above post are preordained to fail.
One of them has failed already in at least one federal court case. See Penn Ridge Coal LLC et al. v. Blaine Township, Civil Action No. 08-1452, available from this web site. The court granted an automatic victory for the fracking company after the initial pleadings, meaning the CELDF legal case was so weak that further proceedings would be pointless. The judge paid no heed to public opinion whatsoever.
Thus, one of the key assumptions in the FDL post above has been proven wrong on at least one occasion. The industry lawyers eagerly went into the court room, ignored public opinion, and easily won. There is no evidence that the fracking companies left the town alone after this victory. See Township Loses Battle Against Gas Firms Over Drilling, Pittsburgh Post Gazette, October 3, 2010.
This loss by CELDF in court promises to be only one of many, because the home rule ordinances written by CELDF are unconstitutional on their face. The ordinances claim to nullify the constitutional rights of corporations (see examples at the CELDF web site), despite more than 100 years of legal precedent to the contrary. Very few judges will defy that precedent without a sound, logical reason to do so. The CELDF ordinances provide very little in that regard. Mainly, they assert that Supreme Court decisions after the Civil War vaguely violate the sovereignty of the people and the right to a republican form of government. For almost any court today that will not be good enough.
It is certainly true that the existing system of environmental regulations leaves local communities with no conventional legal recourse. So, something that involves “going big” legally or politically may be necessary. But communities should accept that choosing the CELDF way of “going big” will not mean winning in court.
The question, then, is whether losing in court might still be worth the price of certain legal defeat. Local governments strapped for cash can ill-afford to pay the large court costs involved when an energy company successfully sues a community. Maybe the effort to assert home rule can justify that risk by accomplishing some larger goal. CELDF hints that repeated local defeats might help generate momentum for changes in the state or U.S. constitutions, much as repeated local oppressions helped fuel the movements for abolition, women’s suffrage, and civil rights. Maybe so. But nobody should kid themselves about how long and hard that road will be.
Sigh. Broken links in above post. Here they are:
http://old.post-gazette.com/pg/10276/1092255-58.stm
http://docs.justia.com/cases/federal/district-courts/pennsylvania/pawdce/2:2008cv01452/88840/45/0.pdf?1270165584
That’s the whole other post part of “While a sympathetic judge might well go along with them – and that’s a whole other post”
Ohio has home rule written into its Constitution, which may provide a protection PA lacks. I guess we’ll see. If it turns out to not be the case, then civil disobedience enters the picture. The only way I’ll lay down for this is in front of a bulldozer.
Hi danps,
Yes, you’re right, it is a whole other post, didn’t mean to give you a hard time.
I guess I would argue that the fracking companies are going to get a sympathetic judge almost 100% of the time unless CELDF or other lawyers give judges some basis for taking a different view. Possible analogy: civil rights. For a long time, it was extremely hard to get any judge to go against Plessy v. Ferguson, but eventually Thurgood Marshall and company found a way in Brown v. Board of Education of Topeka.
I’m in the early stages of legal research on the “home rule” provision in Colorado’s constitution. From what I can tell so far, unfortunately, Colorado case law says that the state’s interest in oil and gas extraction totally preempts any conflicting local ordinance passed under the home rule provision. So, again, CELDF would lose, absent some more compelling legal rationale.
And the implication of that may well be civil disobedience. I don’t live in Ohio but I have family there, and I would definitely lay down in front of a bulldozer to protect them if I had to. Scared s***less though I would be.
I still hope that nonviolent resistance like that, if it were necessary, could be tied to legal action giving protesters some kind of shield, whether utilizing a variant of the CELDF community rights ordinances or something else. One of the most basic ideas in American law, ever since the Revolution, is that the government can’t just authorize people to come and inflict harm on you. But that’s exactly what the government is doing with fracking. There damn well ought to be a way to put the law on the side of protesters when they lay down in front of the bulldozers.
Please send me an email to dan at pruningshears dot us if you’re willing to be a resource in this effort. I think your legal knowledge on this issue (and in general) would be a huge help!
I was born in Cleveland came of age in Kent; went to KSU for a time. It arguably informed my political and social leanings.