The fight against fracking in Ohio comes at a time when the state is approving new wells at a rapid pace. Local activists are organizing in an environment where the ground is constantly shifting under their feet - sometimes literally.
Anti-fracking activism has been influenced by developments both inside the state and beyond. At a recent public anti-fracking meeting a representative from the Community Environmental Legal Defense Fund (CELDF) described the experience of activists in western Pennsylvania several years ago.
Residents there began seeing lots of drilling sites, processing plants and other fracking infrastructure pop up. Neighborhood opposition responded through the regulatory process. Drillers needed permits, so locals educated themselves on permit writing. They enjoyed some early victories as improperly written permits were thrown out.
The wins were only temporary though. Drillers came back weeks or months later with rewritten permits that fixed the problems in the earlier ones. The new permits passed regulatory muster and the frackers moved in. At one point counsel for the companies jokingly thanked a CELDF representative for its help in putting together a bulletproof permit-writing process. As you might imagine, this was not the intended outcome.
The regulatory process may not be a suitable one for anti-fracking activists for other reasons as well. For one, regulations are not ultimately about protecting citizens; they are about legalizing harm. Regulation on, say, arsenic in drinking water is not based on the maximum amount that humans may safely consume, but on the maximum amount the industry can get legislators to allow. If they allow an amount that is unhealthy for humans or animals, those who suffer as a result have no legal recourse. The harm was permitted.
If you do not want the fracking to occur at all - if you think it is too unregulated, too opaque, and generally too hazardous - then fighting over regulation is a sucker’s game. You are not fighting over whether or not your community will expose itself to the tender mercies of the oil and gas industry, but over how much damage the industry will be allowed to do to it; and since the oil and gas industry is flooding the statehouse with lobbyists how do you think that fight will go?
Which leads to the second problem with the regulatory process: it happens at the state level, where ordinary residents have precious little access. Aside from both the specific issue of fracking and the perennial issue of the will of the majority being frustrated by the powerful, wealthy and privileged, there are dynamics at play in Columbus that tilt the playing field against local communities.
The successful effort to implement term limits back in the 90s has born its expected fruit: Legislators do not have the opportunity to build up a store of knowledge and experience on how the legislative process works. Lobbyists, under no such constraint, can learn the system inside and out, and bring that to bear. (Incidentally, the inability of legislators to thoroughly learn how the machine works also - surprise! - creates demand for legislative chop shops like ALEC.)
Far from promoting good government, term limits have hobbled it - which is how the slow erosion of home rule began. It’s easier for industries to get their legislative agenda enacted once at the state level instead of multiple times at the local level. Term limited legislators aren’t around long enough to see the consequences, so why bother thinking long term? Add to that the current state government’s mania for selling off every valuable asset it owns - and the crippling of those public institutions that it cannot outright kill - and you are left with a statehouse that is content to let the private sector call all the shots.
Columbus has gone out of its way to kneecap local communities on fracking in particular. Governor Kasich, having failed in his first clumsy attempt to strip localities of the ability to negotiate road use and maintenance agreements with industry, now appears poised to slip it in through his new energy bill. (The bill includes other giveaways to industry as well.) Kasich has also stripped communities of jurisdiction over industrial construction. At this point there is little regulatory action that towns can take aside from zoning ordinances.
So if regulation was not a losing proposition going into the anti-fracking effort, the sellout to lobbyists in the capitol and virtual elimination of home rule seals the deal. What does that leave local activists? Trying for complete bans instead of tweaking around the edges. It may sound absurdly lofty for a one light town to adopt a bill of rights for its residents, but that may be the last (and best) ground to fight on. Don’t bother with processes that postulate harm and try to negotiate how much. Don’t fight neutered regulatory agencies or politicians in the pocket of the industry. (Or ex-politicians who have become industry shills, for that matter.)
Go big instead. Say that you simply want no part of it. Insist on the right to self determination. The fracking industry has already rigged the system; trying to get it to build safely, drill responsibly or disclose its hazards plays to its strengths. But what about a document that declares the rights of citizens to have full and final say on the most pressing quality of life issues that face their communities?
Would industry lawyers be eager to go into a courtroom and essentially say, “we know you don’t want us here but we’re forcing our way in anyway”? It doesn’t seem like a winning position. Trying to get a court to overturn such a fundamental declaration would probably be wildly unpopular. While a sympathetic judge might well go along with them - and that’s a whole other post - the process itself would smoke out the industry’s cold indifference to the communities it is endangering. That prospect might just get the industry to back off. And in any event, what else have we got? As one citizen put it: “The federal government has failed us. The state government has failed us. You are our last resort.”