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Fracking vs. Democracy: State laws subvert home rule and property rights

Henry Henderson

Posted March 24, 2013

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One of the most fascinating and disturbing issues that comes up again and again around fracking is the multitude of exemptions and entitlements that have been handed to the industry at the expense of citizens. Exemptions from the federal drinking water law. Exemptions from citizen challenges. Exemptions from local land use standards and licenses that have protected private property and neighborhoods.

These are all troubling. But one of the most alarming is the fact that overzealous protections for the limited economic interests of oil and gas companies are prioritized over the broad property rights that Americans have enjoyed for most of the nation’s history (based in part on ideas of law, property and the public interest going back to the Magna Carta).

In short, rules on the books in many states—which take away the public’s ability to protect their own property and neighborhood integrity—actually subvert the very fabric of our democracy. It is dangerous stuff that we are seeing emerge in state laws, reducing citizen rights and insulating industry from accountability. A focus on this troubling trend is becoming more and more a focus of our advocacy.

Take Ohio, where it is bad enough that the state has instituted weak rules and tried to help shield industry from disclosing to the public what chemicals they use in fracking.  Perhaps less obvious, but very serious, is the provision in Ohio law that basically robbed communities of their home rule authority on drilling issues.

Last week, an appellate court ruling prevented the City of Munroe Falls from enforcing its own ordinances on land use and licenses. The court sided with oil and gas companies that are going to frack, allowing them to drill without complying with local laws. City law required oil and gas companies  to obtain a city drilling permit, comply with zoning regulations, obtain construction permits, post- performance bonds, and participate in a public hearing that would allow citizens to understand what is being proposed to happen in their community, before drilling and fracking occurs within the city’s boundaries. These laws are standard, traditional and time honored procedures that nearly every other industry must follow.

These kinds of traditional provisions are at the core of ordered liberty and honed in the course of American history to assure respect for the property of others and the dignity of citizens who care for their homes and community. Yet, when faced with these requirements from the city, rather than obey the law, the oil and gas industry opted to sue the city to move forward as they pleased. And the State’s legislature and courts let them get away with it. That is wrong. One could even say it is not the American way. And sadly, it is not unique to Ohio.

Here in Illinois, we are in the midst of a fracking furor. With a rush to lease lands underway and no laws to protect people in this State from the known risks associated with fracking and horizontal drilling, a strong bill is working through the State Legislature. We helped negotiate the rules in the bill in order to make sure it would give people in this state who are presently exposed to dangerous risks as many increased protections as we could get on the books immediately. It is far from comprehensive, but because fracking is already legal here, it provides some safeguards where none currently exist.  Among these are explicit protection of citizens’ ability to protect their property by taking part in the permit review process and access to the courts to enforce the law, unlike in Ohio where these rights are barred.

That said, we think Illinois is a long way from being ready to start fracking. The issue of home rule and the integrity of local land use laws is one of many that still desperately need to be sorted out. The archaic Illinois Oil and Gas Act on the books only allows limited home rule authority to protect from the dangers associated with oil and gas extraction. Current Illinois law would allow a similar situation to arise as we saw in Munroe Falls, Ohio this week.

We cannot accept that here, in Ohio, or anywhere else. The Illinois Oil and Gas Act needs reform to address this shortcoming, and to better ensure the safety, economic protection and democratic integrity of the Land of Lincoln.

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TonyMar 25 2013 02:33 AM

So, if Local communities can override State Law.....can local landowners in turn ignore Local Community ordinances?

Your logic suggests that is applicable and that anyone wishing to allow any sort of activity on their own property can do so...and we all realize. That will not work. How far does one take Home Rule ultimately?

Michael BerndtsonMar 25 2013 08:49 AM

The ever expanding circle (private property - city - state - federal) argument pretty much justifies the reason why Bush/Cheney and O&G bypassed Federal laws and regulations back in the aughts. So States could fully control the drilling process, unencumbered by the Fed and those pesky municipalities and individual property owners. This also explains why Tom Ridge (Bush's HSA guy and former Penn Gov.) was hired as an extremely (no scratch that - insanely) well paid consultant to promote shale oil and gas fracking in the Keystone State. Well, that and the promotion of Freedom(TM).

Stan ScobieMar 25 2013 01:15 PM

One of the strategic and dogmatic statements of the landowner leasing coalitions in NY is that a property owner should be allowed to drill on her land since she owns it and has been paying taxes, etc.

This notion, however, runs headlong into NY law that says that landowners can be "forced" into drilling units in an eminent domain fashion, but without any recourse, if the driller controls at least 60% of the land in the proposed unit.

Following the logic of "it is my land and I can do whatever I wish." a landowner who does not desire to be part of a drilling operation, for any of a variety of reasons, would have no choice.

This unilateral application of land use and hydrocarbon extraction law disproportionately favors the drillers over the citizen-landowner.

Most O&G states have similar "forcing" provisions.

Stan Scobie, Senior Fellow, PSE Healthy Energy. New York.

Henry HendersonMar 25 2013 04:14 PM

Thank you for your comments, which further dial in on the issue of allocation of authority among decision makers, the central focus of my original posting.
The point of my blog is that there is a critical balance for decision making, which has deep consequences for human health, safety, community security and the respect for citizens that goes to the heart of our democratic values.
We all have a shared interest in respecting the long legal and political history that has worked out the arrangements to balance federal, state, local and private voices and protect public and individual interests.
This critical balance has been dangerously tampered with (at the behest of the oil and gas industry), pre-empting traditional local land use and police powers in Ohio, Illinois and elsewhere in the United States. The result is a radical imbalance that puts people and democratic values in harm’s way.
The comments of "Tony" above suggest a radical imbalance of a different sort---smaller and smaller levels of ultimate decision-making authority: federal preempted by state, state preempted by local, local preempted by private, so that no public interest remains.
That is not my argument. Rather, I believe that a centuries’ old tradition of careful decision-making has created a structure that balances federal, state and local levels of authority, which respects the expertise of diverse voices, and has instituted a phased decision-making structure to balance public and private interests regarding important practices such as oil and gas extraction, our energy economy and self-government.
A state's preemption of an essential part of this structure, as Ohio and Illinois have rammed into place, dangerously messes with a system that has worked reasonably well for our private interests, public values and the safety of our Republic. Tampering with this structure as Ohio and Illinois have done puts all of us at risk. And it can definitely victimize private property owners whose interests are “out balanced” by the oil and gas industry.

RuthMar 29 2013 08:23 PM

I have been doing great deal of research on fracking and the lack of individual rights. The individual basically has no way to protect themselves from these companies. I simply can not believe what is happening in our country. The slick water fracking is relatively new, 1998, and as studies have shown can and has caused great harm to water supplies, clean air and human helalth yet very few politicians are standing up to protect the health of the environment and people. I live in Michigan which has 20% of the world's fresh water and more wells for water than any other state and these companies

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