Appalachian Basin

*UPDATE* Athens Community ‘Bill of Rights’ More a Bill of Goods

UPDATE (8/16/2013; 9:00am ET) In a packed court room, the Athens Board of Elections voted unanimously to remove the so called Community “Bill of Rights” from the November ballot.

As we pointed out earlier, the Athens Community “Bill of Rights” had more holes than swiss cheese.  Not only was it completely unenforceable, it also attempted to thrust the City of Athens’ authority beyond city limits by instituting a 20 mile ban. This is something neighboring communities, and even the state of West Virginia, would not have been happy about.  Attorney John Levell pointed out the audacity of this attempt by describing the effort as the City of Athens trying to rule the world.

In addition to the 20 mile ban, attorneys John Levell and Robert Rittenhouse argued that the “bill of rights” included precatory language, removed provisions set forth by the city’s wellhead protection plan, and confused voters on the definition of shale gas.

The Athens Board of Elections couldn’t deny this community “bill of rights” did nothing more than make some residents feel like they participated in a public opinion poll.  They thankfully recognized this preposterous ballot proposal and voted it down.

–Original Post–

Although Utica Shale development is not being seriously contemplated in Athens, the anti-development crowd is trying all that they can to remain part of the conversation.  The latest stunt: they have come up with a community “bill of rights” to make sure they have relevance when discussing Utica Shale.  The initiative will be considered on the November ballot later this year.

A similar measure was “soundly defeated” in Youngstown earlier this year, no doubt owing to its dubious basis.

But if you actually read this latest one, it seems the Athens Community Bill of Rights Committee spent more time trying to appear informed about the issue than actually producing a usable document.  Do they actually think the Ohio and U.S. Constitution should not apply to the city of Athens?  Apparently so.

In an effort to show the poor execution of rule by chaos, let’s take a closer look at the document. Since the whole measure is full of inaccurate statements about the oil and gas industry, we are only going to focus on some of the more ludicrous declarations made by the authors.

BOR: Whereas, The Ohio Revised Code, Title VII, Chapter 743, Section 25 states (in part): “No person shall pollute a running stream, the water of which is used for domestic purposes by a municipal corporation, by putting therein a putrid or offensive substance, injurious to health. The director of public service of a city or board of trustees of public affairs of a village shall enforce this section. The jurisdiction of a municipal corporation to prevent the pollution of its water supply and to provide a penalty therefore shall extend twenty miles beyond the municipal corporation limits;” and

FACT: Companies are prohibited from discharging waste into streams, so the issues listed here – presumably targeting the oil and gas industry – are either redundant or irrelevant (if not both).  When building a pad for shale development, companies closely follow the Clean Water Act so as to not disturb wetlands and streams.  These permits are granted by the Ohio EPA, an agency much more apt at understanding the industry than some anti-development folks in Athens.

In addition, the disposal of oilfield brine is only allowed in Class II injection wells and never allowed to be discharged into a stream or any other waterway.  If companies did that, they could be brought up on both state and federal charges for violating the federal Safe Drinking Water Act.  Moreover, Class II injection wells, and the stringent regulations that govern them, ensure that brine is disposed of safely and responsibly.  In the more than 40 year history of managing the Class II injection well program, the Ohio Department of Natural Resources (ODNR) has not had one single case of groundwater contamination from Class II wells.

Also, this new “bill of rights” would effectively prohibit the use of substances used in the development of oil and gas. The problem with that?  Many of the chemicals used in hydraulic fracturing are found in products we use every day. Pool cleaners, salts, detergents found under the kitchen sink – if the Athens Community Bill of Rights Committee gets its way, they’ll all be banned. Apparently this organization thinks it’s an unalienable right for them to deny others the ability to have clean dishes. Because principles, or something.

BOR: It shall be unlawful for any corporation, or any director, officer, owner, or manager of a corporation to use a corporation, to store or process waste water, “produced” water, “frack” water, brine or other materials, chemicals or by-products used in the extraction of shale gas and oil extraction.  It shall be unlawful for any corporation, or any person using a corporation, to deposit those materials into the land, air or water within the City of Athens or its jurisdiction.

FACT: With this provision, the possession of guar gum will now become illegal in Athens.  This is bad news for people who like to eat in Athens, since guar gum is used in countless types of food.  Who would have ever thought the making of ice cream or pastries would be punishable offence?  Also, any ceramics classes will be put on hold, since silica sand would also be illegal under this clause. Children’s sandboxes often use a form of silica sand, too – so no more playgrounds!

BOR: It shall be unlawful for any corporation, or any director, officer, owner, or manager of a corporation to use a corporation, to engage in the siting of extraction, production or delivery infrastructures within the City of Athens or its jurisdiction.

FACT: The people who wrote this part of the measure forget that households in Athens get the majority of their heat from natural gas, and the only way to transport this natural gas is by pipeline. Hopefully winter isn’t cold this year, or ever again.

Also, Ohio University uses a natural gas boiler to provide electricity to the campus, yet another project that uses pipelines. How many parents would want to send their kids off to a college where they won’t have heat or electricity? Good luck to Ohio University on ever having another student come to the campus.

BOR: Any City resident shall have the authority to enforce this Ordinance through an action in equity.  In such an action, the resident shall be entitled to recover all cost of litigation, including, without limitation, expert and attorney’s fees.

FACT: In this provision, Athens residents would be entitled to making arrests while being fully compensated for the prosecution of the case, even if the case is frivolous. In today’s court systems, prosecuting attorneys are the ones who bring criminal cases before the court, not private citizens.  In addition, the provision never specifies who would actually be held responsible for compensation.  Would it be the company or the county?  No one really knows because it’s not spelled out – highlighting yet another fundamental problem with legality and enforcement (more on that later).

(f) Corporations in violation of the prohibitions enacted by this ordinance, or seeking to engage in activities prohibited by this ordinance, shale not possess the authority or power to enforce State of federal preemptive law against the people of the City of Athens, or to challenge or overturn municipal ordinances adopted by the City of Athens, when that enforcement or challenge interferes with the rights asserted by this ordinance or interferes with the authority of the municipality to protect the health, safety, and welfare of its residents

FACT:  Under this provision, companies would not be allowed to challenge an unconstitutional doctrine because … Athens said so. The Athens Community Bill of Rights Committee believes that state and federal laws are not allowed to circumvent city provisions. If that seems silly or strange, it’s because it is. If that seems unconstitutional (remember, the U.S. Constitution is the supreme law of the land, and has been since the 18th century), it’s because it is. If that seems like something that would not survive in even the friendliest of courts, it’s because it never would.

BOR: The provisions of this Law are severable.  If any court of competent jurisdiction decides that any section, clause, sentence, part, or provision of this Law is illegal, invalid, or unconstitutional, such decision shall not affect, impair, or invalidate any of the remaining sections, clauses, sentences, parts, or provisions of the Law.  The City Council of Athens hereby declares that in the event of such a decision, and the determination that the court’s ruling is legitimate, it would have enacted this Law even without the section, clause, sentence, part, or provision that the court decides is illegal, invalid, or unconstitutional. 

FACT: There’s not much to say about this section, except for the fact that the constitutional scholars at the Athens Community Bill of Rights Committee are already predicting that parts of their proposal will be struck down as “illegal, invalid, or unconstitutional.” If you have to account for that fact from the very beginning, then perhaps it wasn’t that well thought out, was it?

Thankfully, many others are raising concerns about this “bill of rights” for Athens.  Some city residents, for example, took one look at this ballot measure and realized it did not pass the smell test.  Last week, Robert Rittenhouse of Lavelle and Associates — on behalf of Eleanor Barstow, Peter Couladis, Michael Hunter, Carl Denbow, William Lavelle, and Patricia and Roger Grueser — contested the validity of the measure. According to NPR and the Athens Messenger:

Rittenhouse told The Messenger that the residents he’s representing are hoping to stop the initiative in its tracks before it makes it to the ballot — costing taxpayers money to vote on a law that the city’s law director’s office has no intention of enforcing.

Be sure to read the whole story, which outlines a laundry list of problems with the measure, over and above what we’ve highlighted here.

Hopefully the Athens Board of Elections will side with Mr. Rittenhouse and concerned citizens of Athens, instead of allowing this unenforceable, activist-driven mess to get on the ballot in November.

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