What the frack?! Ballot issue divides activists, city leaders


Members of the Kent Environmental Right Group, including Bonny Esparza, Kathy Schuman and Lee Brooker, attend a community event for speaker Gwen Fischer of Concerned Citizen Ohio on Sept. 15, 2014 at the Kent Free Library.

Matthew Merchant

Come November, the city of Kent and Kent State University could begin a drastic social and environmental change in two possible ways.

The first, in the eyes of city law director James Silver, would involve a city free of toxic pollutants, but at a possible expense of empty roads and vacant shopfronts. There would be no gas-powered vehicles, apartments and homes without electric heat, or people knocking on doors because a new law could ban them.

The second, in the eyes of the Kent Environmental Rights Group, would involve clean air, sustainable energy sources and a clean environment free of harmful chemicals. None of those things would exist because there would be no hydraulic fracturing within or outside city limits, according to the law.

The bill’s framework

Kent City Council unanimously approved the Community Bill of Rights on Aug. 20. A proposed amendment to the city charter —Kent’s governing document— the bill of rights will be listed as Issue 21 on the Nov. 4 ballot. If passed, the bill will become law, establishing both the rights of Kent residents and the environment, as well as regulations ensuring those rights are not infringed upon.

The Kent Environmental Rights Group, a local environmental advocacy group comprised of roughly a dozen Kent residents, formed in April 2014 “to work on a community Bill of Rights to protect Kent’s air, water, land, community, and property values,” according to its website. Specifically, its goal was to prevent hydraulic fracturing, or fracking, from occurring within city limits, which includes Kent State’s main campus.

Fracking is the oil-drilling process that involves pumping a mixture of water, lubricants, anti-bacterial agents, sand and other chemicals into shale formations miles underground at high pressure. This “fractures” the rock and allows for the extraction of trapped natural gas, a hydrocarbon. The chemically laced, radioactive mix is pumped back above ground and shipped to disposal wells, some within state lines and sometimes near aquifers.

Oil and gas industries in Ohio, including hydraulic fracturing, are currently regulated under Ohio Senate Bill 315. Signed by Gov. Kasich in June 2012, the bill established that companies disclose the chemicals being used, how and when corporations have to test water sources in proximity to the fracking wells and how permits can be obtained. The law also allows for the Ohio Department of Natural Resources to provide oversight for possible earthquake activity that could result from drilling.

In order to legally propose an amendment to the city charter—the only way in which fracking laws can be established at a local level— KERG members collected 2,509 petition signatures beginning in May, 802 more than the required 1,707 necessary for the proposal. KERG collaborated with the Community Environmental Legal Defense Fund, a Pennsylvania-based non-profit law firm that specializes in community-based environmental rights issues, to write the bill.

Click an article to read the KERG and city law director’s opinions on the Community Bill of Rights

Law director’s opinion

During the Sept. 3 city council committee meeting, law director James Silver, a self-described environmentalist, presented his legal opinion on the proposed amendment in a nearly 10-page memo. Silver described the bill of rights as “a horribly written document.” As a legal document, the language is “vague,” and parts of the bill are unconstitutional and unenforceable from a legal perspective, he said.

If voted into law, Silver said that the city would become a ghost town. Vehicles powered by gasoline—a product of hydrocarbons—would have to be banned, including cars and lawn mowers; Heating for homes would have to be shut off because it would pollute the air; and a dome would have to be installed in order to filter air and water entering the city.

As law director, Silver would be forced to handle lawsuits that would arise from the amendment’s violations.

“I agree, philosophically, with the purpose and intent of this document,” Silver said. “But I cannot enforce this.”

If passed, Silver said that “persons,” from Kent residents to oil companies, would be in violation of local law for “extracting oil,” which could include everything from pumping gas into a car or fracking shale for hydrocarbons.

The proposed amendment, however, goes further, it would violate the 14th Amendment to U.S. Constitution, which guarantees equal protection to all “persons” under federal law. Corporations, including drilling companies, would be in violation of the law because they are considered “persons,” as established by the Supreme Court in the 2010 Citizens United v. Federal Election Commission case. A section of the proposed amendment nullifies those rights, a provision Silver said is unconstitutional.

Dave Ruller, Kent’s city manager, defended Silver by saying that he was trained to present worst case scenarios.

“We are not trying to be oppositional philosophically. It certainly has a lot of elements—clean water, clean air—which we are really proud of and Kent has a great legacy about trying to be a leading city in those areas. I think it’s a value that matters,” Ruller said. “We remain committed, (being green) is one of our top priorities. But we also have to run in accordance with law.”

Environmental group’s outrage

Members of KERG who attended the Sept. 3 meeting were not allowed to speak because Silver’s discussion took place during a council “work session,” where no public comment is permitted.

But Perry Phillips, a member of KERG, spoke out, claiming the information Silver presented was inaccurate. Kent Mayor Jerry Fiala had to remind audience members that public comments were to be made at the following open forum city council meeting. Several KERG members, including Georgia Foster, left visibly angry at what they perceived as being silenced.

“They got together tonight to pretty much say this is unconstitutional. Excuse me? We have the constitutional right to life,” she said. “That means we have the right to breathe without being poisoned, the right to drink water without being poisoned, we have the right to own a piece of property within the City of Kent that doesn’t shake underneath our feet because of the injection well that they’ve put nasty stuff down in.”

Tailored solely for the City of Kent, the proposed amendment specifically targets the hydrocarbon industry, said Tish O’Dell, Community Environmental Legal Defense Fund community organizer for Ohio. Sean Kelly, an Ohio lawyer for CELDF who worked with KERG to draft and write the proposed amendment, could not be reached for comment.

“But the bill was also written broadly enough so that it could apply to other forms of chemical spills or environmental dangers that might occur in the future. The group wants to be proactive and not reactive, Foster said.

Ben Price, the national organizing director for CELDF, published a document, entitled “Hi-Oh Silver! And Away!!!!” in response to Silver’s comments.

“Residents of Kent have often and persuasively made clear that they do not consent to be fracked…” Price said. “These rights already belong to the residents of the City of Kent, and these rights are regularly violated.”

Misunderstandings and mixed messages

Two weeks after Silver’s presentation, several members of KERG arrived at the Sept. 17 council meeting prepared with counterarguments and information on hydraulic fracturing. Lee Brooker, a member of KERG, said the group addressed what it said were common misconceptions about fracking and the misinformation that Silver gave to city council.

Brooker said that the group just wanted equal time to discuss the bill.

Afterward, Silver reiterated that the bill should be more focused on one issue: banning fracking within city limits.

“That’s very simple, that’s direct, I know what that means, I could do that,” he said. “But that’s not what we’ve got here. But I don’t even know if we could do that because the state controls where you drill for oil.”

Silver said the proposed amendment would also prevent the city from effectively passing or enforcing the restrictions established in the bill of rights because that authority already exists in state law. Kent’s proposed amendment would undermine those laws.

“Challenge this on the state level because, I don’t care what the city says, we don’t have that authority,” Silver said. “The state has that authority.”

However, under the City of Kent’s charter system of government, Silver said local fracking regulations can be established as long as they follow existing state laws.

“A charter city can adopt laws that may not necessarily agree with state laws, as long as those only affect the residents of the City of Kent,” he said, citing examples like zoning, speed limits on city roads and some taxes.

The proposed amendment would affect people and areas outside the city limits.

O’Dell said other anti-fracking amendments have passed in more than 160 communities across the country. Ohio cities including Mansfield, Broadview Heights, Yellow Springs and Oberlin have all passed bills of rights, according to CELDF’s website. Silver said he has not contacted any other city law director for their opinions or suggestions on existing bills because “this is so blatant that I don’t need anyone else’s opinion.”

City council speaks out

John Kuhar, Ward 4 representative on the Kent City Council, was initially intrigued with the idea of establishing the bill of rights as a self-described environmental and civil rights supporter. But with the complexity surrounding fracking in Kent, he now believes “this thing that is covered up with the name Bill of Rights,”  cannot be written in such a simple form.

“If someone would have said ‘I don’t want any drilling within the city limits of Kent,’ a simple person like me could understand that,” Kuhar said at the Sept. 17 council meeting. “But when something comes in an envelope with a cover on it that looks like one thing, and when you read it logistically it confuses you, I mean, you just can’t read it and understand what’s trying to be accomplished.

“I don’t know how you’d ever enforce a law against hate or a law against war or a law against crime in a broad spectrum,” he said, “just like I don’t think you can address clean air and water with a broad spectrum bill.”

Ward 5 representative Heidi Shaffer, speaking for herself at the Sept. 17 council meeting, said she appreciated that the KERG members came forward and offered another perspective on the bill.

“I personally agree with it and will end up voting for it, most likely,” she said. “We’ll see when it’s time to go to the polls. I think it’s a positive statement affirming our values.”

Despite both sides’ arguments, Silver said fracking laws will remain if an alternative energy solution cannot be found.

“As long as we keep using it,” Silver said, “they’re going to keep digging it.”

Contact Matthew Merchant at [email protected].