On Saturday, June 13, 2015 Athens and Meigs Counties shared a Democracy Day held at the delightful Community Center in Shade, Ohio. We were welcomed by Roger Hawk, Lodi Township trustee, and by Lenny Eliason, Athens County Commissioner. Dick McGinn and John Howell oriented the participants, which numbered at least 60 throughout the day, to the issues of the day – democracy and the relation of the proposed county charter’s bill of rights both to democracy and to the threat posed to Southeast Ohio by injection wells. A panel explored the recent history of community efforts to address this concern. A second panel in the afternoon addressed the possibilities that might be afforded by charters to the counties in addressing a number of local issues.
In a keynote address Tom Hodson, journalist, lawyer and judge, described how fast things were moving legally, with three relevant court cases in Ohio within the last 6 months. One Ohio Supreme Court case, based on zoning laws, went against the community of Monroe Falls, but it was a closely divided opinion, a decision which will not provide precedents for future cases, even those based on the same legal arguments. A summary judgment was issued by a judge against Broadview Heights, which had banned further fracking within its city limits through a voter initiative, but the city prosecutor had failed to make a serious attempt to the defend the city’s law, resulting in the summary judgment. Summary judgments also cannot be used as court precedents. A suit has now been filed by citizens of Broadview Heights against the state that will begin to address the power of the people and their rights, which are specified in the Ohio Constitution. The charters being proposed in Athens and Meigs counties, when adopted, will likely be challenged in the courts, but Hodson made clear that a serious defense can be mounted.
Local efforts to make the state and federal regulatory processes work to defend the communities have failed, as the first Panel clearly documented. Now, the more radical approach of passing local ordinances that are at variance with state laws, laws which result in the violation of inalienable rights, seems like an appropriate path. This approach constitutes community civil disobedience, which may result in legal expenses to the counties, but keep in mind that no extensions of rights have ever been won without civil disobedience. think about the struggles to end segregation and to establish women’s suffrage. No defense of democracy comes without costs and sacrifice.
In a second keynote, Jack Frech emphasized that in a democracy, everyone counts. Collusion of government with corporate interests often erodes that democratic essential, as wealth is drawn persistently from the many to the few. Jack’s talk emphasized how public servants, committed to fairness for all, can make a positive difference in the lives of people and in the health of communities.
Entrenched power uses fear to cow the public into submission to protect its privileged position. In the present case corporate interests will attempt to frighten voters with the threat of expensive law suits and with the claim that banning injection wells will have a negative effect on local employment and prosperity. Evidence was presented during the day that such threats and claims have little substance.
Does the banning of injection wells and the prohibition of use water for fracking, as specified in the proposed charters, unfairly limit property rights? That question has some legitimacy, especially in terms of fracking, where land owners and mineral rights owners can realize significant financial returns from agreeing to have their lands fracked. To prohibit fracking would amount to blocking owners´ rights to profit from their holdings. These rights, however, have to be balanced against the interests of others in the community, interests which include their own property values, as well as important factors upon which it is more difficult to fix a price, such as health concerns arising from water, air and land pollution with toxins.
The proposed charters do not, in fact prohibit fracking, but they do make it less profitable by insisting that the water used for fracking be obtained elsewhere and the waste from fracking be disposed of elsewhere. Although fracking does have the potential for significant fiscal return, the promise of fiscal return is much less for injection wells. For fracking it can be argued that there can be a broader economic benefit to localities, but that argument is weak for injection wells. Yet injection wells present hazards to communities, in terms of potential water supply contamination, air pollution from methane and other volatile organics, land contamination from leaks of toxic frack wastes during transport or from within the injection wells, and degradation of roads and bridges. The price which the people within the community may have to pay seems to outweigh the potential benefits to a very few land owners.
An explanation of why SE Ohio is getting all this frack waste, which I heard from an oil and gas worker who signed the petition for the county charter, is that depositing the waste in areas promising for further gas and oil extractions risks fouling the very fossil fuels being sought. For this reason the oil and gas companies would rather dump the fracking wastes in an area like SE Ohio, whose geology is still suitable for dumping, but which is highly unlikely to become a source of gas and oil.
One concern raised during the discussion was whether the charters might make it possible for the county residents to make decisions which later might be regretted. That concern raises the very issue of democracy itself. There may, of course, be unintended consequences of democratically based decisions, but there are unintended consequences of decisions made by tyrants or even by well-intended democratic governments at the state or federal level. Do we trust the people to make good decisions for themselves or do we want oligarchs or other elites to govern us. The American decision back in 1776 was that the people should rule. Taking matters in our own hands, as the American revolutionaries did, is the stuff of democracy itself. Adopting the charter in defiance of the state law and appealing to inalienable rights guaranteed in the Constitution stands in the tradition of those who signed the Declaration of Independence.
A related question is whether regulatory law should be done at the local, state or federal levels. An argument can certainly be made that everyone in the country should be entitled to the same protections, if these protections constitute inalienable rights. If either the Federal Government or Ohio had been protecting our rights to clean air, water and soil by appropriate regulation of injection wells, we would not now be seeking local charters; government at any level can fail to protect the rights of the people. When states failed to prohibit segregation, the federal government stepped in, and rightly so. When federal and state governments fail to protect our liberties, what recourse do we have except to act locally, as individuals or as communities? In terms of regulatory law, perhaps there should be a floor established at higher levels, but with the right of local communities reserved to achieve greater protection for themselves. Regulatory law at the federal or state levels may not always be suited for all regional variations. Surely there is an appropriate role for local action like we are taking in Athens and Meigs Counties.
Democracy Day participants appreciated the fine lunch and excellent facilities provided by Lodi Township folks.
John N. Howell, Coordinator of Democracy Over Corporations
P.S. One idea raised was the generation of a local municipal power company to promote the use of renewable energy. According to a recent article, creation of public monopolies, which displace private companies, would be outlawed under the terms of the Trans Pacific Partnership Trade Agreement. That would seem to prevent Athens from establishing its own power company. The TPP would also eliminate public banking, which is the thrust of the article. (http://www.truthdig.com/report/page2/fast-track_hands_the_money_monopoly_to_private_bankspermanently_20150613) These are reasons, among others, to inundate representatives over the next few days with communications opposing the TPP. It will come up both in the House and the Senate.