Ohio cities and towns cannot enact fracking bans through their zoning laws, a sharply divided Ohio Supreme Court ruled on Tuesday.
In a slim 4–3 decision, the state’s high court ruled that Ohio has “sole and exclusive” authority over oil and gas production, determining that the Ohio Constitution does not permit a local community to ban drilling approved by the state Department of Natural Resources. The fractured decision produced a concurring opinion and three separate dissents, one of which suggested that campaign cash influenced the result.
The ruling comes in response to citizens across Ohio who have raised alarm bells about what they see as harmful effects of fracking. Among their concerns: a recent study found that fracking “triggered 400 small earthquakes over a three-month period in 2013.” Another study found that fracking produced an additional 77 earthquakes in Ohio, including one strong enough to be felt by humans. There is also concern over methane gas leaking from fracking wells close to residential communities. Twenty-five families in eastern Ohio were recently evacuated after a nearby fracking well sprung a leak. Communities are also worried that chemicals from fracking will threaten drinking water — a recent Akron Beacon Journal study found that one vertical-horizontal well “required nearly 1 million pounds of liquid chemical additives.”
Due to these concerns, local legislators have tried to respond with various types of fracking bans. In Monroe Falls, for example, a municipal ordinance specifically prohibited drilling for oil and gas without obtaining a municipal permit.
Justice Judith French’s majority opinion, however, found that Ohio law — which gives the state the “sole and exclusive authority to regulate” oil and gas wells — preempts local regulation of fracking. The court ruled broadly that Ohio’s home rule amendment “does not allow a municipality to discriminate against, unfairly impede, or obstruct oil and gas activities” that state law permits. In a concurrence, Justice Terrence O’Donnell emphasized “the limited scope of our decision.”
Not every justice was thrilled with the ruling. In his dissent, Justice Bill O’Neill wrote that he was particularly troubled by the impact campaign contributions from oil and gas industry on the court’s decision. “Let’s be clear here,” Justice O’Neill wrote. “What the drilling industry has bought and paid for in campaign contributions they shall receive. The oil and gas industry has gotten its way, and local control of drilling-location decisions has been unceremoniously taken away from the citizens of Ohio.”
The author of the opinion, Justice French, received tens of thousands of dollars in campaign contributions from fracking companies last year. One company that is currently fracking in Ohio, Diversified Resources, gave her campaign $3,500, and American Energy gave her nearly $2,000. Kimble Company, a manufacturer of fracking equipment, chipped in $4,100. Energy utility companies gave her campaign much more. Both Murray Energy and First Energy gave Justice French’s campaign over $10,000. American Electric Powers and its political action committee gave even more than that.
The law firm that represented the plaintiff, Beck Energy, gave Justice French’s campaign $7,695, and the firm who filed a brief on behalf of the American Petroleum Institute and others gave more than twice that amount.
This campaign cash certainly raises concerns about a conflict of interest for Justice French. Ohio’s rule on recusal, however, does not require justices to decline hearing cases involving campaign donors. In grading Ohio’s recusal rule an “F,” the Center for American Progress noted the history of conflicts of interest created by campaign donations to Ohio justices. A 2006 article in The New York Times found that, over a twelve-year period, the justices “voted in favor of contributors 70 percent of the time,” with one justice voting for his donors in 91 percent of his cases.
The Ohio Supreme Court reached a different decision than other state supreme courts to review similar fracking bans. The New York Court of Appeals recently decided, under New York’s home rule authority, that towns may ban or limit oil and gas production. The Pennsylvania and Colorado Supreme Courts also found that local regulation of “various aspects of oil and gas development” within a city were not preempted by state law.