B.G. council unanimously passes ban on fracking

City ordinance’s strength is untested

9/16/2013

BOWLING GREEN — By a 7-0 vote, the Bowling Green City Council on Monday night approved an ordinance that bans fracking and disposal of fracking waste fluids in the city limits.

Now the question becomes how strong the action would be if it is ever challenged in court.

The Ohio Department of Natural Resources claims it maintains legal authority to issue all drilling permits throughout the state, even in cities that pass ordinances to ban the activity.

But Bowling Green City Attorney Michael Marsh, in a Sept. 4 letter to council members, said he wrote the ordinance to be a part of the city’s criminal code, not its zoning code.

“It is an exercise of our police powers,” Mr. Marsh wrote. “The same tack was taken by us several years ago when we were the first city in Ohio to regulate cigarette and cigar smoking in certain facilities. Smoking at that time was also a ‘legal’ activity and was heavily regulated by the state of Ohio. Our ordinance was challenged, and it was upheld, as a reasonable exercise of our police power, and since it did not conflict with the state criminal code, there was no pre-emption argument to overcome."

There are no immediate plans for fracking in Bowling Green and, according to a cross-section of geologists and industry lobbyists, the city is a longshot for such activity because its water table is too high and its geology isn’t suitable.

Most of northwest Ohio’s isn’t.

But Bowling Green councilmen said their intent is to fend off any possible attempts that might arise someday.

“I believe this ordinance, as written, allows us to do that in a very direct and open manner,” Councilman Mike Aspacher said.

The ban was suggested by Mayor Dick Edwards in response to a proposed amendment to the city’s charter that a group of petitioners succeeded in getting placed on the Nov. 5 ballot.

The ballot proposal calls for Bowling Green voters to establish a Community Bills of Rights that asserts city residents have a right to clean air, clean water, peace, respect for nature, renewable energy, and self-governance.

Opponents have said those concepts are too broad, could be misapplied to other industries, and hurt business. They are hoping voters view the ordinance as a sufficient safeguard.

“If it were not for the charter amendment being on the ballot, I’m sure we wouldn’t be considering this [ordinance] now,” Councilman Bob McOmber said.

He said he remains opposed to the amendment because he believes it is too vague.

“I am of the opinion this [proposed] Bill of Rights would have a chilling effect on the business community in Bowling Green,” Mr. McOmber said.

But he said he would support it if he thought the ordinance wasn’t sufficient.

“If I thought the only way to prevent fracking in Bowling Green was through a charter amendment, then I’d be all in favor of it,” he said.

Not all councilmen said they were supporting the ordinance to send voters a message.

Councilman Daniel Gordon said he has some “private thoughts” about the proposed charter amendment that he’d rather not share so as not to influence voters.

Mr. Edwards said after the vote he was “grateful for council support” and echoed what others said about fracking.

“I have yet to run into someone who wants fracking in Bowling Green. We don’t want fracking here,” he said.

Fracking is the term for a drilling process in which shale bedrock is fractured deep underground so that more oil and natural gas deposits can be reached.

It has existed in Ohio since 1952. But the oil and gas industry has advanced the technology by making it possible for multiple drills to move in a horizontal direction to fracture shale, opening up enormous potential for more oil and natural gas recovery worldwide.

Ohio is gearing up for a 25 to 30-year fracking boom that is expected to be under way in 2014, most of it east of I-77 near the Pennsylvania and West Virginia state lines. Eastern Ohio also is the site of much underground injection of fracking waste fluids from Ohio and Pennsylvania.

Bowling Green was part of Ohio’s oil boom in the 1800s, but it is not viewed by the industry as a likely site for fracking or for disposal of fracking waste fluids.

Prior to council’s vote, Leslie Harper, leader of a nonprofit group called Protect BG Ohio that gathered signatures for the charter amendment, offered to sit down with city officials and business leaders at an upcoming meeting to go over their concerns about the ballot initiative.

She said there is a lot of confusion about it — and that it has given people the perception that Bowling Green has become a battleground for the fracking debate.

“That was never anyone’s intention,” she said.

Protect BG Ohio is part of a larger group, the FreshWater Accountability Project. Both are run from Ms. Harper’s house in Grand Rapids, Ohio.

Contact Tom Henry at: thenry@theblade.com or 419-724-6079.