Appalachian Basin

Niles City Council Declares Itself Closed For Business

Last night the Niles City Council voted to adopt a community “bill of rights” in order to block shale development from their town.  The vote was taken after a single reading without business or industry comment, or apparently any education on the issue at all.  Interestingly, there is not even a Utica Shale well being proposed in Niles, but rather an injection well.

Instead of taking the time to vet the community “bill of rights,” learn more about the industry or even know if what they passed was legal, the city council took it upon themselves to pass the ordinance anyways.  It must be stressed: this ordinance is merely ceremonial and has no actual legal authority.

With the passage of HB 278 in 2005, the Ohio Department of Natural Resources (ODNR) retains sole and exclusive authority over regulating the oil and natural gas industry in Ohio.  The reasoning behind the passage of HB 278 is that permitting and regulating of oil and gas activities should be unified.

As an example of why this is important, think about your state driver’s license. Does it make more sense to have one uniform set of requirements by which each driver must abide in the state, or should each county (or even each city and town) be required to issue its own permits and impose its own restrictions? Perhaps a better question is: How many licenses would you have to retain (and pay for!) just to drive across the state?

ODNR also employs over 100 oil and gas specialists to permit, regulate and enforce rules covering the industry.  These include hydrologists, hydrogeologists, geologists, environmental experts, engineers, and many other professionals.  In other words, people who rely on science, not activist hyperbole (on either side, for that matter).  In addition to having experts on staff, ODNR retains the full backing from the Attorney General if they would need to pursue action against violators. Niles has neither the authority nor the wherewithal to bring the AG into a case.

While the ordinance passed does not have any authority over the oil and gas industry, an activist-written (and deliberately vague) community “bill of rights” always provides a bevy of unintended consequences.  Heaven forbid a trucking company wants to haul water for an oil and gas company, because the Niles council members just told every such company that they aren’t welcome in their town.

Unfortunately this community “bill of rights” mirrors the Athens “bill of rights,” which was recently thrown off the ballot for being unenforceable by the board of elections in Athens County.  Youngstown voters also soundly defeated a similar measure. Maybe that is why the Niles measure was passed by the city council (with little to no public notice) and not put to the voters.

Taking a closer look, it’s clear that the anti-development crowd that submitted the community “bill of rights” to the city council just copied and pasted provisions from other initiatives and gave it to all to the Niles City Council members.

For example, in the definitions section of the ordinance they provide a definition of production facilities.

“Production Activities” shall include, but not be limited to, the siting of compressors; drill rigs; pipelines; waste water storage, treatment or processing facilities; temporary housing; and any extraction, production or delivery infrastructures related to or supporting  extraction of shale gas and oil.

Oddly enough, there is not a single mention of production facilities in the ordinance other than the definition.  Why define a term if you are not going to use the term in your ordinance?  It seems kind of strange, but then again, the whole enterprise is clearly divorced from reality.

Let’s take a deeper look at this ordinance (something the city council clearly didn’t do):

BOR– Whereas, this ordinance bans any new  extraction of shale gas and oil, along with associated activities, including the disposal of fracking wastes into injection wells within the City  because these activities violate the civil rights of Niles residents, and because they threaten the health, safety, and welfare of residents and neighborhoods of Niles;

FACT– This is where a little industry education could have gone a long way with the city council.  The assertions they are making regarding health are not only unsupported by science, but also demonstrate an inherent lack of research into the matter.

  • Over 1.2 million wells nationwide, as well as 80,000 wells in the state of Ohio alone, have been hydraulically fractured without one single incident of groundwater contamination.  This has been repeatedly affirmed by the U.S. EPA and state regulators across the United States.
  • In terms of air quality, the West Virginia Department of Environmental Protection’s Office of Oil and Gas just released a study this week stating there were no indications of a public health emergency or threat based on air quality monitoring data.  The Ohio EPA also found the same results from a Utica Shale well they tested last year. Regulators in Texas and Pennsylvania have come to similar conclusions after extensive testing.
  • As far as injection wells, the U.S. EPA regulates these under the Class II Underground Injection Control Program. The agency has granted Ohio primacy since 1983 for the wells in our state, and there has not been one single case of groundwater contamination from disposal wells.

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

FACT– With the passage of this ordinance, it is now illegal to possess or transport brine through the City of Niles, essentially making it a crime to follow your GPS. Unfortunately, it is not only brine that falls into this category, but literally any materials, chemicals or by-products that could conceivably be used in shale development.

Someone should call 911, because with school starting I hear there is a large cache of silica sand at the playgrounds!  And the guar found in ice cream at the grocery store! The cleaners found underneath kitchen sinks! The horror!

But in all seriousness, did the city council just (try to) give police the authority to charge people with a third degree misdemeanor for transporting sand, cement, and steel – in a state known for its manufacturing base?

BOR– Corporations and persons using corporations to engage in shale gas or oil extraction or to support any phase in the activity of shale gas or oil extraction, in a neighboring municipality, county or state shall be strictly liable for the violation of rights recognized by this ordinance, and for all harms consequently caused to natural water sources, ecosystems, human and natural communities within the City of Niles. Government agencies and municipalities that issue permits or allow activities prohibited by this ordinance shall be held liable for the violation of the rights of Niles residents, ecosystems, and natural communities if a chemical trespass results.

FACT– The City of Niles has no legal jurisdiction to prosecute corporations or persons outside of their municipality, county or state.  That’s just common sense – or at least it should have been.

BORNOW, THEREFORE, BE IT HEREBY RESOLVED by the Niles City Council, that we hereby adopt the following ordinance, which establishes a Bill of Rights for the residents and communities of the City, bans commercial extraction of shale gas and oil within Niles City because that extraction and that waste disposal cannot be achieved without violating the rights of residents and communities or endangering their health, safety, and welfare; removes certain legal powers from gas extraction corporations operating within Niles City; nullifies state laws, permits, and other authorizations which interfere with the rights secured by this ordinance; and imposes liabilities and fines for violations thereof.

FACT: The City of Niles does not have the authority to nullify state law.  The ordinance the City of Niles is attempting to enforce is in direct conflict with O.R.C. 1509.02. In the event of a direct conflict, the state regulation prevails.  In other words, you can’t nullify state law. It doesn’t matter how many headlines you secure in attempting to do so.

BOR(a) Corporations which violate this Ordinance shall not be deemed to be “persons,” nor possess any other legal rights, privileges, powers, or protections which would interfere with the enforcement of rights or prohibitions enumerated by this Ordinance. Such powers shall include the authority to assert state or federal preemptive laws in an attempt to overturn this Ordinance, and the authority to assert that the people of Niles lack the authority to adopt this Ordinance.

FACT– No matter how many different ways the opposition words a community “bill of rights”, the outcome is still the same.  But once more, with emphasis: You can’t supersede state and federal laws.  The United States Constitution is the supreme law of the land, and that will never change – no matter how many times you try to reword the argument.

For an area of the state that has seen so much growth thanks to Utica Shale development, it is sad to see a city try to reverse the progress.  The city council and its residents should be embracing oil and gas development, not trying to scare it away with senseless ordinances.  Instead of putting forth a measure they could actually enforce, all they did was scare away economic development in their city.

Hopefully members of the city council will see the error in their ways and revoke this anti-business measure. After imposing it on the residents without their consent, that’s really the least they could do.

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