State ex rel. Morrison v. Beck Energy Corp.

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2 State ex rel. Morrison v. Beck Energy Corp. The standard précis may frame the issue of State ex rel. Morrison v. Beck Energy Corp. as whether a municipality may use its home rule authority to enforce its own oil and gas permitting scheme atop the state permitting regulations provided by Ohio Revised Code Chapter Interested parties on both sides of the issue were hoping for Ohio s high court to definitively decide whether municipalities may retain zoning powers over the placement of oil and gas wells, but the unique nature of Munroe Falls ordinances allowed the court to limit its holding to the ordinances at issue. Ultimately, the case s limited holding relies on one s characterization of Munroe Falls zoning ordinances. In 2004, the Ohio General Assembly centralized oil and gas drilling regulatory power in Ohio Revised Code Chapter 1509, entrusting ODNR with sole and exclusive authority to regulate the permitting, location, and spacing of oil and gas wells and production operations within Ohio. In 2011, Beck Energy applied to ODNR, Division of Oil and Gas, for a permit. The location of the proposed well was within the municipal corporation of Munroe Falls and was zoned residential. Soon after Beck Energy began drilling, the city issued a stop-work order and filed a complaint seeking injunctive relief in the Summit County Court of Common Pleas. The complaint alleged that Beck Energy was violating multiple provisions of the Munroe Falls Codified Ordinances. This appeal concerns five of those ordinances, which the city passed between 1980 and Morrison at 7. One of the ordinances was a general zoning ordinance (Munroe Falls Codified Ordinances ), and the other four ordinances specifically regulated oil and gas operations (Munroe Falls Codified Ordinances, Chapter 1329). Under Ohio law, a municipal ordinance is preempted by a state statute if (1) the municipal ordinance is an exercise of the police power, rather than of local self-government, (2) the state statute is a general law, and (3) the ordinance is in conflict with the statute. In this case, the bulk of the analysis surrounded the third factor of this test. The lead opinion, written by Justice French and joined by Chief Justice O Connor and Justice Kennedy, held that Munroe Falls ordinance conflicted with the statute under the theory that the ordinances prohibited what the statute allowed. Justice O Donnell concurred in judgment only, emphasizing that the holding was limited to the Munroe Falls ordinances at issue and commenting that it was the unique nature of Munroe Falls zoning ordinance that created the conflict. Justice Lanzinger s dissent touched on many of the same points as Justice O Donnell s concurrence, but emphasized that there was no conflict because the legislature did not specifically preempt zoning. Justices Pfeifer and O Neill joined the dissent. Commentators have seen the opinion as a temporary win for ODNR and the industry, with Calfee Halter commenting the Court left open the possibility that municipalities may be able to enforce general zoning regulations against oil and gas drilling. An attorney from Ohio Environmental Council echoed that sentiment: Ironically, while the city of Munroe Falls lost its appeal, other cities may be emboldened by the opinion. Specifically, Justice O Donnell s concurring opinion hinted that a majority of the court would approve local zoning of oil and gas operations in the future if the ordinances are carefully structured.

3 Key portions of each opinion are reproduced below. Justice French s lead opinion: A conflict exists if the ordinance permits or licenses that which the statute forbids and prohibits, and vice versa. Morrison at 24. The city s ordinances conflict with R.C in two ways. First, they prohibit what R.C allows: state-licensed oil and gas production within Munroe Falls. Morrison at 25. This is a classic licensing conflict under our home-rule precedent. We have consistently held that a municipal-licensing ordinance conflicts with a state-licensing scheme if the local ordinance restricts an activity which a state license permits. Morrison at 26. Because Beck Energy obtained a valid state permit in accordance with R.C. Chapter 1509, the city cannot extinguish privileges arising thereunder through the enforcement of zoning regulations. Morrison at 28. The city s ordinances create a second type of conflict with R.C In determining whether a conflict does exist, a court refers to the language of the statute to determine whether the General Assembly intended to preempt local regulation on the subject. [ ] R.C not only gives ODNR sole and exclusive authority to regulate the permitting, location, and spacing of oil and gas wells and production operations within Ohio; it explicitly reserves for the state, to the exclusion of local governments, the right to regulate all aspects of the location, drilling, and operation of oil and gas wells, including permitting relating to those activities. Morrison at 29, 30. The city presents a variety of policy reasons why local governments and the state should work together, with the state controlling the details of well construction and operations and the municipalities designating which land within their borders is available for those activities. This is no doubt an interesting policy question, but it is one for our elected representatives in the General Assembly, not the judiciary. The issue before us is not whether the law should generally allow municipalities to have concurrent regulatory authority, but whether R.C and the Home Rule Amendment do allow for the kind of double licensing at issue here. They do not. We make no judgment as to whether other ordinances could coexist with the General Assembly s comprehensive regulatory scheme. Rather, our holding is limited to the five municipal ordinances at issue in this case. Morrison at 33.

4 Justice O Donnell s concurrence: Because the zoning code incorporates the parallel municipal permitting scheme that is applicable only to oil and gas wells before allowing drilling as a conditional use, it too conflicts with general law and is also preempted by R.C. Chapter [ ] I write separately to emphasize the limited scope of our decision; our holding is limited to the five municipal ordinances at issue in this case. Morrison 37, 38. [I]n my view, it remains to be decided whether the General Assembly intended to wholly supplant all local zoning ordinances limiting land uses to certain zoning districts without regulating the details of oil and gas drilling expressly addressed by R.C. Chapter Morrison 39. We are obliged to accord a strong presumption * * * in favor of the validity of [a zoning] ordinance. In addition, R.C provides that when statutory provisions such as R.C and appear to conflict, they shall be construed, if possible, so that effect is given to both. [ ] Generally, when construing a statute, our paramount concern is the legislative intent in the statute's enactment, and to discern this intent, we read words and phrases in context according to the rules of grammar and common usage. But pursuant to R.C. 1.42, Words and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly. Morrison 42. R.C vests ODNR with sole and exclusive authority to regulate the location and spacing of oil and gas wells, but location and spacing have specialized, technical meanings in oil and gas law. As a leading treatise explains, The purposes of statutes and administrative orders fixing the location of oil and gas wells with respect to surface property lines and other wells are to protect the rights of land or mineral owners by preventing net drainage between tracts, to prevent economic waste resulting from the draining of unnecessary wells and to prevent physical waste which may be caused by crowded drilling operations. 1 Summers, The Law of Oil & Gas, Section 5.1, at 268 (3d Ed.2004). Morrison 43. The terms location and spacing thus relate to the placement of wells on a tract in relation to the resource pool and to each other. Scientific expertise regarding the physical characteristics of oil and gas reserves is required to efficiently produce oil and gas, prevent waste, and protect the correlative rights of neighbors, which is the basis for regulating the location and spacing of wells in the first place. In contrast, that same scientific and regulatory expertise is not required to determine whether an oil and gas well is compatible with the character and aesthetics of a particular zoning district, such as a residential neighborhood, and we generally presume that zoning authorities are far more

5 familiar with local conditions and therefore are better able to make land use decisions. We also expect that those who make land use decisions will be directly accountable to the people affected by them. Regulators at ODNR, on the other hand, are not. Morrison 44. Courts of last resort in other jurisdictions have declined to view preemptive language in oil and gas statutes that preclude all local regulation of oil and gas drilling as irreconcilable with local zoning laws. Wallach v. Dryden, 23 N.Y.3d 728, 992 N.Y.S.2d 710 (NY 2014) Huntley & Huntley, Inc. v. Oakmont Borough Council, 600 Pa. 207, 964 A.2d 855 (PA 2009) La Plata Cty. Bd. of Commrs. v. Bowen/Edwards Assocs., Inc., 830 P.2d 1045, 1057 (CO 1992) Morrison 45. If the legislature had intended to override all local zoning ordinances that affect oil and gas drilling, it could have declared that intent, such as it did in the case of hazardous waste facilities, R.C (E), public utilities, R.C (A), casinos, R.C (A), and licensed residential facilities, R.C (P). It could also have created a statutory scheme that addresses local land use and planning issues. Yet it did not do so. Morrison 46. Justice Lanzinger s dissent: The General Assembly knows how to specifically prohibit the enforcement of local zoning ordinances as part of a statewide and comprehensive legislative scheme. See, e.g., R.C (E) (hazardous waste); R.C (A) (casinos); R.C (foster homes); R.C (day-care homes). R.C. Chapter 1509 has no similar language. Morrison at 60. What I believe must be recognized is that the state and the local authority have differing interests in this important matter. The purpose of comprehensive local zoning is exercise of local police power to promote the health, safety, and general welfare of the public. The purpose of R.C. Chapter 1509 is to regulate methods of producing oil and gas statewide. R.C These legislative purposes are distinct, and together they present dual conditions to the operation of the oil and gas industry. Morrison at 64. The five ordinances of Munroe Falls were struck down by the court of appeals as though the city were attempting to impose its own requirements on the oil and gas drilling industry. The court of appeals looked at the ordinances as supplanting rather than as supplementing state regulation. No court has yet examined whether these city ordinances can stand separate and apart as zoning regulations that supplement the state regulatory scheme. I would return this case to the appellate court to do so. Morrison at 65.

6 Justice Lanzinger s dissent also discusses the NY, PA, and CO cases at length: I contend that Ohio, too, should make an effort to harmonize the laws of the state and local municipalities to avoid preemption, if possible. R.C. Chapter 1509 does not expressly prohibit the enforcement of local zoning ordinances. Municipal zoning ordinances differ from, and can coexist with, R.C. Chapter 1509 and its statewide regulations governing drilling. Morrison at 74. Justice O Neill s dissent put things more bluntly. It is reproduced here in its entirety: I join Justice Lanzinger s well-written dissent. Let s be clear here. 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. The oil and gas industry has gotten its way, and local control of drilling-location decisions has been unceremoniously taken away from the citizens of Ohio. Under this ruling, a drilling permit could be granted in the exquisite residential neighborhoods of Upper Arlington, Shaker Heights, or the Village of Indian Hill local zoning dating back to 1920 be damned. Morrison at 76.

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21 AMENDED BILL # ORDINANCE # BY: MRS. HARING THE MANSFIELD CHEMICAL TRESPASS ORDINANCE Whereas, the City of Mansfield is concerned about the potential for waste being injected or disposed into the ground within the municipal boundaries of the City and, being harmful to its citizens and the environment. WHEREAS, one or more entities are desirous of injecting toxic waste resulting from the oil and gas industry into the City of Mansfield, and the City as a municipality has the power to enact laws that preserve the public health, safety and welfare of the municipality and it citizens, as granted to it by the Ohio Constitution, specifically sections, Municipal Powers, 1.01 Inalienable Rights, 1.02 Right to alter, reform, or abolish government, and repeal special privileges, 1.16 Redress in courts, and 1.19b Property rights in ground water, lakes, and other watercourses, and WHEREAS, it appears in new scientific studies that frack fluids can migrate toward drinking water sources much more quickly than previously expected, and current Ohio law does not require companies to sufficiently disclose critical information sufficient to establish causation and origin of the actual injection well contaminant, nor give adequate notice of potential dangers, thereby falling short of due process requirements guaranteed by the Constitution of the United States, WHEREAS, in 2012 the National Research Council of the National Academy in Washington DC, in a 223-page prepublication report concluded that underground injection wells used to dispose of fracking waste create a greater risk of seismic events, and WHEREAS, it is common knowledge that the construction, operation, management and injection or disposal of said frack fluid wastes involves the injection or disposal of unknown radioactive, toxic, carcinogenic, lubricant, and other chemicals and fluids, in vast amounts involving hundreds of thousands or millions of barrels of said injection fluid, and WHEREAS, it is an historical fact said injection or disposal wells and their construction and operation substantially raise the risk of drinking water contamination, landslides, earthquakes, seismic events, and other unknown threats to the health and safety of the City and its citizens, and WHEREAS, the construction, operation and injection or disposal of such fluids is hereby proclaimed to be an inherently dangerous activity threatening the health and safety of the City and its citizens, and WHEREAS, by virtue of this proclamation, all entities involved directly or indirectly in said inherently dangerous activity shall be and are mandated by the City of Mansfield to act with due diligence in taking all necessary precautions to minimize all foreseeable risk, dangers, damages, or harmful consequences to the health, safety, welfare, and property of the City of Mansfield and its citizens, including precautions beyond the minimum permit mandates of the State of Ohio or its regulatory entity, and WHEREAS, notwithstanding any permit issued by the State of Ohio to construct and operate injection or disposal wells on and under the parcel and/or parcels designated in said permit, the issuance of said permit, extends only to the State of Ohio permitting and consenting to injected or deposited disposal of said waste fluid to be contained within said permitted parcel and does not extend beyond the deed parameter boundaries of said

22 permitted parcel as recorded in the Richland County, Ohio Recorder s Office, and/or as designated in the said permit, and WHEREAS, the State of Ohio does note require the owners, operator, or permitted injection or disposal well entity to submit or post sufficient financial assurance, bonds, insurance, or other security sufficient in amount or duration to adequately cover the cost to clean-up, control, repair, or otherwise return to original condition any and all consequential environmental contamination, pollution or other health or ecosystem events, and/or to reimburse, compensate, or pay affected citizens for personal injury, damages, property loss, inconvenience, rental, or other consequential losses. NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF MANSFIELD, STATE OF OHIO: SECTION 1. That of Chapter 521 [Health, Safety and Sanitation] of the Mansfield Codified Ordinances, as amended, which shall be known as The Mansfield Chemical Trespass Ordinance, pertaining to the disposal of wastes, be, and the same is hereby, adopted and enacted to read as follows: 1. RIGHTS: (A) RIGHT TO SELF. All residents in the City of Mansfield possess a fundamental, inherent, and inalienable right to the physical integrity of their bodies. (B) RIGHT TO A HEALTHY ENVIRONMENT. All residents and ecosystems in the City of Manfield possess a fundamental, inherent, and inalienable right to a healthy environment, which shall include the right to unpolluted air, water, and soil. (C) RIGHT TO BE FREE FROM CHEMICAL TRESPASS. All residents and ecosystems in the City of Mansfield possess a fundamental, inherent, and inalienable right to be free from chemicals or chemical compounds used in the construction, operation, management, or use of injection and disposal wells associated with the fracking industry. The phrase chemical trespass shall mean the involuntary deposition of those chemicals or chemical compounds into a human body or into an ecosystem or natural community. 2. ULTRAHAZARDOUS ACTIVITY: The City of Mansfield, Ohio declares, proclaims, and establishes that the construction, operation, management, and/or injection or disposal of fluids or other oil and gas industry waste or byproducts by means of the transportation and/or injection or disposal of fluids through an injection or disposal well within the municipal limits is ultrahazardous and an inherently dangerous activity requiring the highest duty of care as to all foreseeable risks and dangers to health, safety, welfare, and property of the City of Mansfield and its citizens. 3. PROJECT REQUIREMENTS: (A) MIGRATION PROJECTION REQUIREMENT: At least 30 days prior to the initial commencement of construction of any State of Ohio permitted injection or disposal well within the City of Mansfield, the owners, operators, and other entity issued the permit shall submit to the Safety-Service Director of the City of Mansfield, a written 5-year, 10-year, and 30-year migration projection of the distance in feet from each permitted injection well, the projected distance of the migration of the injected or disposed fluid or any unknown fluid or portion thereof authorized by each permit. Such projections shall include credible supporting documents

23 and/or computer models. This required written migration projection report shall be in the form of a composite sworn affidavit. (B)APPLICATION TO SAFETY-SERVICE DIRECTOR: The Safety-Service Director shall adopt and promulgate reasonable application procedures and forms to be completed by the applicant before the City of Mansfield s Council shall consider granting legislative consent to the operation of an injection well. Such forms shall demand the following, but are not limited to, requirements of disclosure and consent to testing without notice, at any time, of chemical makeup and levels of radioactivity of fluids being injected. If chemical compounds are protected by State or federal laws regarding proprietary interests, applicants must still provide pertinent information regarding chemical families of the injected fluids prior to injection. No City legislative consent shall be granted without strict compliance and such conditional consent may be suspended for non-compliance at any time. (C)RESERVATION OF RIGHT TO OBTAIN SAMPLES AND TEST: Regardless of legislative consent, the City reserves the right to take samples of and test all transported fluids prior to injection. The reservation of this right grants the City the power to obtain samples and test fluids prior to injection, at will and without prior notice. In accordance with proprietary protections, the City shall only test for chemical families where testing for more specific compounds would violate applicable laws. (D)PROHIBITION OF MIGRATION BEYOND PERMITTED BOUNDARIES: No company, limited liability company, corporation, partnership, joint venture, sole proprietor, or any other entity or person shall be permitted to construct or operate any injection or disposal well within the City of Mansfield s municipal limits, where based upon all relevant factors, it is more likely than not that at anytime in the foreseeable future, the injected or disposed fluids or any portion thereof will migrate beyond the geographical and recorded boundaries of the parcel or land permitted by the State of Ohio or U.S. Government, or any of their regulatory authorities, unless otherwise consented to by the owners of each and all affected owners of affected parcels or lands. Affected owners of affected parcels or lands shall include lessees, lessors, and fee title holders of same upon or under which the injected fluids migrate. Any violation or anticipatory violation of the within prohibition or any portion of this ordinance shall be subject to injunctive or other relief, including compensatory and/or punitive damages, in the Common Pleas Court of Richland County, Ohio. (E)LIABILITY: The fact that a company, limited liability company, corporation, partnership, joint venture, sole proprietorship, or any other entity or person possessed and/or was issued an injection or disposal well permit from the State of Ohio or U.S. Government and/or their regulatory authority or designee, does not relieve said entity or person from civil or criminal liability. The issuance of said permit does not authorize any injury to persons or property or an invasion or violation of other property rights, or infringement of federal, state, or local common law, laws or regulations, including trespass. 4. CIVIL LIABILITY AND PRIVATE RIGHT OF ACTION FOR CHEMICAL TRESPASS: (A) STRICT LIABILITY: Corporations and other business entities engaged in the construction, operation, management or use of injection and disposal wells within the City of Mansfield shall be strictly liable for the deposition of chemicals or chemical compounds used by those

24 corporations or other business entities, into any person or ecosystem within the City of Mansfield. (B) RIGHT OF ACTION FOR TRESPASS: Any person, group of persons, or ecosystem shall have a right of action against corporations or other business entities engaged in the construction, operation, management, or use of injection and disposal wells within the City of Mansfield, if chemicals or chemical compounds used by those corporations or other business entities are detected within those persons or ecosystems. (C) BURDEN OF PROOF: The showing of the existence of chemicals or chemical compounds within the body of a person or ecosystem within the City of Mansfield, and the showing that a corporation or other business entity used that chemical or chemical compound in the construction, operation, management or use of injection or disposal wells, shall constitute a prima facie showing of causation under a strict liability standard, and shall shift the burden of proof to the corporation or other business entity to prove that it was not the cause of the deposition. (D) ENFORCEMENT OF ECOSYSTEM PROTECTIONS: Any resident or group of residents within the City of Mansfield may bring an action to secure or protect the rights of ecosystems and natural communities as provided within this Ordinance. That action shall be brought in the name of the affected natural community or ecosystem. (E) DAMAGES: Persons seeking civil liability for chemical trespass against a corporation or other business entity shall be entitled to recovery of attorneys fees, expert fees, compensatory damages resulting from the trespass, future medical monitoring damages, punitive damages, and injunctive relief to prevent the future deposition of those chemicals and chemical compounds. Damages to ecosystems and natural communities shall be measured by the cost of restoring the natural community or ecosystem to its pre-affected state, and shall be paid to the City of Mansfield as trustee to be used exclusively for the full and complete restoration of the natural community or ecosystem. This shall not affect damages owed to private property owners or private parties involved in a chemical trespass suit. 5. DEFINITIONS: (A) ECOSYSTEM: As used within this ordinance, the term shall include, but not be limited to, wetlands, streams, rivers, aquifers, and other water systems, as well as all naturally occurring habitats that sustain wildlife, flora and fauna, soil-dwelling or aquatic organisms. (B) NATURAL COMMUNITY: As used within this ordinance, the term shall include, but not be limited to, any diverse matrix of organisms living within a natural ecosystem, including wildlife, flora, fauna, soil-dwelling and aquatic organisms, as well as humans and human communities. 6. GENERAL APPLICATION: This prohibitory ordinance shall have general application in the City of Mansfield and shall pre-empt any City zoning ordinance or parts thereof inconsistent herewith, and is otherwise adopted pursuant to the plenary powers of the City of Mansfield. 7. SEVERABILITY: Should some provisions of this ordinance, or certain applications of these provisions, be found to be unenforceable or unconstitutional, the remaining provisions, or the remaining applications of these provisions, shall, nonetheless, continue in force and effect.

25 SECTION 2. That this measure shall take effect and be in force after the earliest time allowed by law, after its passage and approval by the Mayor. Caucus 16 October, st Reading 6 November, nd Reading PASSED 20 November, 2012 SIGNED /s/ Phillip E. Scott President ATTEST /s/ Amy L. Yockey APPROVED /s/ Timothy L. Theaker Clerk of Council Mayor APPROVED AS TO FORM: John R. Spon Law Director City of Mansfield, Ohio

26 Proposed Amendment to the Charter of the City of Mansfield Adding Section 1.03 BILL OF RIGHTS to Article 1 Name; Boundaries ; Form of Government ARTICLE I. NAME; BOUNDARIES; FORM OF GOVERNMENT; BILL OF RIGHTS Section Bill of Rights The rights of the citizens of the home rule municipality of the City of Mansfield and the corporate City of Mansfield are derived and flow directly by and from the Ohio Constitution and its Bill of Rights, and are secured by the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States. These rights include, but are not limited to, the Ohio Constitution s proclamation that: and and and 1.01 Inalienable Rights (1851) All men are, by nature, free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and seeking and obtaining happiness and safety Redress in courts (1851, amended 1912) All courts shall be open, and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law, and shall have justice administered without denial or delay. [Suits against the state.] Suits may be brought against the state, in such courts and in such manner, as may be provided by law. (As amended September 3, 1912.) 1.19b Property rights in ground water, lakes, and other watercourses [including but not limited to] (E) Ground water underlying privately owned land and nonnavigable waters located on or flowing through privately owned land shall not be held in trust by any governmental body. The state, and a political subdivision to the extent authorized by state law, may provide for the regulation of such waters. An owner of land voluntarily may convey to a governmental body the owner's property interest held in the ground water underlying the land or nonnavigable waters located on or flowing through the land.

27 1.02 Right to alter, reform, or abolish government, and repeal special privileges (1851) All political power is inherent in the people. Government is instituted for their equal protection and benefit, and they have the right to alter, reform, or abolish the same, whenever they may deem it necessary; and no special privileges or immunities shall ever be granted, that may not be altered, revoked, or repealed by the general assembly. IT IS FURTHER HEREBY PROCLAIMED BY THE HOME RULE MUNICIPALITY OF THE CITY OF MANSFIELD AND FOR THE PROTECTION OF ITSELF AND ITS CITIZENS AND FUTURE GENERATIONS, THAT EACH AND ALL SHALL POSSESS THE FOLLOWING INALIENABLE RIGHTS: (A) Right to Sustainable Water. All residents, natural communities and ecosystems in the City of Mansfield possess a fundamental and inalienable right to sustainably access, use, consume, and preserve water drawn from natural water cycles that provide water necessary to sustain life within the City. (B) Right to Clean Air. All residents, natural communities and ecosystems in the City of Mansfield possess a fundamental and inalienable right to breathe air untainted by toxins, carcinogens, particulates and other substances known to cause harm to health. (C) Right to Peaceful Enjoyment of Home. Residents of the City of Mansfield possess a fundamental and inalienable right to the peaceful enjoyment of their homes, free from interference, intrusion, nuisances or impediments to access and occupation. (D) Right to a Sustainable Energy Future. All residents in the City of Mansfield possess a right to a sustainable energy future, which includes, but is not limited to, the development, production, and use of energy from renewable fuel sources, including, but not limited to, water and air. (E) Right to Self-Government. All residents of the City of Mansfield possess the fundamental and inalienable right to a form of governance where they live which recognizes that all power is inherent in the people, that all free governments are founded on the people s authority and consent, and that corporate or other entities and their directors and managers shall not enjoy special privileges or powers under the law which make municipal community majorities subordinate to them. (F) People as Sovereign. The City of Mansfield shall be the governing authority responsible to, and governed by, the residents of the City. Use of the City of Mansfield municipal corporation by the sovereign people of the City to make law shall not be construed to limit or surrender the sovereign authority or immunities of the people to a municipal corporation that is subordinate to them in all respects at all times. The people at all times enjoy and retain an inalienable and indefeasible right to self-governance in the community where they reside. (G) Rights as Self-Executing. All rights delineated and secured by this Charter shall be selfexecuting and these rights shall be enforceable against corporations and governmental entities.

28 (H) Securing and Protecting Rights. To further secure and protect the rights enumerated by the aforementioned Bill of Rights: (1) It shall be unlawful for any person or corporation, or any director, officer, owner, or manager of a corporation or state government or any entity to use a corporation or state government or entity, to inject, deposit, store or transport waste water, produced water, frack water, brine or other materials, chemicals or by-products from the development of natural gas from shale formations, within, upon or through the land, air or waters of the City of Mansfield, without the written legislative consent of the City of Mansfield. (2) No permit, license, privilege or charter issued by any State or state government agency, Commission or Board to any person or any corporation or state government or any entity operating under State laws, or any director, officer, owner, or manager of a corporation or state government or any entity operating under State laws, which would violate the prohibitions of this Charter provision or deprive any City resident(s), of any rights, privileges, or immunities secured by this Charter, the Ohio Constitution, the United States Constitution, or other laws, shall be deemed valid within the City of Mansfield, without the written legislative consent of the City of Mansfield. (3) The provisions of this section are severable. If any court of competent jurisdiction decides that any sub-section, clause, sentence, part, or provision of this section is illegal, invalid, or unconstitutional, such decision shall not affect, impair, or invalidate any of the remaining sub-sections, clauses, sentences, parts, or provisions of this Bill of Rights and its prohibitions. The People of the City of Mansfield hereby declare that in the event of such a decision, and the determination that the court s ruling is legitimate, they would have enacted this amendment even without the sub-section, clause, sentence, part, or provision that the court decides is illegal, invalid, or unconstitutional. All inconsistent provisions of prior Ordinances and zoning Ordinances adopted at any time by the City of Mansfield are hereby held in abeyance, but shall take immediate effect in the event this Bill of Rights and its protective prohibitions are overturned, rejected, or held unlawful.