What Is 'Frackgate?' Inside Ohio's Fracking Controversy. A lame-duck legislative amendment passed by the Ohio Senate last week is the latest chapter in a debate over whether and how to allow oil and gas drilling under state parks and other public lands in Ohio.

By Kathian M. Kowalski

This story originally appeared on Energy News Network

Barkcamp State Park is among the few places where visitors can experience Ohio's forests as they existed before European settlement. Once the site of a historic logging camp, today it's a destination for camping, fishing, and other outdoor recreation.

It's also a place that could see new pressure for oil and gas development if Ohio lawmakers approve lame-duck legislation this month that would remove barriers to drilling under public lands.

Neither supporters nor critics have singled out specific parks that could be of interest to the industry, but a planning document from a previous governor's administration reveals at least three areas where oil and gas extraction might occur. They include Barkcamp, as well as Wolf Run State Park and Suncreek Fish State Forest.

That document — a strategic communications plan developed by members of the Kasich administration and the Ohio Department of Natural Resources in 2012 — ignited a political controversy known as Frackgate after it became public two years later. It also predicted the backlash that would be likely to follow any proposal to drill under state parks.

"Vocal opponents of this initiative will react emotionally, communicate aggressively to the news media and online, and attempt to cast it as unprecedented and risky state policy," the communication plan said.

For over a decade, Ohio law has said an agency "may" lease land for oil and gas drilling. House Bill 507, which passed the Ohio Senate last week without any public testimony on its last-minute amendments, would change that to say the agency "shall" lease the land "in good faith."

If the bill becomes law, "the state agency essentially has to — must — lease the land when the oil and gas company shows up at the door and demands the lease," said attorney Nathan Johnson, director of public lands for the Ohio Environmental Council. In his view, the amendment would give free rein to oil and gas companies, with few safeguards for competing public interests or the environment.

The same legislation would also declare natural gas to be "green energy."

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The history

A 2011 law created an oil and gas leasing commission and outlined a framework for it to decide whether to grant permits for drilling and to enter into leases through a competitive bidding process. Lawmakers passed the bill, and Gov. John Kasich signed it roughly a year before another law opened the state to widespread fracking and horizontal drilling.

By the summer of 2012, members of the Kasich administration, Ohio Department of Natural Resources and others put together the strategic communications plan before potentially moving ahead with drilling at Barkcamp, Wolf Run, and Sunfish Creek. All three are located in counties that are among Ohio's top seven oil and gas producers.

The communications plan became public in early 2014 and resulted in outcry from the Sierra Club, the Ohio Environmental Council, ProgressOhio, and other groups. Days later, Kasich said he had changed his position about drilling on state public lands. A pro-industry newsletter predicted "Frackgate" would remain an issue in Ohio for a while.

A 2015 bill initially would have required drilling in some cases under state public lands but was amended in committee to exclude drilling under state parks. The House passed the bill, but it didn't come to a vote in the Senate.

Meanwhile, Kasich did not appoint anyone to the leasing commission that would decide on permissive permits. Terms in a 2017 budget bill then sought to strip the governor of his power to name commission members, and the House voted to override Kasich's veto. Faced with possible defeat, he began making appointments.

Gov. Mike DeWine continued to appoint individuals to the commission, which has been taking some action. Comments on a proposed standard lease form are due Jan. 13. However, final rules for the leasing procedures still have not yet been adopted.

In the meantime, the 2011 law leaves leasing issues up to individual state agencies. Some limited drilling on state public lands has taken place under current law. Some political subdivisions have also entered into leases, including the Muskingum Watershed Conservancy District.

Where we are now

Oil and gas companies "currently have the right to drill under state land. But there is no deadline, there's not a real expedited process by which they can drill," said committee chair Sen. Tim Schaffer, R-Lancaster, when the Agriculture and Natural Resources Committee discussed HB 507 on Dec. 6. Some proceedings drag on for years, he added.

"It's in current law that we can do this, and these drillers could do this," Schaffer said. "And it's very strictly designed to make sure that we are protecting the environment. We are protecting public lands."

Current statutes call for consideration of whether drilling would conflict with other uses of the public land, as well as its environmental impacts and possible geological consequences. It's unclear how those provisions would apply before the leasing commission adopts rules for reviewing proposed parcels to be drilled and accepting bids on them.

Language in the amendment appears to call for little more than a showing of parcel identification and registration, proof of insurance, and satisfaction of financial assurance requirements. The legislative synopsis for the new bill language said it "requires, rather than authorizes, each state agency to lease agency-owned or -controlled oil and gas resources for development prior to the date that rules governing leasing procedures are adopted by the Oil and Gas Land Management Commission."

"This amendment is really a power grab by the oil and gas industry," said Johnson. Agencies would lose their discretionary authority, and the industry would get to say where and when drilling would happen on state public lands, he said. "It's putting the fox in charge of the henhouse."

"We strongly disagree," said Rob Brundrett, president of the Ohio Oil and Gas Association, noting that terms of a lease would still have to be just and reasonable. In his view, HB 507 would just move the process along, especially where smaller parcels are part of larger areas that horizontal drilling would pass under. Such plots of land are often owned or overseen by agencies like the Ohio Department of Transportation and Department of Administrative Services, he noted.

"The amendment does not interfere or conflict with any other interest in state lands," Brundett said. Any leases would still have to be "on just and reasonable terms," and using the surface of state lands for development purposes would be prohibited, "unless the state agrees."

Critics worry the new bill wording might not let agencies say no.

"The language change from 'may' to 'shall' changes the very basis of the review process from leasing being permissive to being required. It takes it from 'You can do this' to 'You have to do this,'" said Neil Waggoner, who heads the Sierra Club's Beyond Coal campaign in Ohio. He and others also worry about oil and gas operations in state parks and forests.

"This is all about going underground, from outside a park facility or whatsoever. … As citizens use the park, they would never know the difference because it's not above land," Schaffer said.

But HB 507's wording contemplates possible agreement to surface operations, if an agency agrees. In contrast, the 2015 bill passed by the Ohio House expressly excluded any operations in or under state parks and forbid surface drilling in state forests.

"No one wants a fracking rig in a state park," Waggoner said.

The House could agree to the amended version as early as Tuesday, Dec. 13.

Asked if DeWine would veto either the whole bill or portions dealing with natural gas, spokesperson Dan Tierney said they are reviewing the bill and have not yet taken a formal position.

Wavy Line

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