An Ohio commission is arguing its decisions last fall to allow oil and gas drilling under a state park and two wildlife areas are final and cannot be appealed.
Environmental groups challenging the Ohio Oil & Gas Land Management Commission say it failed to follow state law when it approved land parcels for leasing of drilling rights at Salt Fork State Park, Zepernick Wildlife Area and Valley Run Wildlife Area. Among other things, state law says the commission must consider nine factors in reaching its decisions, including environmental impacts, consequences for visitors or users of state lands, public comments or objections, economic issues, and others.
State lawyers have filed a motion to dismiss, claiming the court can’t review the decisions because the statute doesn’t expressly provide for judicial review.
The plaintiffs seeking to overturn the decisions, though, say the commission’s actions affect their rights and amounted to licensing, which can be appealed under the Ohio Revised Code.
“Our courts play a critical role in overseeing agency decisions to make sure agencies do not abuse the discretion and power the law gives them. Our lawsuit asks that the court provide that critical oversight here,” said Megan Hunter, an attorney with Earthjustice, on behalf of the plaintiffs. Those environmental groups are Save Ohio Parks, the Ohio Environmental Council, the Buckeye Environmental Network and Backcountry Hunters and Anglers.
“Ohio statute has set up a system where an oil and gas company can hand-select those public lands it wants to lease and ask the commission for permission to move forward with the process for it to do so,” Hunter added. “The law places the commission in a gatekeeping role, making them the ones to determine whether an oil and gas company should be able to lease a particular state park or wildlife area.”
And while a winning bidder has to apply for permits to drill, Ohioans generally have no right to appeal permitting decisions, she said. “Therefore, the appeal from the nominations is when there is an opportunity for judicial review of the decision to drill under these state lands.”
Commission chair Ryan Richardson admitted that the commission would need to consider the nine statutory criteria in a Nov. 2 affidavit filed in a related case. Yet the commissioners did not discuss all nine factors at the public meeting where they voted to grant the proposals. Nor did they provide any written opinion explaining how they weighed the nine criteria.
“This is not the way justice is supposed to happen in Ohio or anywhere else in a democracy,” said Melinda Zemper, a member of Save Ohio Parks.
A troubled record
The case is further complicated by the commission’s insistence on moving ahead before the Ohio Attorney General’s office resolves an investigation into claims about allegedly falsified comments that favored fracking under state parks and wildlife areas.
“The [commission’s] decision to approve fracking in Ohio parks undermines core principles of good governance, for it occurred despite an ongoing investigation and enormous public pushback,” said Chris Tavenor, associate general counsel and managing director of democracy policy for the Ohio Environmental Council. The decisions also mean Ohio will be a less healthy place to live and have more greenhouse gas emissions, he said. As of 2021, the Energy Information Administration ranked Ohio fifth among states for total carbon dioxide emissions, he noted.
The commission’s failure to let citizens testify at its meetings also undermined the trust of Ohio citizens and denied them their rights to participate in the process, said Loraine McCosker, a co-founder and member of Save Ohio Parks. A separate lawsuit challenges the constitutionality of House Bill 507, which jump-started the challenged decisions, but where citizen groups had no chance to testify against its natural gas provisions after they were added through last-minute amendments in late 2022.
The appeal doesn’t automatically stay the public bidding period for the drilling rights, which began Jan. 3 and runs through Feb. 4. Spokesperson Andy Chow said the commission does not comment on pending litigation. However, he noted, the commission is currently working to schedule its next meeting to decide on the winning bids.
Once companies have secured drilling rights, they would be free to apply for permits to drill wells. Ohio law generally provides up to 21 days for review of those applications, except for urban areas, where a 30-day review period applies. The average review time generally has been running 15 to 18 days, Chow said. So, barring any stay from a court, well construction could start as early as this spring.
Briefing on the question wrapped up last week in the Franklin County Court of Common Pleas, and the state’s motion to dismiss is now ready for review by Judge Jaiza Page.