Appalachian Basin

Anti-Fracking Community Bill of Rights Campaign Threatens Ohio Towns with Bankruptcy

Last week, Ohio “ban fracking” groups announced they have turned in petitions to their county boards of elections regarding so-called Community Bill of Rights efforts. These “bills of rights,” of course, are nothing more than illegal fracking bans disguised with demagoguery and anti-corporate rhetoric. While the boards will need to ratify the petitions for them to take effect in Medina, Athens, and Meigs Counties, one thing is clear: the Community Environmental Legal Defense Fund (CELDF), a Pennsylvania-based anti-fracking group, has set its sights on bankrupting these counties at any cost.

CELDF’s founder said,

if a town goes bankrupt trying to defend one of our ordinances, well, perhaps that’s exactly what is needed to trigger a national movement.” (emphasis added.)

As scary as this should be to any elected official tasked with managing taxpayer dollars, what’s worse is the outright rejection of constitutional rights by CELDF.

Boston College law professor Kent Greenfield stated that the “bill of rights” is “flatly unconstitutional” and cautioned that in the absence of constitutional rights, that these ballot measures would not merely apply to fracking, but instead could result in sweeping implications for a host of other issues.

It’s hard to believe educated voters coulld support these unconstitutional efforts that could make their way onto a ballot, especially when there’s so much evidence to question the legality of such measures.

Indeed, according to a recent Reuters article, CELDF – which has been responsible for many local fracking bans that have been deemed illegal – has never won a case that went to court.

Ohio has certainly offered a multitude of legal scrutiny on this subject already, as the matter has been challenged all the way to the Ohio Supreme Court. Ohio’s top courts, as well as many others, have determined that these ballot measures are in fact unconstitutional. In fact, following a recent Ohio Supreme Court decision – Bass Energy v. Broadview Heights – Cuyahoga County Court Judge Michael Astrab noted that the state’s home rule law gives municipalities some freedom to govern themselves, but does not allow them to exercise “police powers” that conflict with state law. But that hasn’t stopped CELDF’s misinformation campaign.

The reality is that respect for the law and taxpayers simply does not come into play when CEDLF comes to town. If it did, would CELDF be alleging that towns, counties, and villages can legally challenge state and federal authorities, and even the U.S. Constitution?

There’s a reason why CELDF has little concern about local taxpayers: it’s not CELDF who will be footing the bill for the legal challenges. Take for example the city of Lafayette, Colo., which has paid $60,000 to date defending its 2013 CELDF-authored Community Bill of Rights. Other victims include Mora County, N.M., one of the poorest counties in New Mexico and which is now saddled by thousands of dollars in fees, and Grant Township, Pa. which has also spent several thousand dollars of its $250,000 annual budget, with no end in sight.

Mora County, N.M., resident Frank Splendoria said this about CEDLF and the local ban passed in his community:

“It was totally foolish to begin with, to even try this. How do you pass an ordinance that’s going to override the state and the federal constitution? I don’t know if they were playing us in Mora County as suckers or they were sincere in their beliefs. I would probably tend to the former rather than the latter, given that Mora County was the first county to try this and failed miserably at it. I don’t know where we would find the money. If you look at the county’s budget, they barely have enough money to provide the bare essential services … (The ban) hasn’t made any sense to anyone with any sense to begin with.” (emphasis added)

In fact, the five communities who have adopted CELDF written ordinances, like the ones circulating in Ohio, have all had the ordinances challenged in court. The strategy and lack of transparency behind these ballot measures is troubling to say the least. Other anti-fracking groups have acknowledged as much, going so far as to distance themselves from CELDF and admitting that the ballot initiatives are “too risky for local communities enacting the ordinances.”

Perhaps that’s why the voters of Youngstown rejected a Community Bill of Rights measure four times, each time with a larger margin. That’s because the CELDF-authored Community Bill of Rights includes language that impacts business and industry of all shapes and sizes, and even calls into question Ohioans’ ability to drive to work. The Community Bill of Rights is not just about fracking; it’s an attack on anyone who dares to own or manage a business, large or small.

Most CELDF authored ballot measures include three key provisions that create all kinds of consequences for individual liberties, business and industry development, and open up localities to costly and inevitable lawsuits. The measures all:

  1. Invalidate state and federal laws
  2. Bestowing personal “rights” on “natural communities and ecosystems”
  3. Any person who acts as a representative of the community, in any capacity, elected or not-including ministers-are subject to recall and shall be held legally liable in an official capacity for any violations of the (illegal) charter

The Youngstown Vindicator summed it up best after the fourth consecutive defeat of the ballot measure last year:

“We have presented every argument we can think of against the charter amendment, and while the voters have made up their minds, the advocates continue to turn a deaf ear to government and business leaders who have warned of the economic fallout if the Community Bill of Rights is enshrined in the Youngstown Home Rule Charter. A reasonable person — with emphasis on the word reasonable— would conclude, therefore, that the outcome of the general election should be the final word on this self-serving issue. After all, the people have spoken, over and over.” (emphasis added)

As the Boards of Elections in Athens, Medina, and Meigs counties deliberate the merits of these new county ballot measures, they would be wise to take into account the full cost of these anti-economy “bills of rights.” This is, after all, a move that would have devastating consequences for these communities – and for which the group responsible (CELDF) would refuse to hold itself accountable.


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