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CELDF Press Release: “Let the People Decide!” - Pittsburgh City Council Votes to place Community Bill of Rights and Ban on Gas Extraction on the Ballot in November

by CELDF
August 2nd, 2011

“The Solicitor even goes so far as to say that property owner rights to enjoy their property would fall on the side of drilling rather than banning drilling, and that they might sue. The fear of such suits should not deter us from letting the citizens of Pittsburgh vote on this legislation. The fear of death or degrading of our life, health, and property is much more important.  This one is for the children.  It’s their future, and we have to get it right.”  --- Pittsburgh City Council President Darlene Harris

MEDIA RELEASE
August 1, 2011
CONTACT: Ben Price, (717) 254-3233
benprice@celdf.org

FOR IMMEDIATE RELEASE

(Tuesday, August 2, 2011) On Monday, August 1st, Pittsburgh City Council, by a vote of 6-3, approved the placing of a referendum question on the November ballot that will allow City residents to amend the Pittsburgh Home Rule Charter. The proposed amendment includes a Community Bill of Rights, and a ban on extraction of “natural” gas within the City to protect those rights. Council members voting in favor of the measure were Burgess, Harris, Kraus, Peduto, Rudiak and Shields. Voting against the measure were Dowd, Kail-Smith and Lavelle.

Councilman Burgess, who had abstained from voting the measure out of Committee on July 27th, indicated that no matter what reservations he may have about the amendment, voting his conscience and principles meant that Council should leave it to the People to decide. His vote created a veto-proof majority for the measure, which is significant since the mayor has indicated he may chose to use his veto power to strike the ballot question.  However, the Mayor has ten days in which to sign, veto, or let slide any legislation.  If he waits the full ten days, it will be past the date when the Division of Elections must have the referendum to put it on the ballot.  Council President Darlene Harris has requested in a letter to him that the Mayor act early.  There is no guarantee that he will do so.  If he decides not to act, the measure might not appear on this coming election’s ballot.

Pittsburgh is a “home rule” city.  This means it creates its own laws on any topic not exclusively regulated by the state or federal government.  The set of local laws that govern the City are collectively referred to as the City’s Charter.  The Charter may be amended either by action of the elected government officials or through a citizen petition.  This ballot question will be presented to City voters on November 8th as the result of the adoption of the ordinance by City Council.  The amendment proposes an addition to the Home Rule Charter establishing a Community Bill of Rights, which asserts the right of residents of the City to local self-government, to water, and the right of residents to establish energy policies for future sustainability. It establishes rights for natural communities and ecosystems, and empowers community members with legal standing to enforce those rights.

To secure the Community Bill of Rights, corporations would be prohibited from extracting natural gas within the City, with the exception of gas wells already established and in operation at the time of adoption of this amendment. In addition, corporations engaged in the extraction of natural gas, or intending to do so in the City, would no longer be legally viewed as “persons” and could not avail themselves of protection of the state or federal constitutions in a way that would nullify the rights of human and natural communities recognized in those constitutions and by this Charter amendment.

The Council’s vote in favor of presenting the Charter Amendment is particularly significant, since prior to the vote Council members received a memo from the city’s Law Department  titled  “Re: Council Bill No. 2011-1939 Ordinance to place before voters referendum question whether to amend Home Rule Charter of the City of Pittsburgh,” which responded to this question from Council:

“Does the legislation conflict with Federal, State and/or Local law?”

Solicitor Daniel Regan responded in part:

“The Law department believes the proposed ordinance may violate 53 Pa.C.S.A. §2962(f) (Home Rule Charter and Option Plans Law) due to the City being preempted from placing duties, responsibilities and requirements on businesses beyond what has been placed on them by the Commonwealth of Pennsylvania.

"The Law Department believes the proposed ordinance is preempted by the Pennsylvania Oil and Gas Act (58 Pa.C.S. §601.101 et. seq). Said belief is supported by the PA Supreme Court case law: Huntley & Huntley, Inc. v. Borough of Oakmont, 964 A.2d 855 (Pa. 2009) and Range Resources v. Salem Township, 964 A.2d 869 (Pa. 2009).

The Law Department has also identified various Constitutional issues which it has not had adequate time to fully analyze at this time. Potential areas of concern relate to the Commerce Clause, Contracts Clause, Substantive & Procedural Due Process and takings of property without adequate compensation.”

Solicitor Regan concluded that “In light of the above, it is the recommendation of the Law Department that no further action be taken on the legislation until we are able to complete our analysis”.

Prior to comments from Council regarding the pending vote, Council President Darlene Harris addressed the Council, saying, “On the Marcellus Shale, bill 1939, we all received a memorandum this morning from the law department and the solicitor’s opinion concerning that bill.  With all due respect, he brings in state packaging laws that say that cities can’t enact laws about safety and health; he tries to apply them to natural resources.”

She went on to say that [Solicitor Regan] “says that the Oil & Gas Act regulates gas extraction, so anything it says would supersede any law passed by a municipality.  The state regulates it, so the cities have no opinion.  But the state also regulates liquor sales, and still Bellevue chooses not to have liquor sales.  They voted that on a referendum last election.”

Mrs. Harris continued: “Mr. Regan quotes the Oil & Gas Act as being very permissive, in that drilling can happen wherever the companies wish, as long as they get the permits, and comply with zoning laws.  In my own opinion,” she continued, “it’s that if the City can regulate other quality-of-life issues, such as noise and light and billboards, and traffic safety and safe sidewalks and homes, then the citizens should have some say over our health and welfare in this matter.”

“The Solicitor" she reminded the Council, “states that the City might be subject to a Constitutional claim.  He feels that the citizens or corporations will sue for a violation of their rights. The Solicitor brings in potential violations of Due Process under Section 1983 of the Federal Code.  He says that those who hold mineral rights are being denied life, liberty, or property without due process of law.  But the reverse argument is that if we permit drilling, then all of the neighbors of that person are being denied life, liberty, or property. The reverse argument is much stronger.”

 Mrs. Harris went on to say that “the Solicitor even goes so far as to say that property owner rights to enjoy their property would fall on the side of drilling rather than banning drilling, and that they might sue. The fear of such suits should not deter us from letting the citizens of Pittsburgh vote on this legislation. The fear of death or degrading of our life, health, and property is much more important.  This one is for the children.  It’s their future, and we have to get it right.”

Councilman Doug Shields, who introduced the measure on July 27th, commented that adding the ordinance language as part of the Charter would strengthen the ordinance and make it harder to overturn, because in the eyes of the court, the Home Rule Charter is the City’s constitution. Just as a constitutional amendment is much stronger than a statute passed by Congress, this proposed amendment will strengthen the voice of the people by putting it directly into the Charter.

He also commented that the proposed amendment could not be repealed by a future City Council. Any future attempt to remove the ban would have to be approved by the voters of the City of Pittsburgh.

Unlike the ordinance, the Charter Amendment wouldn’t rest solely on City Council’s preferences and choices, and the Council could treat the charter amendment as the mandate of the people of the City of Pittsburgh, thus making it less politically sensitive to administer.

When asked why he thought it wise to bring the matter to the voters, Councilman answered that “On matters of such importance how can you not go to the people for their advice and consent?  That s something the Commonwealth of Pennsylvania  forgot to do.  I encourage concerned people to call Mayor Luke Ravenstahl  (412 255 2626) and let him know you'd like to cast a vote on the subject.   When corporate special interests outweigh people’s rights, well, then where do we go from here? Throughout history, democracy has served us well.  I hope we continue to embrace that concept and let people govern themselves."

The question of whether or not the Charter Amendment becomes part of the City’s local constitution is now up to the people of Pittsburgh. On November 8th, they will be asked to vote YES or NO to this question:

"Should the Pittsburgh Home Rule Charter be amended to add Section 104 “The City of Pittsburgh Bill of Rights”, which enumerates the right to water, the rights of natural communities, the right to a sustainable energy future, and the right to self-government, and which secures those rights by banning corporate gas extraction within the City and subordinating corporate rights to the rights of Pittsburgh residents?”

A majority vote in the affirmative will mean that Pittsburgh makes history by taking a stand for Community Rights over corporate privilege, once again.