How To Respond When Your (Local) Government Gets Sued By A Corporation
by: Tish O’Dell Posted on: January 05, 2016
Editor’s Note: This piece, by Tish O’Dell of the Community Environmental Legal Defense Fund (CELDF) and Ohio Community Rights Network, was written in June 2015, in response to an op-ed written by an Energy in Depth representative, available here. It offers a poignant look a serious threat facing many local governments in the United States and beyond: what should you do if you face a corporate lawsuit that could bankrupt your government?
We publish this piece on January 5, 2016, the week petitioners for Broadview Heights, Ohio’s 2012 Community Bill of Rights are finally being given their day in court. The petitioners were repeatedly refused standing in court after gas companies took the town to court over the 2012 Community Bill of Rights that banned fracking and established a right to local self-government to heighten local health, safety and welfare protections.
According to a Ohio Community Rights Network press release: “Since November 2012, when the City’s voters overwhelmingly adopted their Community Bill of Rights charter amendment banning fracking, the people of this Cleveland suburb have been fighting to enforce their amendment and protect their rights to clean air, water, and local self-government. In one case between the City of Broadview Heights and the drilling corporations, the people were denied intervention. Then, in the people’s class action lawsuit filed in December 2014, the common pleas judge denied oral arguments.”
This article is in response to a recent opinion piece submitted by Jackie Stewart of Energy in Depth, an oil and gas lobbyist organization. I hope to clear the mistruths and false accusations asserted by Ms. Stewart at both CELDF and the communities pursuing Community Rights in Ohio.
Ms. Stewart opens by referring to CELDF as a “ban fracking” group who targets communities. This is false on two counts. 1: CELDF is not about banning anything. We are a public interest law firm assisting communities to assert their inalienable rights to local self-government and a healthy environment – which are threatened daily by fracking, injection of fracking waste, sludge application, water withdrawals, and GMOs, to name a few. 2. We do not “target” communities. Rather, communities contact us when they are targeted by unwanted corporate activities that they quickly learn they are unable to stop.
In the second paragraph, Ms. Stewart refers to recent Ohio court cases, including Bass Energy, Inc. and Ohio Valley Energy Systems Corp vs. City of Broadview Heights, OH. Broadview Heights is my hometown. In November 2012, 67% of voters adopted our Community Bill of Rights, securing our rights to clean air and water, and banning fracking as a violation of those rights. Most of us know this as direct democracy and decision-making by consent of the governed.
Two corporations decided their corporate “right” to frack was being violated, and sued the City. Ms. Stewart quotes our Law Director, Vince Ruffa, who has repeatedly spoken out against our Bill of Rights, and has consistently argued that the state has sole authority to control our community. He has been, and continues to be, on the same side as the oil and gas industry. The very person who disagreed with the will of the people, was the same person who defended our Bill of Rights when it was challenged in court.
It was a feeble defense. It makes sense that Ruffa admits there is no basis for an appeal, because his defense was so poor. Rather than defending the people’s inalienable rights, he made a weak effort to argue for the municipality’s authority under Home Rule – which the state legislature has been eroding for years.
Ms. Stewart also quotes Judge Michael Astrab, who decided the case. Why is it that the Judge displayed such concern for the claimed “rights” of the drilling companies, but failed to recognize that the people of Broadview Heights have inalienable rights that cannot be superseded by state government or corporations? Oh – that’s right – because Law Director Ruffa failed to defend the people’s inalienable rights. The peoples’ rights are not even a consideration in Judge Ashtrab’s courtroom.
It makes it very clear: Under our current Law Director and Judge Astrab, the people of Broadview Heights have no inalienable right to govern themselves; to make any decisions about fracking; to protect their clean air and water; or to create the sustainable community they envision for their children.
The cherry on top? This is the same judge who denied the peoples’ request to intervene in this lawsuit in order to defend their rights in court. Instead, he determined they had “no interest” in the case, and kept the residents and their legal counsel out of the courtroom completely.
Ms. Stewart then turns to the Munroe Falls case, which was decided by the Ohio Supreme Court a few months ago – unsurprisingly in favor of the corporations. [This case reaffirmed the State of Ohio’s sole authority over oil and gas zoning.] However, Ms. Stewart ignores the distinction between these two cases. The City of Munroe Falls, whose local fracking law was stuck down in the case, did not assert their inalienable right to local self-government, and to clean air and water. They were not trying to stop fracking. Instead, they argued they had a right to regulate it. But even when we regulate fracking, we’re still being harmed. Broadview Heights residents prohibited new drilling, because they were unwilling to risk their community for corporate profits.
Ms. Stewart, clearly having a propensity for quotes, failed to quote from Supreme Court Justice O’Neill’s dissenting opinion in that case:
“The Ohio General Assembly has created a zookeeper to feed the elephant in the living room. What the drilling industry has bought and paid for in campaign contributions they shall receive.”
I don’t think I could have said it better myself!
The remainder of Ms. Stewart’s rant against CELDF and Community Rights relates to the exorbitant amount of money that it will cost communities who even think about challenging the oil and gas industry’s claimed “rights” to pillage our communities for their profit. It’s a longstanding technique that bullies have used to intimidate others. In Ms. Stewart’s story, it goes like this: Communities adopt a Bill of Rights; community is sued for “millions of dollars.”
It is similar to a “blame the victim” strategy to accuse the Community Bill of Rights of potentially costing the community anything. The rights-based laws being adopted by communities across the country are simply an assertion of inalienable rights possessed by the people inherently, and codified in law. It is the oil and gas industry that is responsible for forcing a community to defend their rights. It is the industry threatening to sue the people for damages. It is therefore, the industry that is responsible for bankrupting a community, should that occur.
Stewart mentions Mora County, NM, and refers to it as one of the “poorest counties in the state.” Is she implying that because they are poor and do not have the economic means to defend their rights, they should just accept the invasion of their county and allow the industry to have its way with them?
Is this why the drilling industry targets poor communities in Ohio as a dumping ground for their waste?
Finally, as a Broadview Heights resident, I have wondered what would happen if Broadview Heights had to file bankruptcy. I realize it would mean that we would wind up “under state control.” But if we the people of Broadview Heights have no right to make laws in our community, how is being “under state control” any different than what we live under today?
We have no doubt that your industry will wield its power and wealth and continue attempting to stifle the people’s ability to exercise democracy, to protect our rights, and to create the communities we envision. If nothing, you are predictable in your efforts to thwart democracy – including changing election laws to make it more difficult for people to exercise their rights.
Ohio communities don’t have huge checkbooks to buy laws passed in our favor. We don’t have the funds to purchase TV, radio, and print ads to counter the propaganda spewed out by the oil and gas industry. We’re on the receiving end of threats and intimidation tactics by industry lawyers. And yet, as Ms. Stewart notes, community rights campaigns continue to spread throughout Ohio – despite the court decisions, despite poverty, despite the threats and intimidation. Or maybe it’s because of those things – more and more of us are willing to stand up and protect our rights and our communities. We know that if we don’t, our communities will be devastated in the aftermath, and we will be leaving an even bigger problem for our children.
Editor’s Note: Read our previous coverage of Broadview Heights here: http://readthedirt.org/the-story-of-broadview-heights-ohio
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