As fracking spreads in the United States, voters in more and more cities are banning drilling, waste disposal and other practices associated with deep-shale oil and gas wells.
But those bans have prompted lawsuits filed by state governments or the oil and gas industry raising a legal question: Who gets to say where fracking can happen?
“The Ohio legislature made it very clear that the state, not the local governments, controls this type of activity,” said John Keller, a Columbus lawyer who is representing Beck Energy Corp. of Ravenna in a lawsuit filed against the city of Munroe Falls in Summit County.
“Just like the federal government can take control of certain activities, such as immigration, the state can pre-empt local governments from certain activities, one of which is oil and gas drilling,” Keller said.
The Ohio Department of Natural Resources issues permits for oil and gas drilling, injection wells and other activities related to the field. But community leaders and environmental activists say the law is not that clear.
The measure in Munroe Falls doesn’t outright ban oil and gas development, but it uses zoning laws to require a wider berth around the wells than what is required under state laws.
The Ohio Supreme Court heard arguments in that case this year but has yet to issue a decision.
Five cities in Ohio have voted to ban any type of oil and gas development, including fracking — Broadview Heights, Oberlin, Yellow Springs, Mansfield and, during this most recent election, Athens.
Bans have failed, too. On Nov. 4, voters in Youngstown rejected a ban for the fourth time. Ballot issues in Gates Mills and Kent also were voted down.
Fracking is a process of drilling into shale rock deep underground, then blasting a mixture of water, sand and chemicals to fracture the rock and free oil and gas. Some of that mixture returns to the surface with the oil and gas. The process has led to a dramatic increase in oil and gas production in western Pennsylvania and eastern Ohio, as well as in North Dakota, Colorado and other states.
Other companies drill deep storage wells to bury fracking waste. Those injection wells have been tied to earthquakes out west and in Ohio.
The Mansfield ban, passed in 2012, aimed to block two injection wells planned for the city’s industrial park. ODNR had green-lighted the injection wells.
John Spon, the city’s law director, said officials there worried that the wells would discourage other companies from moving to the industrial park.
“No company would be willing to invest millions of dollars to establish a new plant in an industrial park when that new plant would be located right next to an injection-well operation which would place the new plant at risk,” he said.
The injection-well company, Preferred Fluids, initially fought the ban but eventually backed off.
In Broadview Heights, a suburb of Cleveland, voters passed a fracking ban in 2012.
“We’re saying we have a right to prohibit this in our community, if a majority of the residents don’t want it, because we have the right to local self-governance, and we have the right to clean air and the right to clean water,” said Tish O’Dell, a Broadview Heights resident and an Ohio organizer with the Community Environmental Legal Defense Fund — the organization behind the 160-some bans that have passed in the United States.
A group in Columbus is collecting signatures in hopes of placing a ban on oil- and gas-related activities on the ballot next year.
Bass Energy and Ohio Valley Energy have sued Broadview Heights over its ban. That case is scheduled for trial in Cuyahoga County Common Pleas Court in March.
Voters in Denton, Texas, also passed a ban on Nov. 4. The Texas General Land Office, the state agency that oversees oil and gas development there, and the Texas Oil and Gas Association, which advocates on behalf of the industry, filed for a court injunction to block the ban.