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by danps

Eminent Domain and Corporate Need

3:57 am in Uncategorized by danps

Cross posted from Pruning Shears.

Thanks to rjs for the help in researching this post.

The Work Around: Build the pipeline ostensibly for oil but leave wiggle room to change that later.

Last week I linked to this article detailing how the relative lack of pipelines in Ohio is preventing fracking from taking off as the extraction industry would like. This means pipelines have moved front and center in some communities. Since the fastest way to assemble the land for one is to pressure citizens to sell under threat of seizure via eminent domain (ED), ED law is starting to get a much closer look.

The short version is that ED can be used for oil but not liquefied natural gas, meaning yes for traditional drilling but no for fracking. Companies have taken note of the distinction:

the eminent domain statute says only companies that ship ‘natural or artificial gas, petroleum, coal or its derivatives, water, or electricity’ through pipelines have a right force Ohioans to sell easements on their land. The eminent domain law doesn’t mention natural gas liquids.

To get around that, the company uses a different definition for the ATEX in court cases where it is citing eminent domain power, calling it a “petroleum product derived from natural gas extraction process.”

So here’s the conundrum for the fracking companies: they want to use the threat of ED to pressure homeowners into giving up their land, but they can’t invoke ED for the purpose the pipelines are being constructed for (until they can once again fix the law to their liking, that is).

The workaround appears to be this: Build the pipeline ostensibly for oil but leave wiggle room to change that later. Of course, an oil pipeline is troubling enough. Sunoco has demonstrated over and over and over again that its Ohio pipelines are leaky. Looking strictly at their track record around here, there is little reason for Portage County residents to feel confident in the soundness of this new pipeline.

As problematic as an oil-only pipeline would be (why here and now, incidentally? Have vast new petroleum reserves been discovered in eastern Ohio?), it appears Sunoco is at least leaving the door open for alternate uses:

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by danps

Commissioners’ meeting background: Pipelines, fracking and peering underneath the rock

4:50 am in Uncategorized by danps

Cross posted from Pruning Shears.

Last week I posted a statement prepared for our county commissioners regarding a pipeline under construction in Portage County. As I began outlining a report on the meeting I realized a good deal of context was needed for those not in the thick of it. Here is a bit of background.

Pipelines have traditionally been understood as carrying oil, but that has begun to change with fracking. Companies now want to use them to transport various fluids associated with that process, and in places that do not already have lots of pipelines there is a new push to construct them. As the Columbus Dispatch reported last May:

Officials of the oil and gas industry said the pipelines and the plant are safe and vital to their plans to develop Ohio’s Utica shale.

A lack of natural-gas processing, industry officials say, keeps shale wells from delivering to buyers and has slowed the pace of drilling and fracking.

So places that have been targeted for fracking are seeing a new interest in pipelines. The first step in this process is securing the land along the route, and this is also perhaps the shadiest part of the process. Pipeline companies subcontract out through what are called land men. These individuals go door to door attempting to negotiate the necessary legal agreement – and that is an exceedingly diplomatic, anodyne and generous way to describe how it sometimes works.

Land men are not governed by anything other than their scruples. Theoretically the companies paying them have requirements for conduct, but the arrangement more often seems designed for plausible deniability: Ask a pipeline company about allegations of unethical behavior and they will insist in the strongest terms that their contractors must adhere to the highest ethical standards – and usually that they’ve rarely or never had complaints about their land men.

Which is at least slightly disingenuous. After all, who can say what was discussed on someone’s doorstep? Some residents have reported being delivered contracts that were far different than the ones promised; others that they were told eminent domain (ED) was a foregone conclusion and signing the contract a mere formality. Good luck proving it, though. Unless the homeowner had the presence (and ability) to record the conversation, it would end up as he said/she said in a courtroom.

The land men basically pick off the low hanging fruit. Those reluctant to sign require a little stronger persuasion. In Portage County that has meant the pipeline company making what it has determined is a fair offer to buy the property, backed up by the threat of seizure via ED. These letters have a veneer of legal nicety, but an unmistakable subtext of menace and intimidation lurks behind them as well.

For instance, letters sent to residents say that the state of Ohio allows the company to seize the property via eminent domain – this will be a crucial topic in next week’s post – but that they would rather negotiate something agreeable to both. In other words, we can take it if we want; now let’s negotiate! (Imagine how successful those negotiations will be for the homeowner.) The good cop/bad cop routine continues as the company says it is

of the opinion that this offer is in excess of the fair market value…[W]e make this final and best offer in the hopes that the parties may be able to reach an amicable agreement and avoid unnecessary and costly litigation expenses. Please understand, however, that if you force us to commence eminent domain proceedings to acquire the easements, this offer is withdrawn.1

Basically, play ball with us or you’ll lose your land.

It should be clear just how much gumption it takes to fight a company on something like this. Most folks will be blindsided by it: There they were living their lives, not knowing they were in the way of pipeline company profits, and one day land men show up. They will generally not be knowledgeable about the laws in question nor will they have access highly specialized legal counsel. Most will be sufficiently risk averse (and sensible) to not want to risk what is likely their biggest single investment on an all-or-nothing showdown with the oil and gas industry. So they sign and get something instead of risking getting nothing.

That’s how these pipelines get created. But even though the playing field is so decidedly tilted in favor of big business, it still hasn’t been entirely cleared. More on that, and how it came up in the commissioners’ meeting, next week.


NOTES

1. I believe this short excerpt to be covered by the fair use provision of copyright law:

the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

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by danps

Statement to county commissioners at pipeline meeting

7:23 am in Uncategorized by danps

Cross posted from Pruning Shears.

The following statement was prepared for Thursday’s Portage County Commissioners pipeline meeting. I’ll have a write up of the meeting next week.

Pipelines leak. Last summer’s spill in Arkansas was so severe that houses had to be demolished because of it. Last September there was a six inch pipeline spill of almost a million gallons in North Dakota. These are just two of the most dramatic examples from the last year. A little over a year ago a report commissioned by the Pipeline and Hazardous Materials Safety Administration (PHMSA) documented hundreds of spills throughout the country.

Oil Pipeline

“It is up to us to think in advance what those hazards might be, and to insist that business as usual is not good enough.”

So the prudent question for any community faced with a new pipeline should not be, will it leak? But rather, what happens once it does leak? The industry’s monitoring schemes are often inadequate. As Reuters reported of the North Dakota spill: “A robot, known as a ‘smart pig,’ detected anomalies during what Tesoro called routine internal inspections of the pipeline September 10 and 11.” Yet no action was taken on that. All the high tech monitoring in the world is useless if the company does not dedicate the resources to act promptly when a red flag is raised.

The industry claims to be vigilant about watching for spills, but the PHMSA reported that for hazardous liquid pipelines “[a]n emergency responder or a member of the public was more likely to identify a release than air patrols, operator ground crew and contractors.” That was the case in North Dakota: It was discovered by a farmer, and not disclosed to the public for eleven days. Will Sunoco depend on the citizens of Portage County to be its eyes and ears as well? If not, then what do we have beyond its earnest assurances?

Transparency and disclosure are important concerns as well. In Arkansas, an oil company consultant was put in charge of a no fly zone over the site of the spill, giving the company the ability to prevent the public from understanding the scope of the disaster. Has Sunoco made any binding commitment to not choke off the flow of information if the oil starts flowing?

Finally, who will be in charge of remediation? As a citizen I would greatly prefer our local public first responders be given the proper training and equipment to do so. Having private, company-funded contractors in charge means trusting that the company adequately funds the operation.

Safety does not have a return on investment, though, and over time it will be tempting – maybe irresistibly so – to skimp on it. Moreover, what transparency will there be for this privatized force? Will its employees be silenced by gag orders and nondisclosure agreements? The normal means of democratic accountability that apply to public servants will not apply to them. Vital safety information could easily be withheld.

Large conglomerates are profit-seeking entities, and they pursue those profits amorally. If they can maximize profit by being good corporate citizens and working in good faith with a community, they will. If they can maximize profit by cutting corners and stonewalling when a PR nightmare erupts, they will. It is no comment on the integrity of their employees to say that these impersonal entities will, if the bottom line so dictates, needlessly visit great hazard on a community and leave that community to fend for itself if something goes wrong.

It is up to us to think in advance what those hazards might be, and to insist that business as usual is not good enough. Pipeline companies have proved to be extraordinarily poor neighbors of late, and we should require a much higher standard of conduct for one that wants to move into our neighborhood.
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by danps

Naturally occurring, but not with wanderlust

6:19 am in Uncategorized by danps

Cross posted from Pruning Shears.

About a year ago a local family began getting flammable water. The fact that their house’s recorded methane levels (along with their sink) shot up shortly after fracking began nearby was considered maybe not coincidental, so the Ohio Department of Natural Resources (ODNR) looked into it. Before the agency did, though, it let the public know which way it was leaning: “Methane is naturally occurring in this portion of the state, and the water well in question was found to be drilled into shale, which may have led to these increased levels.”

Isn’t the point of an investigation to try and understand the cause, not to confirm one’s hunches? It doesn’t inspire a lot of faith in the impartiality of the investigation to start by declaring the expected outcome. (I noticed the same thing when North Dakota State Environmental Health Chief Dave Glatt said he didn’t expect to find groundwater contamination at their recent oil spill. Oil and gas regulators seem a little eager to pre-exonerate the industry they are supposed to be keeping an eye on.)

ODNR concluded its investigation a few weeks ago, and the result was no surprise to anyone who had seen the agency tip its hand at the outset:

An investigation by the Ohio Department of Natural Resources recently concluded that the gas in the Kline’s’ water well was chemically different from the gas produced by a Mountaineer Keystone oil and gas well 1,500 feet southeast of the house.

An Oct. 18 agency report said methane in the Kline’s’ well matched the methane found in natural gas that leaks from shallow underground sources into groundwater.

“Up to 40 percent of the water wells within the area of the (shale) drilling have some concentration of methane in them,” said Mark Bruce, a Department of Natural Resources spokesman. “Methane is naturally occurring.”

The verbatim use of “methane is naturally occurring,” in addition to being a favored pro-fracking talking point, is not especially relevant when discussing the impact of fracking. No one disputes that methane occurs naturally, or that some water supplies have high levels of it that long pre-date fracking. The relevant question (or one of them) is: what happens to that naturally occurring methane when heavy industrial activity begins nearby?

Setting off explosions below the earth and repeatedly forcing millions of gallons of chemical cocktails into the ground makes it more permeable. We already know that fluids in shale fields migrate much farther and much faster than previously thought, because busting up the earth makes it more porous. Saying that these fluids and gases are naturally occurring is trivial; stupid even. What matters is not whether they are naturally occurring but whether they are naturally migratory:

“It challenges the view that natural gas, and the suite of hydrocarbons that exist around it, is isolated from water supplies by its extreme depth,” said Judith Jordan, the oil and gas liaison for Garfield County, who has worked as a hydrogeologist with DuPont and as a lawyer with Pennsylvania’s Department of Environmental Protection. “It is highly unlikely that methane would have migrated through natural faults and fractures and coincidentally arrived in domestic wells at the same time oil and gas development started, after having been down there … for over 65 million years.”

It’s entirely possible the Kline’s well was drilled into shale, and also that the methane is chemically different from that at the frack operation. That (possibly) shale-drilled well was working just fine until a year ago. Then the drilling began, and whoopsie their water began catching fire. Determining that the methane did not come directly from the drilling operation is only part of the answer. The other part, still unanswered, is whether a – naturally occurring! – pocket of methane was loosened up in newly permeable ground and migrated to the family’s property.

(A gas migration would be more like a tornado than an earthquake – going in a line and only affecting land in its path. Saying “it couldn’t be the drilling because other nearby houses were unaffected!” makes as much sense as saying a tornado didn’t level a house because neighboring houses were undamaged.)

It’s too late to know if that is in fact what happened, because there is no mapping of what the ground looked like prior to drilling. The fact that this entire area of hazard is unaccounted for doesn’t reflect very well on ODNR, though. If all they do is make sure contamination doesn’t come directly from operators, declare that it’s naturally occurring, and then wash their hands of it, Ohioans will have to bear the rest of the risk on their own. Given how easy it is to shuttle between the agency and the industry, that might bode well for regulators’ employment prospects once they leave. But it sure doesn’t do much for citizens.


NOTE: As of this writing, the report is not available on the ODNR web site.

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by danps

Testing water and building community

4:52 am in Uncategorized by danps

Cross posted from Pruning Shears.

Last summer I wrote about the Sierra Club’s Water Sentinels program for testing water. Our town’s anti-fracking activists have been using it at their homes for a while now, but around the time of my post we also began free monthly water testing for the community. We are careful to emphasize several caveats, though. The most important is that the testing is not comprehensive or EPA certified; it is not meant to be a substitute for a certified test. It measures a handful of items and is only meant to give a basic idea of water quality. Similarly, the testing would almost certainly not be admissible in a court of law; anyone with an eye on future court cases should go with an EPA certified lab.

That said, the tests are a good way to look for changes. If, say, your chlorine level is stable for six straight months and then suddenly triples, something might be up. Prior snapshots are among the crucial missing pieces in assessing the impact of fracking. At the moment there are few institutional incentives – private or public – to establish baselines prior to fracking. Industry players certainly have nothing to gain. They have gotten their favored legislation passed and are moving right along. The best result they could get would be to continue at their existing pace.1

As for the state, it is failing miserably. There are several possible reasons for that. It could be that the Ohio Department of Natural Resources (ODNR) is woefully understaffed and simply not up to the task. It could be that decades of conservative rhetoric on how faceless, unaccountable bureaucrats are strangling free enterprise with regulations has had its intended effect: regulators are now too timid to be useful. It could be the pernicious (and logical) outcome of an erstwhile conservative project on term limits. It could just be the revolving door, aka cognitive regulatory capture.

The actual reasons don’t matter though; all that matters for citizens is that there is zero support for the kind of preliminary investigation that is a crucial prerequisite for connecting any environmental hazard with fracking. As it is, industry can simply claim the current environment is unchanged. Your water was always like that; prove us wrong.

Colorado is grappling with that very issue right now. Reporting on a proposed water testing rule aimed at discovering spills, Bruce Finley writes: “Unless such spills are near wellheads…state regulators would lack before-and-after data that could be used to assess damage to try to hold companies accountable.” While no testing at all is bad, testing at a handful of spots (selected by whom?) might be even worse if it gives the public a false sense of security. Better that people know they are completely in the dark than to be fooled into thinking an ineffectual agency is adequately monitoring the situation when it isn’t. (See here for additional reporting by Finley on before-and-after issues.)

This is the context for community water testing: essentially acting as the ODNR Volunteer Auxiliary, attempting as best we can to put together a “before” picture for residents. This past Sunday we had a steady stream of people showing up, thanks in part to a couple of larger media outlets unexpectedly picking up our press releases. (My camera did not like the lighting; it offered two options – no flash and dim, or completely washed out with flash.)

Samples were numbered and measured in order:

The results were recorded on a simple half-sheet printout with a carbon copy beneath (we are not a high tech operation). Residents got one copy, our group the other. Those who get the testing done regularly can use the papers to track changes, and our group is using them to slowly build a database. It isn’t perfect, but it’s a lot better than waiting for the state to take an interest in our community.

As it turns out, the community aspect is becoming important. In a semi-rural are like ours it can be difficult to get the word out. One of the people who showed up was surprised we’d been testing as long as we have because he’d only learned of it earlier in the week. In a place where there is no community center or regularly scheduled events that bring lots of people together, how do you publicize something? One way, as we are learning, is to keep active consistently over time. We test on the first Sunday of the month, and that message is slowly starting to make its way out.

Having people gather breaks up isolation. Many who are worried about fracking often feel alone because they don’t know anyone who feels similarly. This is particularly true in places where landmen have been pushing leases. Neighborhoods can – and have – become bitterly divided between those who have signed and those who haven’t. Those who haven’t might be preventing operations (and money) from flowing. Where fracking has started, those who haven’t leased often feel great resentment at having communal hazards and quality of life degradation2 visited on them against their will. One under-appreciated impact of fracking is the way it rips at the fabric of a community.

People in the middle of a situation like that might think they are the only ones going through it. Community water testing has provided a way to say to everyone who shows up: you are not alone. There are others who feel the same way you do, and who are going through the same thing you are. Come for the water testing, stay for the fellowship. While we don’t know what will ultimately happen with the former, the latter is already creating benefits.


NOTES

1. Drillers sometimes do provide people with water tests, but the measure of whether those tests are a baseline comes when potential fracking impacts on water supplies are brought up. What we are seeing right now is a lot of hand waving at the initial test along with comments to the effect that the earth is a complicated place and who can say what might have caused that water to become flammable anyway? Rule of thumb: if there is no way for a testing regime to establish a link to subsequent activity, it is not a legitimate baseline.
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2. Fracking makes a hell of a racket, and sound waves are not forbidden from leaving the property from which they are made. Fracking also requires a great deal of heavy truck traffic, but the wear and tear it creates on roads does not have to be compensated for by the companies that cause it. As the saying goes, privatize the profits and socialize the losses.
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by danps

“You quickly realize that no one is there for you but you know who? You. That’s all you have.”

7:12 pm in Uncategorized by danps

Paul Feezel

Cross posted from Pruning Shears.

One of the under appreciated hazards of fracking is its effect on democracy. Fracking is a big, intrusive process – one that sucks up lots of water, creates enormous amounts of traffic and an ungodly amount of noise, etc. Setting aside the environmental dangers and health effects (!), the heavy industrialization involved in fracking guarantees that communities will be abundantly aware of it.

In other words, it will be extremely controversial. Those who have leased their land or are otherwise profiting from it will be inclined to support it. Those who aren’t, not so much. It divides the community, which was one of the messages driven home this past Saturday at a public meeting on what happens when fracking comes to town.

The meeting was organized by Shalersville Against Fracking; its members recorded the presentations and posted the clips to its You Tube channel. One of the presenters, Tracy McGary, spoke about how her rural part of Columbiana County (Ohio) had been transformed by fracking – including how it has set neighbor against neighbor.

One of the reasons these disputes are so bitter is because industry and government have collaborated to strip citizens of the usual means of working out contentious issues. In Ohio, the 2004 House Bill 278 stripped localities of the ability to regulate wells. In Colorado, the state’s Oil and Gas Conservation Commission has actually sued a town that passed legislation regulating drilling.

This has created the ludicrous and perverse scenario where townships are, ahem, empowered to make pissant decisions on business issues of interest to almost no one but are prohibited from doing anything on issues of great interest to many citizens. Does the local drug store want to widen its driveway five feet? It must approach the city council, hat in hand.

But if you want to know how much Hydrochloric Acid or Ammonium Persulfate is being injected into your community’s ground, well, too bad. The inability of citizens to meaningfully weigh in on these most consequential issues – and hold elected officials accountable – creates free floating anxiety, anger and frustration that manifests itself in long running, bitter and unresolvable disputes.

The ill will is directed elsewhere, too. One of the other speakers was Maria Payans of The Community Action Forum on Marcellus Shale Gas, and she spoke of her experience dealing with state officials (transcript here). After talking about the unwillingness of representatives and regulators to act she says:

We believe that we have agencies put in place that are supposed to protect us; people that are out there that are taking care of us. And then, when you become the person that needs the help, you quickly realize that no one is there for you but you know who? You. That’s all you have.

Some might think that is a depressing commentary, and I suppose looked at from one angle it is. Sure, it would be nice for our officials to be responsive to public sentiment, but there is also a certain liberating quality in giving up on them. Our government at all levels has made it abundantly clear we are on our own with this issue. Why keep beating your head against the wall trying to get an agency charged with protecting the environment to protect the environment? If it’s starved of resources, a revolving door for the industry and a victim of cognitive regulatory capture, is it really a good use of activists’ time trying to get it to move?

We have each other, and that’s all we have – which can imply many things. It can mean finding ways to publicly shame those who are so resolutely unhelpful or engaging in direct action. These are examples of working outside of the establishment and around institutions. But as Payans noted, it can also include a component of change from within:

You need to write letters to the paper, get on committees, get on local commissions, run for office. No one’s going to protect our democracy but us in the end. It’s really the truth. What I will say is that we know that problems are there. We know that jobs, you know, are being provided – to a degree. We’re not counting what we’re losing, though. And I tend to think a lot of what we’re losing is more than what we’re gaining.

However it’s done, though, the status quo is untenable. Fracking has distorted democracy to the point that democracy no longer really functions in the places fracking has taken hold. People are starting to realize that, though, and as the scales fall from their eyes Payans’ exhortation rings true: all we have is each other.

by danps

Home rule on that ballot this election season: activists versus institutions

4:18 am in Uncategorized by danps

Cross posted from Pruning Shears.

Ohioans have experienced a number of different frustrations in trying to get their government to be responsive to their concerns about fracking. The biggest one may be the state’s usurping of home rule of home rule on the issue. Ohio’s Constitution had home rule – basically, the right of cities and towns to self-government – enshrined in it back in 1912, but in 2004 the state passed a law stripping localities of the right to legislate on the issue.

On the face of it, that wouldn’t seem to be something that would pass judicial scrutiny. It would seem to be problematic to go to all the trouble of amending the Constitution to spell something out, then have the statehouse come back later on and say “yeah, not for that.”

On the other hand, it’s all just words on a page without anyone to respect it, right? The US Constitution says Congress shall pass no law regarding the establishment of a religion, but the only thing preventing Congress from doing just that is its sense of forbearance and its respect for tradition. It isn’t as though representatives would be struck dead by bolts of lightning from Avenging Lady Justice if they did so.

Similarly, nothing requires the Supreme Court to overturn such a law. Certainly the current court is no great respecter of precedent; more often it seems to start with its preferred political outcome and work the jurisprudence back from there (corporations are people! money is speech!)

As long as legislators are brazen enough to pass whatever they want and defy the court to tell them no (and here in Ohio our leaders won’t just dare the court to overturn them, they will actually ignore court decisions reversing them), everything in the whole wide world is grey area. Just imagine how muddy it gets on an issue like municipal home rule, where the state actually admits (PDF) “situations are open to court interpretation on a case-by-case basis.”

The only way for a town to figure out if it really has home rule, then, is to challenge the state and assert the right to self-government. This has recently been happening in the form of citizen-led initiatives, and they have a very interesting characteristic: more of an outsider-versus-establishment dynamic than a liberal-versus-conservative one. For the most part, Republicans are enthusiastically pro-fracking and Democrats are acquiescent. Columbus is wired to serve the oil and gas industry, and the next big challenge to it from the capitol will be the first.

So efforts like those in Mansfield and Broadview Heights are happening with essentially zero political support. If you want to see honest to God grassroots political activism, this is a great example. For an even more dramatic example, look at the communities that have not yet secured home rule. In Randolph Township (Portage County), two activists worked to get a vote for limited home rule on the ballot and they are doing their best to whip up support for the measure. One of them, Newt Engle, spoke at a public meeting last week, and here is his explanation of how it came about:

Then listen to how he describes the pushback they got from law directors, commissioners, and so on:

The political establishment is completely aligned against these people, and that makes their efforts a tall order. In addition, home rule has certain requirements (here is a nice primer (PDF)), which opponents are using to raise the specter of big, scary taxes. That talking point is something between wildly overblown and flatly untrue1, but getting the word out is difficult – especially without a political base of party support to stand on.

Without that base of support, activists are left to raise awareness on their own. Their efforts have generated a decent amount of local media coverage, which obviously helps to spread the word, but the industry has the resources to flood the airwaves with ads. There are lots of commercials about the wonderfulness of natural gas on both TV and radio. The industry has that filed pretty much to itself, and it has made extensive use of it.

Considering all those disadvantages, there may well be more failures than successes on these initiatives. Supporters would probably be wise to set their expectations to that effect. It would be easy for a few defeats to create an outsized sense of discouragement. If activists see themselves as settled in for a ongoing effort though, it could lead to some interesting developments. At a minimum, a long term effort with zero party support would create an increasing demand for something to provide that political backing. And politics, as nature, abhors a vacuum.


NOTES

1. Engle looked into the additional cost and posted an extended comment on an anti-home rule site. The comment was deleted, but Engle saved a copy of it before it went away. This excerpt address the cost of police protection, which one trustee put at $376,000 (really!)

Now let’s look at the issue of police protection. Yes, the trustees have a quote of nearly $376,000 for the Sheriff to provide 48 hours of police protection a week for a year. Truth is we could probably get the cost up to over a million dollars if we asked for 24-7 coverage. But let’s be real. The ORC (Ohio Revised Code) does not specify how many hours the police must be in the township if we have limited home rule. The “fact” is the ORC only requires the township to provide police protection on a regular basis. Furthermore the ORC stipulates several different ways this requirement can be satisfied. When I went and talked to Sheriff Doak, he indicated he was only asked to provide a quote. He was not asked about any other options or if he would be willing to keep patrolling the township just like he is now. But let me stop here and let you know that the Sheriff’s office is so poorly funded that Randolph Township is very rarely “patrolled” by the Sheriff’s department at all. Most of the time the deputies only come to our township to take a report. Therefore this idea that limited home rule would require the township to pay for 48 hours of police protection is simply not true. Our Sheriff and his deputies are currently doing a fine job in our township. Why change a thing? With a little negotiating the township will be able to allow the Sheriff to keep providing the same police protection we are enjoying now at little to no cost.

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by danps

Trustees reject symbolic statement on fracking and home rule

3:09 am in Uncategorized by danps

Against fracking 01

(Photo: Bosc d'Anjou/flickr)

 

The trustee meeting I attended Tuesday actually began over hundred years ago. In 1910 Ohio voters approved the calling of a constitutional convention, and in 1912 a whole series of amendments were adopted. The Ohio History Central link goes to a short but very good summary, and it’s definitely worth taking a minute to read it. The amendments that failed foreshadowed many of the civic battles that followed. In addition, the protection of workers’ rights and exclusion of African American rights prefigured the “devil’s bargain coalition” that made the New Deal possible – then blew the Democratic party apart thirty years later.

One of the amendments that passed was home rule, which essentially said that any power not explicitly granted to the state was reserved for cities. Lawrence F. Keller and Maxine Goodman Levin described (PDF) the conditions that prompted the need for it:

The national and state governments were quite small at the time and the demands for public regulation and services were focused in the burgeoning cities. To provide these services efficiently, cities needed independence from the often corrupt state politics and reform of their own corrupt political machines. The reformers at the time thus focused on cleaning up local politics and creating a legal status for cities that protected them from state politics.

(Considering some of the conditions in our current politics, it may be time for another constitutional convention.)

Home rule is really only meaningful for contentious issues, though. In the same way that only unpopular speech needs defending, home rule only matters when it goes up against some powerful interest. If you can’t have it then, don’t bother having it at all. No one needs home rule to declare Motherhood Appreciation Day.

The measure of free speech is the degree to which unpopular speech is protected; similarly the measure of home rule is the degree to which municipalities can act contrary to the wishes of the state. And in the same way that someone who does not believe in protecting unpopular speech doesn’t really believe in free speech, a government that will not allow home rule to flourish in the midst of sharp disagreement doesn’t really believe in it.

Tom Suddes wrote earlier this year about how Ohio embraced Potemkin home rule in 2004 when it stripped communities of the ability to regulate fracking. Suddes also noted that “the legislature has forbidden cities and towns to regulate predatory lending (2002); to regulate guns (2006); to require residency of municipal employees (2006); or, in effect, to regulate cable TV companies (2007).” In other words, home rule as long as the state approves.

In a way that’s a good thing. Democracies do not run on autopilot. You can set up a governing document with all the high minded claptrap you want, you can have a theoretically empowered court issue decisions of ostensibly great consequence, but at the end of the day what matters is the enforcement mechanism. Or: moneyed and powerful interests continually look for ways to rig the system against citizens, and the citizenry must fight to hold their gains. If they do not, the gains will erode until they exist only on paper.

A group of citizens concerned about fracking spent the summer drumming up support for more local control. This was an effort of grassroots activists who weren’t paid a dime and who gathered signatures on their own time. We went door to door in the time that was left over after work, family and other obligations were taken care of. We ended up with hundreds of signatures.

Earlier this month we took the signatures to the trustees, along with a nonbinding resolution expressing our concerns about fracking and our disapproval of Columbus for usurping the sovereignty of local communities. The key word is “nonbinding.” It was a purely symbolic resolution, and it was presented as such. Nothing in it required any action, conflicted with the state or put the trustees in legal jeopardy with the oil and gas industry. We emphasized that this was about being representatives: literally representing the views of many of their constituents, even if they themselves disagreed with the sentiments.

One of their refrains over the past few months has been that they would love to help, but their hands are tied. This nonbinding resolution gave them the chance to do something with their hands untied, even if it was just a purely symbolic gesture. Here is how it went (partial transcript here):

So it appears it will take more than the legitimate honoring of home rule to fully restore democracy at the local level.

by danps

ODNR official: we’ll let the public know what’s happening after you can no longer object

3:07 pm in Uncategorized by danps

Cross posted from Pruning Shears.

The fracking industry has dramatically increased its activity in Portage county recently. In some cases the activity is unmistakably tangible (more on that next week), but the real action at the moment seems to be preparing the ground for the deluge. The paperwork is coming in fast and furious, so much so that we are now one of the top ten counties in the state for fracking.

Those of us concerned about that have found using the tools theoretically available to us can be a daunting task. The attempt to learn more about the Soinski Wells really brought the point home. For instance, permit applications are supposed to be submitted to the largest local paper in the effected area. Instead they were published in the Portage County Legal News.

Let me tell you something about the Portage County Legal News: I cannot tell you anything about the Portage County Legal News. I have lived in Portage county all my life (minus two years) and until the Soinski Odyssey I had never heard of the Portage County Legal News. There is not even a print edition of the Portage County Legal News. The Portage County Legal News is the best kept secret in Portage county. Anyone who has lived here longer than a week could have told ODNR that the Record Courier is Portage county’s largest general circulation newspaper – with a print edition and everything.

A minor outcry ensued, and the applications went into the appropriate paper. Incidentally, this is now part of activists’ daily routine: checking the legal notices in the paper to see what latest outrage is planned. Similarly, learning how to read permits, pore over maps, check local leasing records, and so on are developing skill sets among activists. A big part of the fight involves eye glazing tedium. That’s not a complaint, just a description.

Several citizens contacted ODNR Geologist Tom Tomastik with questions. One was procedural – did the fifteen day public comment period begin on the applications date from the Portage County Legal News announcement or from their announcement in a proper outlet? But there were also questions on the details in the applications. There appeared to be some information missing in the application – there seemed to be more there on the ground than the application described. I emailed Tomastik on Sunday:

It is my understanding that there is supposed to be an informational meeting on the Portage county wells listed in the public notices below. I would like to get some clarification on this.

First of all, is it true that there will be a meeting?

If so, will the meeting be held during the public comment period? That would be the most useful; having it after would be like closing the barn door after the horse left.

Will this be a public hearing, or just an informational meeting? It would be much better to have an actual public hearing.

I urge you to hold any session at a time when the most people could attend: on a weekday evening or a weekend.

On Tuesday he responded:

Below is the link to the rules regarding public notice requirements for Class II injection well applications under Section 1501: 9-3-06 (E) (c) of the Ohio Administrative Code. Please read this section. No meeting is held until after the end of the public comment period. A Public Hearing is only required when the objections are relevant to public health, or safety, or good conservation practices. The chief of this Division rules upon the validity of each objection. Since we are receiving a number of comments regarding the Soinski applications, I have agreed to hold a public meeting to do a presentation about Class II injection well applications and answer questions regarding the public’s concerns.

http://www.ohiodnr.com/portals/11/oil/pdf/uic_emergency_rule_9-3-06.pdf

The “after the end of the public comment period” part really doesn’t seem good, so I responded:

I’d like some clarification on this, if possible. The greatest urgency in our community is right now – during the comment period. Being able to ask questions and (hopefully) get answers will help us to make more informed comments while the state is accepting them. The value of any additional information we learn will be greatly diminished once the comment period is over.

Would you please consider meeting with our community during this very brief and crucial window?

To which he responded the next day:

We are planning on having a public meeting after all comments are received and the deadline is passed. That is how the rules are set up under the Ohio Administrative Code, 1501: 9-3-06 (E) (c).

At that point it started getting difficult to give Mr. Tomastik the benefit of the doubt; his reply was completely unresponsive. I decided to give it one last try though:

Yes, I was clear on the rules and your intentions. My request was this: that you hold the public meeting during the comment period so citizens can make the most informed comments possible.

As far as I know you are not legally enjoined from doing this, and it would be of much greater value to the community. As I wrote before, having the meeting after the comment period smacks of closing the barn door after the horse is gone. We need to be able to ask questions now – during the comment period.

And that’s where we stand at the moment: going back and forth via email while the comment period moves to a close. This is your democracy on fracking, kids.

by danps

‘No On Issue 2′: A big win, and a big opportunity

4:15 pm in Uncategorized by danps

Ohio’s overwhelming rejection of the union-busting Senate Bill 5 still has people buzzing, for good reason. As We Are Ohio pointed out, it was first election in the country on collective bargaining rights, and it wasn’t even close. Ohio has 88 counties and exactly six – count ‘em, six – of them voted “yes.” It was a blowout any way you look at it, and this despite a vigorous campaign of dirty tricks both inside and out of the state. Everyone who pitched in deserved every last bit of jubilation Tuesday night.

One interesting dynamic – and this is just an observation from the ground, not hard data – was the degree to which the “No On 2″ side seemed actual and the “Yes On 2″ side seemed virtual. In addition to opponents talking about it both in person and on social networks, there were loads of bumper stickers, people wearing buttons, putting out yard signs, and other tangible signs of support. All the “yes” side seemed to muster was lots of television ads and, of course, the endorsement of just about every major newspaper.

(As an aside, I don’t agree with Join the Future’s call to end endorsements. Papers can and should do them if so moved, but some transparency would be nice. They ought to include prior stances on related issues and not present them in a vacuum. For instance, a presidential endorsement should be accompanied by a listing of the paper’s five previous endorsements for the office. That might not be possible for every school board and city council seat, but it should certainly be doable on the big ones – and it would reveal political leanings that readers could take into account.)

The yard signs were interesting, incidentally. Instead of having one design, different groups did their own. We Are Ohio had this one:

The firefighters had this one:

And so on. I must have seen ten different mass produced signs, each with different colors, lettering, and so on. I don’t believe that was by choice; I think each group just designed and placed their own as they saw fit. It had the effect, though, of showing opposition from many different quarters – which was very effective.

People did their own home made signs too, of course, and my favorite was this one I saw while canvassing shortly before Halloween:

While it’s been lots of fun to dance on the grave of Issue 2, there are some cautionary notes. The big one is that John Kasich is still the governor of Ohio, and will be for three more years. In the wake of the defeat outlets were describing his tone with words like humbled and conciliatory, but sorry – I’m not buying it. This is a man with a visceral contempt for working people, and his Jerk Meter goes all the way to 11. He just got humiliated in front of the entire nation, and anyone who thinks he will respond with anything other than doubling down on his intransigence hasn’t been paying attention.

The most revealing part of his speech, with its supposedly new tone, was this: “There is no bailout because frankly, there’s no money.” So there is what’s next, people. He’s going to plow ahead with austerity and make Ohioans pay for defying his will. That’s how he rolls. And while it would be great to think he’ll take the advice of delightfully clueless wingnuts and just push ahead with trying to pass a tweaked version of Senate Bill 5, I think he’s got enough of an instinct for self preservation to avoid another frontal assault on unions. But he’ll keep looking to grind down the 99% by other means.

And really, for as great a victory as this was, it was still just a defensive one. We beat back an attack from the right; we didn’t advance any kind of new policy. If Issue 2 ends up being a singular event, its significance will be pretty substantially diminished.

Similarly, if the energy that it created is simply swung around and harnessed into re-election campaigns, its vitality will be sapped. Ohioans worked around politicians because they’d lost faith in politicians’ ability to act decisively in their interest. If all of that energy gets funnelled into re-elect Tim Ryan, re-elect Sherrod Brown, re-elect Barack Obama, look for it to diminish.

The reason it was so huge and resonated with so many people was because it allowed them to participate in setting the agenda – in changing the law, not just the actors. Finding a way to maintain that and to continue putting it to that use will be the real challenge going forward.

One of the reasons the Occupy movement has captured people’s imaginations is precisely because it bypasses a system that many believe to be broken (or even actively hostile to their interests). That’s what We Are Ohio had going for it, too. There are lots of people looking at the political implications of Tuesday’s result, but those echoes are much more remote than positive policy changes. John Kasich’s low approval rating won’t heat anyone’s house this winter.

The long-term implications of the citizen veto will be great if the effort transforms into a separate political actor; one that works with direct measures such as recalls and ballot initiatives to advance policies that benefit the rest of us. Since Kasich has already announced his intention to force more misery on the non-wealthy, here is an example of how that new political action could work next year: A state income tax of 15% starting at $1,000,000. No money available, governor? We’ll find some for you. Now hire some damn teachers.

That is something which would be of direct, immediate benefit to almost every resident, would involve the same kind of civic engagement Ohioans showed this year, and is something we could vote on at the ballot box. It could also be of enormous benefit to the politicians who want to declare themselves allies of the 99%. There would be plenty of opportunity for Ryan, Brown, Obama, etc. to lustily declare their support for the issue and thereby reap the political rewards. Citizen-driven measures and political exigencies do not have to be mutually exclusive.

But going with that model does flip the relationship between the two; it makes those running for office get behind the efforts of citizens, not the other way around. It also allows positive changes to get advanced, and quickly. And it would mean we could finally stop fending off punches and start throwing a few of our own. If that happens, then the citizen veto of Senate Bill 5 will not just be a victory on a single issue, but a herald of an entirely new politics.

Cross posted from Pruning Shears.