In Medina County, Ohio, the local prosecutor, sheriff and judge are not behaving the way the fossil fuel industry has come to expect. A pipeline venture known as NEXUS is seeking to move 1.5 billion cubic feet of fracked gas per day across Ohio, angering and galvanizing residents along the route. However, despite not yet receiving a critical permit from the US Federal Energy Regulatory Commission (FERC), Houston-based Spectra Energy and Detroit-based DTE Energy Co. have forged ahead with highly controversial surveying on private land. While most Ohio counties have streamlined access for NEXUS surveyors, Medina officials are cautiously resisting.
The project is caught in a Catch 22, and Medina County knows it. Without the permit, the pipeline has no right to access private land. But the company needs to complete the land surveys in order to qualify for the permit. Amidst this legal ambiguity, some opponents have even gone as far as arming themselves to keep persistent surveyors off their land. As one local headline put it in May: “Medina County man’s threat to surveyors: ‘We shoot to kill.’”
NEXUS requested temporary restraining orders against resisting property owners in Medina and several other Ohio counties. Spectra and DTE are desperate. As their lawyers explained in a July request for the Medina restraining order, “If NEXUS is unable to access the Properties, the entire permitting and construction timeline likely will be delayed.” In court documents, Spectra and DTE repeatedly claim they will lose $17 million for every month of delay. Surveying in Medina was supposed to be completed by July 27, 2015. That hasn’t happened.
Most counties quickly granted the restraining orders—despite no FERC permit. But not so in Medina, where surveying remains stalled. When surveying began there, Medina county prosecutor Dean Holman had written to his sheriff that NEXUS “should be considered a trespasser if it attempts to enter property without permission.” With no federal approval, their activities were of no “public use,” he explained; the project would need either consent from the property owners or a court order.
Soon after, NEXUS surveyors started showing up at people’s houses with off-duty sheriff department officers, demanding access to land. When news got out, the county sheriff told a local media outlet that he would never allow his officers to take a part-time job with NEXUS.
In mid-October, Medina Judge Christopher Collier tentatively put an end to the policy of refusing NEXUS land access. But unlike other county judges, he hedged his decision on the outcome of a forthcoming state appeals court decision. Though it was a favorable ruling for NEXUS, Collier didn’t go so far as to retroactively grant surveyors land access.
Despite the judge’s hedge, NEXUS promptly set off to survey Medina land. Property owners again refused them access, and they were once again backed by local officials, who said NEXUS would have to wait until the appeals process had concluded. “Because of positions adopted by the local sheriff and persecutors…NEXUS is not currently attempting to survey any other properties in Medina County,” the project grumpily conceded in a statement.
A network of Medina residents has been working to enforce Judge Collier’s order and keep surveyors away. One participant named Paul Gierosky wrote in an email to residents that “neighbors are being vigilant in watching for activity.” Gierosky went on to describe another altercation: “On October 19 a neighbor called Jon Strong and let him know a collection of NEXUS surveyors were being staged at a corner establishment. That led [Jon] to go out and see what was up, where it was found they were in full survey mode with 10-15 men. Jon confronted them and when asked if they had permission, the survey [leader] responded with ‘no.’ So Jon called the sheriff. The sheriff came and made them leave!”
NEXUS filed a motion for reconsideration on October 28, which was denied one week later by Judge Collier. “NEXUS,” wrote Collier, is worried that the Medina Court “has emboldened the defendants and objecting landowners in Medina County, as potentially in other counties.” Indeed, local judges in Summit and Erie County have similarly denied NEXUS requests for temporary restraining orders.
Not just, but legal
The resistance is heartening, but the truth is that the law is on NEXUS’ side. They have now filed for that FERC permit, and though there is no guarantee that it will be granted, the vast majority of pipelines do receive federal approval. Our legal system has co-evolved with the fossil fuel industry for over a century.
As one dissenting landowner lamented to local media: “When it’s strictly for a private company’s personal gain. Shuttling gas…so they can give it to their own customers, and they can take my land to do it? How is that just?”
It’s not just, but it is legal. The rights of property owners, once upheld by English common law to restrict industrialization, have been steadily degraded since the early 1800s. And a 2005 Supreme Court decision (Kelo vs. City of New London) found that corporations can invoke eminent domain to take private property, if they can show that planned development will generate tax revenue. Once reserved solely for the state, the power of eminent domain was effectively extended to private companies.
And that’s far from the only legal obstacle that Ohio’s fossil fuel resistance is contending with. “The environmental laws used to regulate these things are not on our side,” says Kathie Jones, a Medina resident. The Ohio Environmental Protection Agency is not allowing public hearings on controversial compressor stations to be built along the pipeline’s route. Two campaign groups, the FreshWater Accountability Project and Food & Water Watch, have issued a statement urging the agency to “accept citizen comments to gather testimony from communities and individuals affected by the…gas pipeline compressor stations proposed for operation across Ohio.”
NEXUS vs. Community Rights
Beyond the regulatory process, three “Community Bills of Rights” to ban fracking and associated infrastructure projects in Medina, Fulton, and Athens counties were removed from last month’s ballot in a unilateral decision by the Ohio Secretary of State, later upheld by the state Supreme Court.
These Community Bills of Rights were an expression of lack of faith in a regulatory process that they see as stacked in the pipeline’s favor. The documents, proposed via a citizens’ initiative, assert rights to local self-government, property, and a clean environment that local residents would have standing to enforce, federal permitting processes be damned. Drafted with support from the Community Environmental Legal Defense Fund, they defy existing legal structures, and include language elevating local rights above corporate privileges. As Medina County’s initiative reads, “corporations and other business entities that violate rights secured by this Charter…shall not be deemed to be ‘persons’ to the extent that such treatment would interfere with the rights.”
The Medina officials are using all the tools at their disposal to postpone the land surveying and protect their residents’ interests. However, these legal avenues will soon dry up.
If the Medina Community Bill of Rights had passed, says Kathie Jones, “it would have slowed the pipeline down because NEXUS would have had to file a lawsuit claiming that the clause in the Bill of Rights banning fracking and related pipelines was illegal and/or unconstitutional.” And even if NEXUS won that case, the appeal process would have further delayed the project.
But ultimately, the Community Bills of Rights are not just about delaying pipelines. They are broadly defiant documents, part of a national movement intent on deeply transforming our system of law.
Medina’s proposed Community Bill of Rights asserts that:
“All governments in the United States owe their existence to the people of the community that those governments serve, and governments exist to secure and protect the rights of the people and those communities. Any system of government that becomes destructive of those ends is not legitimate, lawful, or constitutional.”
In addition to flying in the face of legal doctrines that elevate corporate “persons” and preempt local communities from making decisions about fossil fuel infrastructure, these initiatives also affirm the rights of nature. Community Bills of Rights have been passed elsewhere in Ohio and in almost 200 municipalities across the US.
Could local officials be convinced to support this kind of democratic power?
Building local power
Across the country, local law enforcement agencies are being actively integrated into federal structures, including through Department of Homeland Security and FBI grants. Control is being centralized; from New York to LA, ever more local agencies are becoming ensnarled in the trend towards a more nationalized police force.
However, local control cannot be mistaken for community control. Many local police forces are anything but democratic. And when federal authorities fuse with local ones, often, the fossil fuel industry benefits.
Communities across the nation have passed bans on fossil fuel extraction, including in Ohio—but local law enforcement officials have never defended them against state or federal authorities. In a case that received extraordinary media attention, local officers arrested local protesters trying to defend the municipal fracking ban in Denton, TX.
Passing a law is one thing—building a movement to demand its enforcement is another. That may just be the lesson that people in Medina County are starting to learn.