Free to be Fracked: The Curious Constitutional Consequences of Ohio Gas Law

• Author: James T. O'Reilly
• Position: Professor of Law, University of Cincinnati College of Law
• Pages: 675-692

FREE TO BE FRACKED: THE CURIOUS

CONSTITUTIONAL CONSEQUENCES OF OHIO GAS LAW

JAMES T. O’REILLY*

I. INTRODUCTION

Drilling a deep bore hole sideways through shale rock, from the

bottom of a lengthy vertical shaft, allows a natural gas extraction driller to

reach thousands of feet away from that shaft by the lateral movement of a

drill bit.1 At the point where the lateral shaft hits the layer of surrounding

shale, a liquid blast of sand, chemicals, and water is pumped downward

under great pressure from diesel engines.2 The pressure “fract ures” the

shale, releasing bubbles of methane gas that had been trapped inside that

shale for many thousands of years.3 The gas bubbles up to the surface as

mud flows back up through the vertical shaft, and this gas is captured,

cleaned, and sold for gas energy uses.4 Unlike conventional oil and gas

extraction wells with multiple derricks that thrust their pipes vertically

downward into adjacent subsurface pools,5 “fracking” wells suck the gas

out of rock thousands of feet away from its vertical derrick without visibly

disrupting most of the surface above.6 Fracking technology is a

remarkable recent innovation with billions of dollars of effects, many

positive but some negative. Fracking now confronts the legal system of

Ohio with many sideways challenges. Will the fracking industry shatter

the system of individual rights and release profits for investors from China,

France, Oklahoma, and New York?

Copyright © 2013, James T. O’Reilly.

* Professor of Law, University of Cincinnati College of Law.

1 See Karen Moreau, How Fracking Works: Fears Are Based on Ignorance, N.Y. POST

(Sept. 27, 2011, 1:43 AM), http://www.nypost.com/p/news/opinion/opedcolumnists/how_

fracking_works_cKSUVaVvWedFdqfvNQ2q7H.

2 See id.

3 See id.

4 See id.

5 See Traditional Oil & Gas, PA. INDEP. OIL & GAS ASS’N, http://www.pioga.org/pa-oil-

gas/traditional/ (last visited Feb. 23, 2013).

6 See John Moore, Fracking Technology Brings Promise and Worries, CNBC (June 20,

2012, 9:41 AM), http://www.cnbc.com/id/47279955/Fracking_Technology_Brings_

Promise_and_Worries.

676 CAPITAL UNIVERSITY LAW REVIEW [41:675

Deep within Ohio’s public and private sector legal systems, this recent

phenomenon is radically changing some of our perceptions of Ohio

property rights, fair government administration, and the power of local

government to protect public health. Sucking out well-established “home

rule” policies and safety powers, the impacts of the fracking phenomenon

occur below the surface of public awareness, emerging very slowly as the

news media studies the external costs of this geological and political

revolution.

This Article offers one elected official’s view of the loss of the local

government home rule, one law professor’s view of the loss of

constitutional property rights, and one policy scholar’s view of the

deterioration of public policy that Ohioans on the surface have barely

begun to perceive. Having held the roles of an elected official,7 law

professor, and policy scholar for a decade or more, I can withstand all the

heat that this Article will generate. My current and former students need

jobs, so I welcome the gas drilling industry’s massive investment in hiring

talented lawyers and lobbyists,8 as the industry seeks to overcome the

skeptical views about the consequences of high-pressure gas extraction.

Fracking gas drillers should pay for their external damage, but recent

patterns suggest that they are more likely to pay for very expensive

rebuttals, rejecting compensation to victims and to neighbors, and rejecting

their assumption of cleanup costs from their Ohio profits.9 The earnings

from the gas industry’s sucking of Ohio’s subsurface riches are predicted

to be massive.10 Perhaps Ohio residents who want to learn other

7 I have served ten years on the city council of Wyoming, Ohio and have been a leader

in the regional council of governments and the consortium of suburbs around Cincinnati,

but the views expressed are my own.

8 For example, natural gas lobbyists spent $5 million in 2011 alone on lobbying

Pennsylvania’s legislature. Ellen M. Gilmer, Pennsylvania: Gas Lobbyists’ Spending

Spiked in Ramp-up to Drilling Bill, ENERGYWIRE (July 16, 2012), http://www.eenews.net/

ew/2012/07/16.

9 See, e.g., Nicholas Kusnetz, North Dakota’s Oil Boom Brings Damage Along with

Prosperity, PROPUBLICA (June 7, 2012, 9:47 AM), http://www.propublica.org/

article/the-other-fracking-north-dakotas-oil-boom-brings-damage-along-with-prosperi;

Mike Soraghan, Groundtruthing Academy Award Nominee “Gasland,” N.Y. TIMES (Feb.

24, 2011), http://www.nytimes.com/gwire/2011/02/24/24greenwire-groundtruthing-

academy-award-nominee-gasland-33228.h tml?pagewanted=all.

10 Spencer Hunt, “Fracking” Future, COLUMBUS DISPATCH, Sept. 25, 2011, at A8

(indicating that a 2011 industry report predicted $14 billion in investments in the next four

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