Ohio Secretary of State Determines That Local Ballot Initiatives Against Oil and Gas Development and Exploration-Related Waste Disposal Will Not Be on Ballot; Citizens’ Groups Appeal

Ohio’s Secretary of State, Jon Husted, has ruled against three ballot proposals which sought to create county-wide bans on certain oil and gas related activities. As a result of Husted’s ruling, the ballot proposals, from Athens, Fulton, and Medina counties, will not appear on the November ballot.

The proposals sought voter approval to amend county charters to create a county-level “community bill of rights,” based on a template developed and being advocated across the country by a Pennsylvania-based environmental group known as Community Environmental Legal Defense Fund. 

In all three counties, the proposed initiative would have made it illegal to “[d]eposit, store, treat, inject, dispose of, or process wastewater, produced water, ‘frack’ water, brine or other substances, chemicals or by-products that have been used” in horizontal hydraulic fracturing to extract oil and gas. The proposal would have also banned the “procurement or extraction of water from any source” for use in hydraulic fracturing.

In two of the counties, the petitions went a step further, prohibiting all oil or gas exploration or extraction within the counties (current producing wells would be grandfathered) and banning the “siting or operation of equipment to support extraction of oil or gas, including pipelines, compressors, or other infrastructure.”

The Secretary of State found that the petitions failed to comply with statutory and constitutional requirements for an alternate form of government and also were preempted by state law, which has placed exclusive jurisdiction over oil and gas development with the state and not with the local governments.

“The issue of whether local communities can get around state laws on fracking has already been litigated,” Husted said. “Allowing these proposals to proceed will only serve a false promise that wastes taxpayers’ time and money and will eventually end in sending the charters to certain death in the courts.”

On August 19, 2015, several individuals who support the ballot measures in each of the three counties brought a lawsuit in the Ohio Supreme Court seeing mandamus to compel the Secretary of State to place the initiatives on the November ballot.

A copy of Husted’s decision concerning the petitions is available at the Secretary of State’s website: http://www.sos.state.oh.us/SOS/Upload/news/2015/DecisionRC30795Protests.pdf

A copy of the appeal is available at the Ohio Supreme Court website: http://www.sconet.state.oh.us/pdf_viewer/pdf_viewer.aspx?pdf=773902.pdf

Kathy Milenkovski is an energy and environmental lawyer. She helps clients comply with complex state and federal regulatory programs and represents clients in litigation, appearing in administrative, state and federal courts.
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