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Saturday, February 21, 2015

Home Rule in Ohio Takes a Big Hit

Art credit: salsa3.salsalabs.com

Here’s the Akron Beacon Journal editorial at Ohio.com here:

Oil and gas interests prevail again in Ohio
By the Beacon Journal editorial board 
Published: February 20, 2015 - 10:26 PM
The oil and gas industry won a narrow victory this week over the city of Munroe Falls. The Ohio Supreme Court ruled 4-3 that the city’s local permitting and zoning ordinances are pre-empted by a 2004 state law giving control over drilling to the state Department of Natural Resources. Because Beck Energy Corp. has a state permit, it can proceed to drill on a site in Munroe Falls.
In its ruling, the majority effectively blocked local governments from acting as a voice for citizens legitimately concerned about the effects of oil and gas drilling. The new wells being drilled in Ohio represent nothing less than heavy industrial development, well within the boundaries of local control. Horizontally drilled and hydraulically fractured, each new oil and gas well can use millions of gallons of water mixed with sand and toxic chemicals.
In stopping Munroe Falls, the court missed an important opportunity to restore a balanced approach to industry oversight. In 2004, the state went too far in seizing control over oil and gas drilling from local governments, the legislature under the influence of the industry’s powerful lobby. That influence continues. The legislature is unable to pass even a modest increase in the state’s severance taxes to fairly compensate citizens for the one-time extraction of resources.
In a thoughtful dissent, Justice Judith Lanzinger noted that the 2004 state law did not expressly prohibit local zoning regulations on oil and gas drilling, arguing persuasively that the law leaves room for state and local input. She pointed to several examples in which the legislature set up a regulatory mechanism, then specifically excluded local control through zoning.
Important to her thinking is preserving the exercise of home rule powers through zoning, local governments acting to reflect citizens’ concerns and protect the general health and welfare of the community. That is in contrast to the state’s role, to deal with the highly technical aspects of drilling. Lanzinger pointed to other states, among them Colorado, Pennsylvania and New York, where the courts have found that state regulations and local zoning can work together. In other words, some local control over drilling does not necessarily conflict with state law.
Lanzinger thus invites the legislature to bring clarity to the situation, spelling out more precisely how local governments could use their home rule power to play a meaningful role in overseeing what can be a dangerous and environmentally damaging activity. She rightly describes the state now as “the thousand-pound gorilla.”
At the Statehouse, the oil and gas industry certainly has gotten its way. It lobbied hard for the Department of Natural Resources to take control of oil and gas drilling. Gov. John Kasich has tried unsuccessfully for four years to gain an increase in severance taxes. Perhaps the ultimate irony is that while Republicans control of all branches of state government in Ohio and often pay homage to local control in principle, many of them are most willing to crush it when it gets in their way.

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