Ohio Village Adopts State's First "Community Bill of Rights" to Prevent Shale Development

 

Recently, the Yellow Springs Village Council voted to adopt a “Community Bill of Rights” ordinance banning shale gas drilling and related activities in the village. The Bill of Rights declares the fundamental rights of residents to clean air and water, and to protect the rights of nature. 

 

Yellow Springs is the first municipality in Ohio to enact a local Bill of Rights and has directed toward prohibiting shale gas drilling and related injection wells. While Yellow Springs is located in southwest Ohio, away from the Utica and Marcellus shale plays in the eastern part of the State, the geological formations there are ideal for storing fracing wastewater.

Yellow Springs’ Bill of Rights is just another step toward a showdown between local versus state law in the regulation of oil and gas operations. Like our neighbors in Pennsylvania and New York, more Ohio communities are taking steps to regulate oil and gas within their borders and are putting proposals to voters this election day.  

Ohio law, however, grants sole and exclusive authority to the Ohio Department of Natural Resources (“ODNR”) to regulate oil and gas activities, and provides those activities are matters of “general statewide interest” requiring “uniform statewide regulation.” Further, Ohio Revised Code Chapter 1509 and the rules adopted under it constitute a “comprehensive plan” for the regulation of oil and gas. Accordingly, ODNR’s position has been that Ohio law gives it the sole authority to regulate oil and gas wells, from the issuing of permits for new wells through the time inactive wells are plugged. 

Inspired by the limited success of municipalities in Pennsylvania and New York, Ohio local governments continue to attempt to regulate through ordinances, zoning, and now a bill of rights, to attempt to limit oil and gas operations in their communities. 

How successful these local regulations will be may depend upon a court decision in Preferred Fluids Management, LLC v. the City of Mansfield (N.D. Ohio Case No. 1:2012cv01804). Preferred is seeking to construct two injection wells in an industrial park in Mansfield, but was blocked by local ordinances prohibiting such wells. Preferred is alleging that the Mansfield ordinances are in direct conflict with the state’s exclusive and comprehensive authority over oil and gas operations.  

A hearing is set for this case on Oct. 19 in Cleveland. Both landowners and oil and gas operators will keep an eye on this case and the polls next month in what could affect shale development in Ohio. 

The Yellow Springs’ Bill of Rights, however, remains significant in its own right. It offers a new wrinkle to the state versus local power debate as it grants rights directly to the citizens, and not to a local government. How Ohio courts distinguish between local governments and citizens in the context of oil and gas activities, if at all, is another developing issue.

Marcellus Shale: The Next Gas and Oil Boom ?

If you thought the earth beneath your feet was solid; think again.  Land owners and energy industry prospectors are busy in Eastern Ohio, West Virginia, New York and Pennsylvania looking for pockets of natural gas embedded in the Marcellus Shale buried deep beneath the surface.  Named for the town where it all started, Marcellus, New York, a once difficult shale to drill has been transformed by advances in drilling technologies making it possible to drill and capture the natural gas deposits hidden within.  A virtual natural gas rush has ensued and energy companies are leasing mineral and subsurface rights from land owners throughout the Marcellus Shale region.  

As we all know "there is no free lunch."  The technique used to force the natural gas out of the shale and up to the surface is called "fracking."  It is a process by which water, chemicals and sand are pumped into the earth.  In the process, claims of contamination of the underground water resources are being raised.  Be vigilant and do not just sign the form lease the energy company presents to you.  Make sure you give attention to the potential damage and future costs the drilling can cause.  Everyone is entitled to benefit, including the environment !