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Ohio Municipal League email:
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May 11, 2004 Honorable Robert Taft Dear Governor Taft: On behalf of the Ohio Municipal League and its Board of Trustees, I would like to express our strong opposition to HB278, Rep. Niehaus’ Oil & Gas well regulation legislation, and request that you use your authority to veto the bill. Our opposition to HB278 is very straightforward: we do not believe that the General Assembly should attempt to rip from the hands of municipal government major land use decisions and give that power, through the promulgation of rules, to the Department of Natural Resources. If all of these regulations are so important, why are they not done as statute? As you know, administrative regulation development and enactment are often less susceptible to full public scrutiny and more susceptible to influence by the regulated community. Whether such a transfer pertained to the siting of oil and gas wells or other specific industries, we believe that such matters are best decided locally. Furthermore, we believe that such regulatory power is vested in municipal government by the Home Rule clause of the Ohio Constitution. This Home Rule power granted municipalities through the Constitution should not be viewed as one does a cafeteria, where the General Assembly can pick by fiat when it exists and when it doesn’t. It is exactly that kind of picking and choosing that led to the citizens of Ohio to place the Home Rule provision in the Constitution. If this bill is enacted for the oil & gas industry, our members will wonder what other industry the General Assembly will believe in the future should have a free pass around local planning and zoning. If an oil & gas well is appropriate in every schoolyard and residential neighborhood, what other industry will the General Assembly deem so important as to be next offered such a free pass? Lastly, this legislation will probably not appreciably increase the amount of natural gas available to Ohio citizens and there is no meaningful assurance that it will hold the line on or lower prices. What it does mean is that municipalities that wish to protect their residents will have to go to court to prove that once again they have the authority to do so. Page 2 Accompanying this letter, please find a copy of an opinion review of HB278 from our legal counsel, John Gotherman, on the Constitutional conflicts in the bill’s eliminating a municipality’s ability to regulate locally. Mr Gotherman points out that the test we need to look at is one of conflict and not all out preemption. Municipalities, under Article XVIII, Section 3 of the Ohio Constitution, are granted all powers of local self government. As to police powers, which this is, this same section of the Constitution allows municipalities to exercise concurrent power with the state’s authority where such municipal power does not create a conflict. Furthermore, the state statute must be a general law; in other words, it must really do some substantive regulating. It can’t just say cities and villages can’t regulate. Numerous court decisions say all of this in much more learned terminology and some of them very recently. It is our sincere hope that you take into consideration all of these facts and determine with us that HB278 is legislation that further erodes the express rights of municipalities Home Rule provisions of the Ohio Constitutions and that you will veto the measure. Thank you for your consideration.
Sincerely,
Susan J. Cave Enclosure Cc: Kate Bartter, Executive Assistant |
