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In June 1969, the Cuyahoga River near Cleveland, Ohio, burst into flames. The river was a dumping ground for industrial waste and had previously caught fire several times.¹ Time magazine ran a picture on its cover of a 1952 fire that had caused even more damage.² The city of Cleveland “became a symbol of environmental degradation,” and the fire helped generate outrage at pollution and a desire to protect Ohio’s water.³

Nearly 50 years later, a community about an hour from Cleveland is also struggling with concerns about pollution from industrial waste and the safety of its drinking water. Rachel Hopkinson of Vienna, Ohio, has been concerned about her water since a 2015 spill at a nearby fracking wastewater injection well.⁴ The spill contaminated a pond by her house with unknown chemicals.⁵ “It’s still scary to think … that you could be exposed to it and not know until after you’ve exposed your children,” Hopkinson said.⁶

Parts of northeast Ohio have become dumping grounds for the massive amounts of water left over from fracking, a process for obtaining oil and natural gas from underground rock formations. Fracking entails injecting millions of gallons of water and chemicals to crack rocks containing the oil or natural gas. The resulting wastewater contains an unknown mix of industrial chemicals that can harm human health.⁷ A recent report from the U.S. Environmental Protection Agency found that some fracking operations have contaminated groundwater.⁸ The report recommended that policy makers focus on, among other factors, “discharge of inadequately treated hydraulic fracturing wastewater to surface water resources; and disposal or storage of hydraulic fracturing wastewater in unlined pits.”⁹

Many Ohio wastewater injection wells now store fracking waste from neighboring Pennsylvania and West Virginia.¹⁰ Ohio Citizen Action, a grassroots environmental group, said that fracking waste, if disposed of improperly, is “dangerous to clean drinking water,” and that in “every case it contains some elements that we don’t want in our water.”¹¹ The group warns of “more hazardous chemicals, like benzene which is sometimes used in fracking fluid, or radioactive material finding its way into groundwater.”¹²

In these northeast Ohio communities, citizens have demanded that their local governments address perceived risks to their health and quality of life. Environmentalists and citizens have also had referenda placed on ballots in several communities, some of which sought to ban fracking or the unsafe disposal of fracking waste.¹³

In 2015, however, the Ohio Supreme Court issued a broad 4-3 ruling that the state oil and gas law does not allow local regulation of oil and gas drilling operations. The court said that municipalities cannot require permits for activities that are already permitted by state law.¹⁴ The court struck down a Munroe Falls ordinance, citing a state regulation prohibiting local laws that “discriminate against, unfairly impede, or obstruct oil and gas activities.”¹⁵ This outcome disregarded a long history of broad local government authority under the Ohio Constitution.¹⁶

The author of the Ohio Supreme Court’s opinion, Justice Judith French, received tens of thousands of dollars in campaign contributions from fracking companies, electric utilities, and other fossil fuel interests when she was elected in 2014.¹⁷ The law firm that represented the fracking company challenging the Munroe Falls law also chipped in $7,695.¹⁸ In a statement to the Center for American Progress, Justice French said that her record would show that she decides “cases based on the law, not the parties.”¹⁹

The three justices who joined the ruling—Justices Sharon Kennedy and Terrence O’Donnell and Chief Justice Maureen O’Connor—also received more than $100,000 in total contributions from fossil fuel extraction companies and electric utilities in their most recent elections.²⁰ Justice O’Donnell has said, “The reality is that contributions follow the judicial philosophy of the candidate.”²¹ Chief Justice O’Connor has similarly denied that campaign contributions influenced her in any way.²² The Center for American Progress reached out to Justice Kennedy for a statement but did not receive a response. In fairness, one justice who dissented, Judith Lanzinger, also received tens of thousands of dollars in campaign contributions from the same industries, according to data from the National Institute on Money in State Politics.²³

In dissent, Justices Lanzinger and Paul Pfeifer, both Republicans, argued that the local permit requirement did not actually conflict with state law.²⁴ Another dissenter, Justice William O’Neill, criticized Ohio’s elected officials for pre-empting local laws regulating oil and gas:

Let’s be clear here … What the drilling industry has bought and paid for in campaign contributions it 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.²⁵

While there is no evidence proving that the campaign contributions influenced the Ohio Supreme Court, the appearance of bias can be just as damaging to the public’s perception of judicial independence as actual bias. As CAP stated in a previous report, “Scholars and others studying correlations between judicial rulings and campaign cash—or between rulings and elections—cannot read judges’ minds. … These kinds of correlations—whether they reflect causation or not—raise doubts about the impartiality of judges.”²⁶ This can certainly be true for the citizens in communities that have seen their local authority limited by judges elected with the help of corporate interests.

Phil Pegg, a township trustee in Vienna, said that Hopkinson and other citizens have asked the local government to address the problems associated with fracking wastewater injection wells.²⁷ “Part of my job is to protect residents here,” Pegg said. “I can’t protect my community because the rights of the township have been taken away.”²⁸

Through campaign contributions and support for pre-emption laws, oil and gas interests are undermining communities’ right to limit or regulate industrial activities. Many local governments have responded to quick booms in fracking or the injection of fracking waste by enacting stricter regulations, bans, or moratoria. This report discusses how fracking companies and state governments have challenged many of these local bans, as well as how state supreme courts have upheld some of them. Other local bans, however, have been struck down by courts elected with money from fracking companies and other fossil fuel interests.

Most state constitutions outline the boundaries of local authority, and some give state legislators broad authority to restrict local authority. As the final interpreters of these constitutions, state supreme courts are responsible for determining what happens when state and local laws conflict. And the vast majority of state judges must survive re-election to stay on the bench.²⁹

This report argues that, in a growing number of states, the courts settling these state-local disputes are seeing more campaign cash from oil and gas companies, lawyers, or other special interests. Nonpartisan supreme court elections in states such as Wisconsin and North Carolina have seen more and more campaign spending in recent years. The Ohio Supreme Court has long been among the most expensive elected courts in America, and many of its justices were elected with large campaign contributions from oil and gas interests. Courts are hearing pre-emption disputes in Louisiana and West Virginia—two states where mining and drilling interests have wielded strong influence.

State legislatures have also acted to limit or end local authority over fracking. The American Legislative Exchange Council, or ALEC—a group that is funded by big business and whose members include state legislators—has offered several model bills that would pre-empt local laws addressing pollution or other issues.³⁰ Wisconsin Gov. Scott Walker (R) has been criticized for signing pre-emption bills into law while touting the merits of the level of government “closest to the people.”³¹

Some reformers are arguing for an expansion of local authority to address pollution and other issues. The State Innovation Exchange, the progressive response to ALEC, has pushed for stronger protections for workers and others at the local level.³²

Over the past decade, oil and gas companies have ramped up drilling with hydraulic fracturing in several states. This activity is focused on a large formation in the Appalachian Basin, another in Texas and Oklahoma, and the Bakken formation around the Dakotas and Wyoming. Many communities have raised concerns about the effects of this drilling, with problems ranging from increased traffic to air and water pollution. Local bans on fracking have popped up along the Appalachian formation, from West Virginia to upstate New York.³³

Some states have responded by limiting the power of local governments to regulate oil and gas. These local fracking rules are testing the boundaries of local government authority. Most state constitutions give legislatures broad authority to pre-empt state law, but other constitutional provisions can limit this authority. Some constitutions have home rule provisions that give local governments broader authority.

The legal battles between state and local governments are occurring in state supreme courts around the country. Communities in Texas, Pennsylvania, New York, and elsewhere have passed stricter regulations or outright bans on fracking, according to FracTracker Alliance.³⁴ While these legal battles are occurring, the amount of money spent to elect the courts hearing the cases is increasing with every election. In Ohio, Louisiana, and other states, communities are going to court to assert their right to fight pollution at the local level, only to find that the judges deciding their case have been elected with money from fossil fuel companies.

In November 2015, Pennsylvania broke the record for the most expensive judicial race in history, as six candidates spent more than $15 million combined in a race for three seats.³⁵ Most of the campaign contributions came from labor unions, lawyers, and political action committees; only a fraction came from energy companies.³⁶ The Pennsylvania Supreme Court struck down a state law in 2013 that prohibited local regulation of fracking, citing a state constitutional right to clean air and water.³⁷

Communities in other states have not been as fortunate. The Colorado Supreme Court recently struck down local bans on fracking and disposal of fracking waste.³⁸ Legislatures in North Carolina and several Western states have recently passed state laws that explicitly pre-empt any local regulation of fracking.

A 2015 article in The New York Times wrote that pre-empting local laws is “becoming a standard part of the legislative playbook in many states where Republicans who control statehouses are looking to block or overturn the actions of leaders, and even voters, in municipalities that are often more liberal.”³⁹ According to The Great Suppression by reporter Zachary Roth, this trend “deliberately undermines the power of local governments to determine the direction of their own communities and rides roughshod over the principles of local control that conservatives have traditionally espoused.”⁴⁰

These new pre-emption bills have also prohibited local efforts to regulate housing, build municipal broadband systems, and increase the minimum wage. The Alabama, Wisconsin, and Oklahoma legislatures recently banned cities from requiring paid sick leave.⁴¹ The North Carolina legislature passed a bill in 2016 overriding local civil rights and minimum wage laws.⁴² In 2015, the Texas legislature considered more than 25 bills to pre-empt local authority.⁴³

Mark Pertschuk of Grassroots Change noted that an industry pushing a pre-emption bill often “finds it easier to wield influence in 50 capitols than in thousands of city halls.”⁴⁴ The American Legislative Exchange Council counts conservative state legislators as its members and offers model state laws that pre-empt local authority.⁴⁵

In many of the state supreme courts that are deciding pre-emption issues, energy companies and other special interests are spending more money with each election cycle. The Brennan Center for Justice recently reported that independent spending, which is legally not affiliated with candidates, reached a record high—more than $19 million—in judicial races during the 2015–2016 election cycle.⁴⁶ The Brennan Center reports that the vast majority of these independent groups accept some money from undisclosed donors. Ten states saw more than $1 million in spending.⁴⁷

Big money in elections—and no local fracking laws—in the home rule state

A century ago, Ohio became a pioneer in expanding the authority of local governments to regulate local affairs, such as land use.⁴⁸ According to the 2001 book Home Rule in America, one goal of those who drafted the state constitution’s home rule amendment in 1912 was to “liberate municipalities from the control of the state such that municipal … powers would prevail over state laws in local affairs.”⁴⁹ The book notes that local authority was so broad that Ohio was called “the Home Rule state,” but the ambiguous language of the amendment gave state courts “a significant role” in defining the scope of local authority.⁵⁰ The book concludes that holding onto the historically broad view of home rule is necessary to prevent “politics from once again favoring … private and state interests” over local needs.⁵¹

Such “private” interests might include the big business-funded groups that spend a lot of money in Ohio Supreme Court elections. These groups have succeeded in electing a majority of justices who regularly favor corporate litigants.⁵²

As mentioned earlier, Justice French both authored the recent fracking opinion and received large campaign contributions from the industry. She was elected with help from the same corporations that benefited from the court’s decision to limit local authority over fracking.⁵³

The dissenting judges argued that the local permit requirement did not actually conflict with state law. Justice Lanzinger, for instance, said that the state regulation merely declaring that local laws were pre-empted was not enough, as the two regulatory schemes could coexist.⁵⁴ She accepted the city’s argument that the local laws reflected traditional local concerns, such as land use, traffic control, and the welfare of the community.⁵⁵ Justice Lanzinger concluded, “There is no need for the state to act as the thousand-pound gorilla, gobbling up exclusive authority over the oil and gas industry, leaving not even a banana peel of home rule for municipalities.”⁵⁶

Furthermore, the remarks in Justice O’Neill’s dissent about the result being “bought and paid for in campaign contributions” raised questions about whether he was referring to legislators or his colleagues on the bench.⁵⁷ Ohio legislators have also received large contributions from fracking and other fossil fuel companies. Ohio Attorney General Mike DeWine, who supported the fracking companies’ challenge to the local ban, and Gov. John Kasich (R) have received big campaign contributions from oil and gas companies.⁵⁸

Of course, the court’s ruling may simply reflect the justices’ general pro-business slant. A recent CAP report showed that the Ohio Supreme Court rules much more often for corporate defendants and against individual plaintiffs. In cases since 2011 in which an individual sued a business, the court ruled in favor of the corporate defendants 79 percent of the time.⁵⁹

Justices Kennedy and O’Donnell voted for corporations in more than 90 percent of these cases, and Justice French did so in 84 percent of the cases.⁶⁰ In 2006, The New York Times found that Justice O’Donnell voted for his campaign contributors in more than 90 percent of cases.⁶¹ Justice O’Donnell, for his part, alleged that the newspaper cherry-picked cases and that its findings were misleading.⁶²

Chief Justice O’Connor and Justice Lanzinger voted for corporations around three-quarters of the time.⁶³ Justice Lanzinger said in 2008, “We never consult campaign reports before considering and deciding how to vote, for the identities of parties are irrelevant to the determination of the legal issues before us.”⁶⁴ Justices Pfeifer and O’Neill—who, unlike their colleagues, were elected without relying on large campaign contributions—voted in favor of injured plaintiffs in more than three-quarters of the cases.⁶⁵

Fossil fuel spends big on Louisiana Supreme Court justices

On June 17, 2016, the Louisiana Supreme Court declined to review a lower-court ruling against St. Tammany Parish’s attempt to stop a fracking project by amending its zoning laws.⁶⁶ The parish lost its legal fight, even though the state constitution confers broad authority to local governments. Home Rule in America states that Louisiana was “among the leaders” in broadening local authority; state constitutional amendments “adopted in 1974 were intended to end a period of de facto legislative supremacy over local government.”⁶⁷ A group advocating the St. Tammany ban said the court’s decision “sweeps aside long-standing constitutional principles for citizens and instead gives new, special privilege to certain companies.”⁶⁸

St. Tammany Parish also sued to try to stop fracking at a site 1.25 miles from a high school, and the lawsuit made its way to the Louisiana Supreme Court.⁶⁹ On the same day that briefs from the parties were due to the court, the company that operated the fracking well donated $2,000 to a justice’s campaign.⁷⁰ According to Fox 8 News in New Orleans, the donation was not disclosed in court, and the justices voted 4-3 to reject St. Tammany’s lawsuit.⁷¹

The parishes just upstream from St. Tammany—along the Mississippi River—were once nicknamed “Cancer Alley” because of the impact of toxic pollution from nearby oil refineries and other industrial plants.⁷² Two decades ago, the Tulane Environmental Law Clinic launched with a mission to address the pollution in Cancer Alley.⁷³ The clinic helped residents stop construction of a new plant because of environmental concerns.⁷⁴ The Environmental Protection Agency ruled in 1997 that the proposed factory failed to meet air pollution standards.⁷⁵

A 1999 “Frontline” report noted that the Louisiana chapter of the Chamber of Commerce, along with other business groups, then asked the Louisiana Supreme Court to change the rules governing law clinics.⁷⁶ Chief Justice Pascal Calogero was facing re-election and battling attack ads funded by some of these same business groups, which accused him of an anti-business voting record in cases that they considered important.⁷⁷ At the time, the U.S. Chamber of Commerce and its state affiliates were becoming big players in judicial elections, spending millions of dollars and endorsing candidates.⁷⁸

According to Bill Moyers of “Frontline,” the Louisiana Supreme Court changed the rule governing law clinics to require them to “prove that 75 percent of its members are indigent and provide evidence that they are living below the poverty line.” Moyers added, “The