Nick Evans, Ohio Capitol Journal —
Ohio environmentalists are urging a judge to halt a state commission preparing to award leases to oil and gas companies who want to frack beneath state parks and other public land. The Ohio Oil and Gas Land Management Commission is set to meet Monday to consider bids for several parcels of land. Once the commission settles on the “highest and best” bidder, state law requires the Ohio Department of Natural Resources to lease them the parcel.
The Ohio Environmental Counsel and Save Ohio Parks are challenging the commission’s regulations, and they argues allowing the panel to award leases despite that court case would cause irreparable harm.
In a statement OEC general counsel Chris Tavenor argued the suspension they’re seeking would preserve the status quo and “pause the bureaucratic steamroller.”
“Any decision to sacrifice Ohio’s state parks for fossil fuel extraction — especially on the 75th anniversary of their creation — is a decision that increases Ohio’s greenhouse gas emissions when Ohio’s leaders should be doing everything in their power to reduce pollution and combat climate change,” he added.
How we got here
Ohio’s OGLMC has been around, at least in theory, for more than a decade. But the potential downsides of drilling in state parks encouraged caution rather than action, and for most of its life the commission’s seats sat vacant.
It was yanked out of the doldrums, however, early last year. Gov. Mike DeWine signed legislation that began its life as a minor tweak to the minimum number of poultry chicks that can be purchased at one time. Thanks to a last-minute amendment that bill wound up redefining natural gas as “green” energy and ordering state agencies grant leases to effectively any company until the OGLMC came up with rules of its own.
Since then, the OGLMC has held several hearings, developed rules, nominated parcels, and fielded several bids. At its Monday Feb. 26 hearing, commission members will consider taking action on bids for a dozen parcels. They’ll also weigh whether to open bidding for three more.
The court challenge
Opponents of the idea are prevailing on the Franklin County Common Pleas Court to suspend the commission’s underlying rules before it can move forward at that Monday hearing. Save Ohio Parks contends the OGLMC has failed to give its plans an adequate public hearing, and it’s currently challenging them in court. The group’s latest filing seeks to maintain the status quo while that case plays out.
Similar to restraining orders or injunctions, the group has to show they’re likely win on the merits of the case and they’d suffer irreparable harm without a court order. They also have to show putting matters on hold won’t harm others and would serve the public interest.
Save Ohio Parks argues they’re likely to succeed because the OGLMC acknowledges it didn’t hold a public hearing.
The OGLMC did not respond to a request for comment. However, in its court filings, the commission contends because it doesn’t actually license or permit drilling, it’s not subject to Ohio’s public hearing requirements.
As for the harm it faces, Save Ohio Parks argued its members could lose the enjoyment of their property, which is “not fully or adequately compensable.” The group cites cases in which courts have found threats to property represent irreparable harm — one relating to permanent modifications to an adjoining property, and the other to construction of a roadway surrounding a person’s property.
In addition to undermining homeowners’ comfort the group argued “monetary restitution for the inescapable environmental, recreational, aesthetic, and human health impacts of fracking the approved parcels would be impossible.” Save Ohio Parks added several federal courts have recognized environmental harm as irreparable.
Harm to others?
Conversely, Save Ohio Parks argued there’s little downside to delay. “The potential harm to (the OGLMC) is minimal to nonexistent,” the group argued. And given that the parcels up for consideration are the first ones that could be awarded, holding off would be less disruptive than rescinding permission after a company has begun building infrastructure.
“Settling the points of law here in issue prior to the full execution of the Commission’s orders will help provide regulatory certainty and minimize disruption to all interested stakeholders,” Save Ohio Parks argued.
As for the oil and gas companies who want to drill, the harm they face is purely hypothetical, Save Ohio Parks contends, “because no parties are entitled to lease and develop these public lands.”
“Oil and gas deposits that took hundreds of millions of years to form can surely wait while this litigation is pending,” they insisted.
In a phone interview, Save Ohio Parks member Melinda Zemper was quick to cite the potential environmental and health threats posed by fracking. But she was just as upset about the idea betrays the fundamental idea behind public parks.
“One of the strongest arguments for me, is the fact that these are public lands that belong to the people of Ohio, and they were set aside for the people of Ohio, to be a respite from urban sprawl and to get out in nature,” Zemper said.
“To see that the state of Ohio wants to monetize them,” she added, “and destroy these beautiful, pristine environments and experiences that people pay their tax dollars for — that’s just a travesty.”