Tish O’Dell is the Ohio Community Organizer for the Community Environmental Legal Defense Fund. Tish works in multiple states and was recently featured in national and international press for her work with Toledo, Ohio residents and their passage of the Lake Erie Bill of Rights. She has worked on over 40 laws and county charters in Ohio. Of these, 12 have been put to vote and six have passed. She can be contacted at Tish@celdf.org.

In Columbus, Ohio officials have quietly allowed direct democracy to die during the pandemic

Too many local officials love it when their hands are tied. It allows them to escape accountability. We see this across the nation as local officials fein powerlessness over key demands, and instead blame state government or a legal technicality that limit their authority. This allows them to justify accomplishing nothing, or very little. Maybe they can implement implicit bias training for police officers, but will do little to fight for structural racism. Maybe they can “zone” a harmful project and sacrifice one neighborhood, but will not take on the hard work of challenging a system that keeps them from stopping the harm altogether.

Sometimes it goes beyond doing very little. Sometimes local officials will actively use their powerlessness, to justify opposing a local demand by residents, because the state has told them the issue is a “state issue,” and not for locals to weigh in on. In other words, they are “preempted” by the state from taking any action.

In June, we witnessed a clear example of this related to anti-fossil fuel activism in Columbus, Ohio, when they advocated against a local ballot measure to ban fracking waste in the local watershed.

Although members of the Columbus City Council have acknowledged residents’ concerns about the harms of industrial fossil fuel extraction and the injection of fracking waste, when asked by residents to take action, they claim to be powerless to do anything. “I agree wholeheartedly that it is critical to protect our water from fracking and all other forms of contamination. The Ohio Supreme Court has ruled that local laws cannot be used to prohibit fracking or otherwise circumvent the state’s authority over oil and gas drilling,” stated City Council Pro Tem, Elizabeth Brown in an email to a community member. The local community group refused to accept this. They refuse to accept that they must simply sit by and wait for another public health crisis involving the shut down of their water supply due to toxins as happened in Flint, MI and Toledo, OH.

The system is constructed to disempower communities, to the detriment of people and the planet. That is why we need to fight back and why we need local elected officials with courage to fight with us… not against us!

Worse yet, in June attorneys for the city have actively opposed residents’ efforts to get a measure to protect the watershed from the fracking industry. A proposed Community Bill of Rights Charter Amendment for Water, Air, and Soil Protection and to Prohibit Fossil Fuel Extraction and Related Activities and Projects would ban the industry from activities that threaten the community water supply and assert an enforceable right of people and ecosystems to “clean water, air, and soil, and to be free from activities that would violate this right.”

Petitioners for the initiative were forced to suspend petition gathering March 12, 2020, due to the Covid-19 pandemic. They had secured almost 9,000 signatures to place the initiative on the November 2020 ballot, but because of the pandemic, they would not reach their goal. The deadline to turn in 9,870 valid signatures was June 18.

The group again went to their electeds for assistance. They asked the City Council to make the decision to place the initiative on the November ballot, which they have the authority to do. They refused. Then the people asked the council to simply extend the deadline and give them an additional three months to gather signatures when it is deemed safe. Again, the “people’s representatives” said no. So, residents sued the city in federal court, hoping to suspend the local signature deadline.

Rather than accommodate the democratic process during the pandemic, the city instead went on the offensive against the initiative arguing to the judge that the initiative “is not a legitimate subject for municipal regulation” and therefore the petition should not be allowed to move forward.

In the petitioners’ lawsuit, written by Community Environmental Legal Defense Fund attorneys, the petitioners showed the city could have taken action to safeguard democracy during the pandemic.

Instead, the city argued to a judge that “none of Ohio’s pandemic response regulations in any way change[d] the status quo about circulating,” and therefore there was nothing stopping petitioners from gathering signatures. They even went so far as to say that there were plenty of Black Lives Matter protests at City Hall and the statehouse where the petitioners could have collected signatures. The tone deaf response to the pandemic and its impact on the democratic process, let alone human life, is shocking.

Big Picture

Across the nation, states and corporate interests have devised a system of control that dampens the power of representatives closest to the people. Many of those officials are more than happy to be powerless. It’s not their “jurisdiction,” so it’s not their fault, they say. This gives them an excuse to not fulfill their duties to the people they supposedly represent.

From fossil fuel bans, new civil rights protections, police restructuring, new protections for workers and taxes on the rich, local officials across the nation often refuse to fight for the very people who they take an oath to protect.

They say the state won’t allow them. They say corporations or the Fraternal Order of Police will sue.

They are right. And that is the point.

The system is constructed to disempower communities, to the detriment of people and the planet. That is why we need to fight back and why we need local elected officials with courage to fight with us… not against us!

Not all elected officials are afraid to stand up for their communities, Nature and for what is right.

For example, Cathy Miorelli, a city councilperson my colleagues worked with in Tamaqua, Pennsylvania, once said, “State and local politics tried to shut me down, and I was threatened with lawsuits. But I was clear: I’d rather get sued than do nothing while my kids and my community were poisoned. I’d rather get sued than do nothing in the face of so much injustice.”

We need to see more local electeds using their power for political ends, to fight for emancipatory programs and a system of government that protects communities and Nature. The people and the planet need you—NOW.

Featured Photo by Clem Onojeghuo on Unsplash

Link to article source on CELDF.org:
https://celdf.org/2020/08/wanted-local-officials-willing-to-fight-the-corporate-state-to-protect-people-and-the-environment-during-a-pandemic/

As published in Rolling Stone Magazine, April 1st, 2020
Author: Justin Nobel

An unlikely crew of environmentalists who took on the powerful Pennsylvania fracking industry in a David vs. Goliath battle to keep an injection well out of their community have notched an important victory in their fight.

Using a novel strategy — seeking legal rights for nature itself — the rural western Pennsylvania community of Grant Township has been battling for seven years to stop the permit for the injection well, which would have brought a 24/7 parade of trucks carrying brine, a toxic byproduct of oil-and-gas drilling that would be shot down the well and into a rock layer deep beneath the farms and woods in the area.

Earlier this month, in a stunning reversal, the Pennsylvania Department of Environmental Protection (DEP), which in 2017 sued Grant Township for interfering with the agency’s authority to administer state oil-and-gas policy, revoked the permit for the injection well.

“This decision is soooooo delicious,” says Stacy Long, a graphic designer and township supervisor who together with her mother, Judy Wanchisn, a retired elementary-school teacher, helped lead the charge to stop the well. “I am hopeful that the haters and naysayers will take note, and that communities will be inspired with what’s just happened and run with it. Fights like ours should mushroom all around Pennsylvania.”

Grant Township’s story, first covered by Rolling Stone in 2017, will also be featured in Invisible Hand, a documentary on “rights of nature” produced by Oscar-nominated actor Mark Ruffalo, slated to premiere at the 2020 Columbus International Film Festival in Ohio. “Grant Township has proven against all odds that a community is capable of stronger protections for the environment than state or federal governments,” says the film’s co-director Joshua Pribanic. “By taking a stand and winning, they’ve set a new precedent worldwide on what the rights of nature can accomplish.”

At play in Grant Township was whether a corporation had the right to inject fracking waste in a resistant community, or whether the community — and its streams, soils, and species — had the right to block the corporation from depositing its waste. In the course of the fight, Grant adopted an ordinance that established its right to local self-government, and later a home-rule charter, made possible by a 1972 state act that sought to give more power to municipal governments. According to their charter, injection wells are illegal — and nature has rights.

The rights-of-nature idea comes from a paper by law professor Christopher D. Stone, “Should Trees Have Standing? Toward Legal Rights for Natural Objects.” “The fact is, that each time there is a movement to confer rights onto some new ‘entity,’ the proposal is bound to sound odd or frightening or laughable,” wrote Stone. “This is partly because until the rightless thing receives its rights, we cannot see it as anything but a thing for the use of ‘us’ – those who are holding rights at the time.” As Jon Greendeer, the executive director of Heritage Preservation with the Ho-Chunk Nation of Wisconsin pointed out to Rolling Stone in 2017: “What the rights of nature does is translate our beliefs from an indigenous perspective into modern legislation.”

The victory for Grant Township could potentially ripple across the fracking industry, already struggling from global price wobbles, a push toward renewables in the face of climate change, increased criticism over health harms to communities, and recent market fluctuations caused by the coronavirus.

The DEP’s decision to revoke the injection well permit was laid out in a March 19th letter to Pennsylvania General Energy, the company that had originally applied for the permit. “Operation of the injection well…would violate a local law that is in effect,” the DEP letter stated, citing the charter enacted by Grant Township that banned “the injection of oil and gas waste fluids.” In 2017, the DEP sued Grant over this charter’s language, so the decision to suddenly accept the terms of the charter was significant. When asked by Rolling Stone to explain the agency’s shift in tone, DEP spokesperson Neil Shader stated, “DEP cannot comment substantively regarding a matter in litigation.”

The litigation referred to is the suit DEP brought against Grant in 2017. That same year, Grant brought a countersuit defending their charter, arguing it was necessary because the DEP had failed to do its job of protecting the community’s environment. The case is presently in Pennsylvania’s Commonwealth Court; a decision issued in early March stated that “the Township seeks to prove that hydrofracking and disposal of its waste is so dangerous to the environment as to be in violation of” a part of the Pennsylvania Constitution called the Environmental Rights Amendment. This amendment states “The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment.”

Essentially, the court is saying it wants to hear the township’s argument for why frack waste would violate their constitutional rights, and the court is refusing to simply dismiss the case, as DEP had asked it to do, says Chad Nicholson, an organizer with the Community Environmental Legal Defense Fund, the Mercersburg, Pennsylvania-based law firm that served as Grant Township’s legal counsel and has worked with communities around the country on rights-of-nature cases.

It is unclear just how the Commonwealth Court’s ruling may have affected DEP’s decision to revoke the permit for the injection well.

Still, the ramifications for Pennsylvania communities that are fighting fracking may be significant. “One extraordinary legal issue raised in the case presently before the Commonwealth Court is that fracking in Pennsylvania may violate the community’s right to a clean environment and that communities adopting laws that protect their environment could thus survive intact,” says Nicholson.

“DEP’s decision to revoke the permit is not just about Grant,” he adds. “It also recognizes that local laws passed by other communities, whether related to fracking, pipelines, or injection wells, would also authorize the DEP to deny permits. This is a huge step forward for local resistance to the oil-and-gas industry in Pennsylvania.”

But when asked whether this meant that communities now had an effective legal pathway to show that fracking violated their state constitutional rights, Nicholson checked his enthusiasm. “The courts and the DEP have a history of not protecting the environment, which is why communities like Grant had to do this in first place,” he says.

Regardless, the oil and gas industry was aghast at the DEP’s decision to revoke the permit. “This is truly disappointing,” read an article published last week by the pro-industry Marcellus Drilling News. The DEP, the site stated, has caved “to radicals.”

When Pennsylvania Independent Oil and Gas Association general counsel Kevin Moody was asked in 2017 by Rolling Stone what would happen if Grant Township prevailed, he replied: “Anarchy and chaos.” People would “use local governments to create their own little areas of laws superior to state and federal laws,” he said. “An impossible way for our country to function.” When asked last week to comment on the ramifications of DEP’s decision to revoke the permit, Moody declined.

The industry’s “brine,” traditionally disposed of in injection wells, has long escaped notice, but the waste product rises to the surface at America’s oil and gas wells to the tune of nearly 1 trillion gallons a year, and is filled with human carcinogens like benzene, toxic heavy metals like arsenic and lead, and the radioactive element radium in quantities that can be thousands of times the EPA’s safe drinking water limit. Furthermore, research by the U.S. Geologic Survey has increasingly linked injection to earthquakes. As the sheer volume of brine has increased under the past decade’s blitz of drilling — and community pressure against the facilities has mounted nationwide — what to do with the stuff has posed problems for the industry from Pennsylvania to North Dakota to West Texas.

“For me it has always been about the right to protect our water, our hellbender salamander and our home,” says Wanchisn, referring to an ancient species that lives under stream boulders in the area.

“When people realize something that is cherished may be gone and you may not get it back,” she says, “you begin to see that a fight has to be waged.”

Featured image credit:
Grant Township, Pennsylvania
Mike Belleme for Rolling Stone

Article url: https://www.rollingstone.com/politics/politics-news/rights-of-nature-beats-fracking-in-small-pennsylvania-town-976159/?fbclid=IwAR2mO4MWsP8RQoZ0sPTye6Kw4GJkbbnsMjJDQIVm1vdf0rA3cxQHqkYvBo8

Statement on the Use of Brine to Treat Roadways

Emily Bacha, Communications Director, November 2, 2019

The following statement can be attributed in full or in part to Heather Taylor-Miesle, Executive Director of the Ohio Environmental Council:

At the Ohio Environmental Council, we pride ourselves on achieving environmental protection through forward-thinking, science-based, pragmatic solutions. We conduct our advocacy on principles of transparency, accuracy, and honesty. However, our comment in the October 23rd article regarding the use of oil and gas wastewater (“brine”) to treat roadways was not accurate. We made a mistake and we apologize.

After the article ran, we became aware of powerful new scientific evidence uncovered by advocates who are leading on this issue. We have now had the chance to examine it and the evidence is deeply troubling. Testing by the State of Ohio shows that brine is, as a general matter, highly radioactive. Of 151 samples taken from 150 different sources of Ohio brine, 148 samples exceeded environmental discharge limits, and all 151 exceeded federal safe drinking water standards. In short, this evidence shows that oil and gas wastewater is a danger to the public and the environment and it should not be spread on Ohio’s roadways.

Ohio is lucky to have a group of passionate advocates leading on this issue who are bringing to light the true threats of allowing unchecked brine wastewater to be spread on roads.

By Theodore Decker

The Columbus Dispatch

Posted Oct 5, 2019 at 7:10 PM Updated Oct 6, 2019 at 10:31 AM

The bullying continues.

You’d think the oil and gas industry would be satisfied, now that it has pushed all of its measly opposition aside, crisscrossed Ohio with pipelines and fracked up the countryside with its well pads.

But no, there are still citizens to be muzzled.

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Senate Bill 33 has been oozing its way around the Statehouse for months. It passed the Senate in May and now resides in the House Public Utilities Committee. It aims to bolster laws already on the books by tailoring them to specifically address “critical infrastructure facilities” and to target interlopers at those facilities with enhanced penalties.

Critical infrastructure, according to the bill, includes everything from water plants to telecommunications towers. But it is the gas and oil industry that is driving legislation like SB 33 across the U.S. Since high-profile protests of the Dakota Access crude oil pipeline in 2016, the industry’s full-court press is working; nine states have increased criminal penalties by drafting legislation very much like SB 33.

If SB 33 were to become law, it would be a first-degree misdemeanor to “knowingly enter or remain on a critical infrastructure facility,” a crime that is punishable by up to six months in jail and a $1,000 fine. If violators “knowingly destroy or improperly tamper with a critical infrastructure facility,” they would face a third-degree felony punishable by up to three years in prison and a $10,000 fine. That’s the same punishment faced by a felon caught carrying a gun.

And in what would have the most chilling effect on free speech if SB 33 becomes law, organizations that are deemed “complicit” with any acts of destruction or tampering could face a fine of as much as $100,000. That might be chump change to a natural-gas pipeline operator, but it could be a lethal blow to a local grassroots environmental group.

“This is designed to discourage protest,” Gary Daniels, chief lobbyist for the American Civil Liberties Union of Ohio, told Dispatch Reporter Marty Schladen last week.

Maybe you disagree. Maybe nothing you’ve heard yet seems especially outrageous; darn hippies should be locked up for trespassing and vandalizing private property!

It is not that simple.

The wording of SB 33 is as murky as that gray sludge the pipeline companies spilled all over the landscape back when they were assembling their lines with all the care of a sugar-addled toddler cramming and jamming his way through a bucket of giant Legos.

SB 33 supporters and sponsor Sen. Frank Hoagland, a Republican from Mingo Junction, didn’t seem especially eager to clarify things when pressed by Schladen. Curiously, for instance, no one involved wanted to define “tampering.”

If a protester overturned a bulldozer and set it ablaze, no one would quibble whether that meets the definition of destruction. But why not flesh out the intent of “tampering”?

Is it tampering to block a driveway to a well pad? To hang a protest banner on a section of pipeline, or to simply stick a sign in the ground? Is it tampering to scuff your boots in the dust of a pipeline right of way when the industry doesn’t particularly like what you’re saying through that megaphone of yours?

And about those rights of way. They, too, are considered “critical infrastructure facilities,” and SB 33 seems to suggest that protesters would be considered trespassers even where a right of way crosses public property. Even more confounding, they would be considered trespassers on a right of way even when they have explicit permission from the property’s landowner to be there.

When Hoagland introduced SB 33 this year, his office regurgitated the talking points of the oil and gas industry.

“We are beginning to see how critical infrastructure provides essential energy, communications and other vital services and products to the entire state,” Hoagland said in a statement prepared by someone. “This legislation seeks to increase measures of protecting these facilities from wrongful acts that can cause serious harm.”

Hear that rumble? That’s the sound of Big Oil and Big Gas. Their lines are laid and wells dug, but they’re still tearing things up here in Ohio. Your liberties, to be exact.

tdecker@dispatch.com

@Theodore_Decker

Click HERE to read the full article in the Columbus Dispatch.