PA Legislature Preempts Communities on Fracking

CELDF Statement on the Legislature’s Passage of
Marcellus Shale Legislation (Act 13 of 2012)

(click here for pdf )

March 2012

The Pennsylvania Legislature recently adopted Act 13 of 2012 (House Bill 1950) to accelerate the extraction of natural gas from the Marcellus Shale deposit underlying much of Pennsylvania. 

Act 13 is but one of many efforts by the State to preempt people and their communities from making critical decisions for themselves – including decisions on fracking – and it’s why communities across Pennsylvania are now joining forces to fundamentally change how, and perhaps more importantly, for whom, our structures of law and government work.  

The legislature’s latest action to aid the gas corporations should come as no surprise.  It’s part of a pattern that’s emerged over the years in which the legislature and State government work hand in hand to place the interests of corporations over and above our communities. 

We shouldn’t be surprised either that the new bill uses state preemptive powers to strip people – and their local governments – of the authority to ban or regulate natural gas extraction.  Or further, that it empowers the state Public Utilities Commission (PUC) to override local ordinances that run counter to state laws that facilitate gas extraction.

Act 13 also creates so-called “impact fees” – a cynical attempt to equate the health, safety, and welfare of our communities with the resurfacing of roads.

Act 13 punctuates the State’s priority to remove as much power as possible from those who are most impacted by gas extraction.

Prior to its passage, the State had already all but eviscerated local control – allowing municipalities to use their zoning powers only to regulate the placement of surface well pads.  Given that horizontal gas drilling enables corporations to reach gas deposits under protected zones in the municipality, describing well-pad zoning as a form of “local control” was a bad joke.  Even “legal” zoning measures didn’t stop gas corporations from suing municipalities – such as South Fayette and Cecil Townships  – when the corporations felt that even minimal zoning restrictions would interfere with their bottom line.

This is nothing new.  Time and again, the State government has stepped in to prevent our municipalities from protecting the health, safety, and welfare of their residents in the face of unrelenting corporate assaults.  In the past decade alone, the State has eliminated local control over corporate water withdrawals, corporate use of genetically modified seeds, corporate factory farms, and corporate dumping of sewage sludge on our farmland.

Granting power to a state agency – in this case, the PUC – to overrule local ordinances isn’t new either.  When Pennsylvania municipalities began enacting local bans to stop corporate factory farms and corporate sludging of farmland, the State legislature stepped in on behalf of the agribusiness industry – much as it has now stepped in on behalf of the gas industry.

Then as now, the legislature empowered a state agency to override local decision making by communities – decision making aimed at protecting the community’s health, safety, and welfare. 

That legislation – Act 38, better known as “ACRE” – was adopted in 2005.  ACRE empowers the State Attorney General to represent agribusiness corporations against municipalities that dare enact local laws challenging corporate farming.

The Attorney General has already sued nearly a dozen municipalities under ACRE, including rural Packer Township in Carbon County.  In that case, the Attorney General is defending the “right” of corporations to override the community’s right to protect itself from sewage sludge being dumped on its farmland.  The bitter irony – and the proof that Pennsylvania’s government has been further privatized – is that the Attorney General, an elected official, is turning around and suing the very folks who elected him, on behalf of corporations.

The Community Environmental Legal Defense Fund’s work, in stark contrast to other environmental groups across the State, has been to assume that State government will respond in this manner.  Thus, our organizing has focused on assisting communities to build a framework of local law that shields that exercise of local control from the State.  In short, our organizing assumes that the State will act to override local control when that local control threatens the interests of corporations.

Over the past several years, we’ve assisted the City of Pittsburgh and other municipalities across Pennsylvania to adopt local ordinances that create a “bill of rights” for those communities.  Further, the ordinances ban State-permitted harms – including gas drilling – that violate those local bills of rights.

These ordinances advance a realization that is new to many people – that communities cannot ban activities that are harmful to us so long as we accept the State’s authority to strip us of community self-government.  Thus, these bans have to be more than bans – they have to refuse to follow State law – because following State law automatically means that we lose control of the very future of our townships and boroughs, and consign them to environmental and community destruction.

For the community-rights ordinances, the passage of Act 13 doesn’t change a thing.  The ordinances have always stood as a frontal challenge to the authority of the State to override local control, and they continue to do so under any new legal framework that the State chooses to construct.

Over 100 Pennsylvania municipalities have already adopted these laws.  They confront  everything from factory farms to fracking.

The inevitable result of these local refusals to follow illegitimate State law is the binding together of hundreds of municipalities to force constitutional change that overrides the authority of the State to gut community self-government.  That means driving a right to local self-government into the Pennsylvania Constitution which enables our communities to begin to actually protect our health, safety, and welfare, rather than continuing to be at the mercy of gas and other corporations who solely seek to use our communities for resource extraction.

Only when we wake up to the fact that this struggle isn’t about fracking or factory farming or sewage sludging – and realize that it’s about democracy and community self-government – will we awaken from this very bad dream.  And, only when we realize that our only option is to override the State legislature, organizing from the ground up, will we stop negotiating with gas and other corporations about how much of our community we will sacrifice.

If your community hasn’t already adopted a local “bill of rights” that bans gas drilling, do it tomorrow.  Without a critical mass of communities in Pennsylvania joining together, constitutional change that liberates our communities to determine their own futures will remain beyond our reach.  And we will saddle our children with cleaning up the mess – and whatever is left of our communities and environment – that happened on our watch.

To learn more, contact the Community Environmental Legal Defense Fund at info@celdf.org.