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Home rule goes up against the fracking industry - and the political system

danps's picture

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."

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Submitted by lambert on

What Dan is talking about could be my state, except with landfills, not fracking. And it's the same with mountaintop removal, wind, and privatization of all kinds. So I think all if you, if you look around, will see an identical set of process issues, even if the ground on which they are fought out -- that is, the battlefield on which the looting will take place -- is different.

* * *

So some quick comments:

1. I like "go big" as a mindset and a frame.

2. I like "home rule" -- who can be against that? -- as frame. (This connects in my mind to the more aggressively framed "____ sovereignty" material, in my state, food sovereignty.You might consider looking at this "document." It's buried in PDF, a proprietary data format. Irony!

3. This seems to me to be the nut of the matter:

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?

A. Document as in resolution? Ordinance and model ordinance?

B. "Home rule," but where's home? For groundwater issues, home is... big. For surface water, my home is the Penobscot's watershed, and not Penobscot County. The impedance mismatch between jurisdictional and environmental truths are a huge issue in the game. They affect standing, for example.

C. Same issue raised by "home."

As you've said with Occupy, initial conditions really matter...

CMike's picture
Submitted by CMike on

Here are clips from an event featuring two CELDF speakers which was held in Wells, Maine back in 2008. The so-called Part 2 clip features a speaker who spoke before Tom Linzey. His remarks in Part 1, partially transcribed below, continue on directly in the Part 3 clip:

[0:01] As you can imagine, we do a lot of conferences across the United States. We talk to a lot of people in a lot of places. That all of these issues have a common denominator among them and that common denominator is that we seem not to be able to make any decisions at the local level that stick anymore. And, in fact, those decisions about sustainability and about protecting nature and about protecting our authority to democratically govern ourselves in our own community to build sustainable communities at the local level, about what we think our vision should be as experts, ourselves, who live in the community, who have the most knowledge about how that community operates and what's best for that community.


[1:34] Some folks in western Pennsylvania have gotten pretty upset with something that began about ten years ago which is called "long wall coal mining." I don't know if anyone is familiar with "long wall mining" but it used to be that in western Pennsylvania to dig coal out of the ground you would do something called "room and pillar." These big corporations would come in, these folks who own the coal reserves up and down the east coast and through the coal/anthracite/bituminous region. That the corporations would come in and their miners, employed by the corporation, would go in and do "room and pillar mining" which means they would evacuate the coal out and then they'd leave pillars in place to hold the ground up because if you don't leave pillars in place guess what happens? Houses and roads and rivers and streams and everything else they just collapse into those holes.

[2:14] About ten years ago they came up with a new thing, it's much more efficient in the coal industry and the coal companies, called "long wall coal mining," where huge machines actually run under the surface of the ground to harvest the coal. What happens as the machines move through is that they pull the surface support behind the machines as they're moving through and something, we use this nice sounding word for it called "subsidence" [long "i"], happens which is that the land behind where the machine is running through drops sometimes six to eight feet into the holes and what happens, at that point, is that those areas that have been "long walled mined," they lose their streams and their rivers, they actually crack the limestone when this subsidence occurs and so where a stream once ran nothing does.

[3:00] And so, when someone tries to actually make the coal companies repair the streams, or attempt to, they actually come in and caulk them with cement, they caulk the streams to try and keep the leakage from occurring, it's absolutely amazing stuff. You would think that in Pennsylvania that the Department of Environmental Protection, which is our version of the DES in New Hampshire and I forget what it's called here -- DEP here in Maine, absolutely excellent -- that the Department of Environmental Protection in Pennsylvania would say, "Wow, this is not great. Because it's damaging our streams and rivers and it's damaging everything in western Pennsylvania, we've got to step in and do something about it."

[3:31] Well it turns out that the Department of Environmental Protection permits it to happen. They write in subsidence into the permits they issue the coal companies. They write it in. It's not called "permitting" for nothing, it permits something to happen, it legalizes something to happen. And guess who wrote the regulations that the DEP operates under? The coal companies.

[4:00] Planning commission member in western Pennsylvania, a good friend of ours named Michael Vacca, he likes to use a phrase, he says, "Coal is King." He says it doesn't matter what the Pennsylvania Constitution says, it doesn't matter what the DEP regulations say, doesn't matter what state law says about people being protected or local government being able to make their own rules, it doesn't matter because "Coal is King." I think in some ways Water is becoming King in some areas.

What did these folks in western Pennsylvania do? They passed an ordinance but before they passed the ordinance they went through something we refer to as Democracy School which is a three day training that we run to give people the bad news. And the bad news is that the system of government and the structure of law that we think we have in this country really doesn't exist when you actually attempt to use it to protect your community.

[4:45] Because, these folks in western Pennsylvania went through the Democracy School and didn't like what they heard and said: hey, we think we have a right to local self-government here in western Pennsylvania.

The structure of law for the last 100 years really belies that fact because, as Mari said, that, believe it or not, that the law in the United States today is that if something's been deemed to be a "legal use" L - E- G - A - L , a "legal use," water withdrawals - "legal use," corporate pork production - "legal use," low level radioactive waste disposal - "legal use," toxic waste incinerators - "legal use," you get the picture, most everything is a "legal use" because it's "permit-ted" by the state.

[5:22] If something's been deemed a "legal use," once again L - E - G - A - L, that communities are prohibited from banning it. "Legal use" - prohibited from banning it, it's the status of the law. Doesn't matter if you ask the corporate lawyers, the environmental lawyers, doesn't matter what lawyers you ask on either side of the fence they'll tell you the same thing, it's been well settled law for the last 100 years. "Legal use," can't ban it.

[5:44] Some people at that point at Democracy School always say, "Well that's not true, we have zoning ordinances and through zoning ordinances you can ban a certain use." Well not quite, under the zoning ordinances which are land use laws you can separate out incompatible land uses like commercial from industrial from residential. You attempt to use a zoning ordinance to ban a "legal use" you're looking at a big fat law suit from the corporation whose "rights under the law" you have just violated.


[7:21] What they heard in Democracy School wasn't us promoting X, Y, and Z, what they heard in Democracy School was us talking about history. It's pretty dry to some folks, they all think Democracy School's pretty dry. But we go back to the 1600s, in fact, we go back to 1066 because what we have in this country is a constitutional structure of law, that Mari was talking about, which actually incorporated something called English Common Law, that's what we used for the platform, the DNA for our own Constitution. And guess what? That law actually places the rights of property and commerce -- to remind; water's commerce, mining's commerce, incineration's commerce, garbage is commerce, you name it -- over the rights of people, communities, and nature. That's DNA-ed into the law. That's the structure of law that we have....

Linzey gets pretty explicit from this point on in the rest of Part 1 and in Part 3.

wanderindiana's picture
Submitted by wanderindiana on

A document... Seems so 18th Century. Governments are archaic.

What we need is another renaissance or revolution or Enlightenment, because brothers and sisters, these are dark ages. Words on paper, unless they read "In God We Trust," mean less and less with each passing day. Incorporation trumps sovereignty.

Lacking the will or inspiration or stamina to build resistance or create new realities, perhaps we do need a document. Perhaps the 99% need Articles of Incorporation.

Perhaps we need to stop taking this all so personally and get down to business. There are no new lands on this Earth to conquer and occupy; hence, we the People should seek to form and become the dominant multinational, global -- nay, interplanetary -- corporation.

More than a few hostile takeovers are in order, and governments are merely corporate tools. To use them in our favor we must play on the same field.

Loyalty to locality is quaint; banding together for fun and profit, for life, liberty, and the pursuit of happiness, is a mission that belongs in a statement that belongs in our new Articles of Incorporation.

Of course, we'll need a few good lawyers. And accountants. And a visionary CEO.

Those "nuts" who don't want to recognize the sovereignty of the United States or any other government have it half right. They just need to incorporate, and we, in our own way, need to find a way to add them as stockholders in our new venture.

So, let's get down to business and draft those Articles, and write a prospectus, and sell this idea to the downtrodden. Let's beat these bastards at their own game.

wanderindiana's picture
Submitted by wanderindiana on

More a secondary thought, or tangent, than OT, perhaps, but...

It just struck me that the recent MegaMillions jackpot -- the jackpot, mind you, and not the revenue from ticket sales -- was about the same as the recently reported Bank of America profits.

And it struck me that the 99% don't all play the MegaMillions, and how much economic might we'd have as a corporation instead of as a government...

And then I read that Stirling Newberry post, and thought that the moderate confederate progressive paradigm need not replace the current system if the three could just get together and incorporate as equal shareholders....

And if Zuckerberg just gave out equal shares of stock to Facebook members, maybe we'd already be on our way... assuming Zuckerberg wants to leave the 1%! Ha!

Okay, now I am rambling, so before I get entirely incoherent... You know what I mean. It is time to leapfrog government and incorporate.

coyotecreek's picture
Submitted by coyotecreek on

...that fracking rights are about to be auctioned off all around the lake upon which we have a family home in Michigan (thanks to Julia Williams for that information). Sadly, my right-wing brother who actually lives in the house says "So what?", while I sit here in Arizona tearing my hair out.

(With permission, please....) This post is now going to be used as the basis of a mailing that I am going to put together to send to all of the homes around the lake (I have the addresses).

I am having one of those days where I feel so helpless/hopeless that things can ever change. Overwhelmed, really. I see poll after poll saying that "the people" want X or Y and then the government does Z - and there is absolutely no place to go to get that changed. I truly wonder why we bother at all.....

danps's picture
Submitted by danps on

This is a cross post from Pruning Shears, so if you'd include a hat tip to the home page there I'd appreciate it too.

wanderindiana's picture
Submitted by wanderindiana on

Can we name ourselves the United Citizens of America, Inc.? With LOTS of subsidiaries? Like family units...

I will think on it all and try to flesh this out a bit....