by Ben Price, Projects DirectorCELDF
August 30th, 2011

On November 15, 2010, South Fayette Township in Allegheny County, Pennsylvania passed a zoning ordinance regulating the location of oil and gas extraction activities in the municipality. The ordinance was drafted by the Township and cleared by its Zoning Board in an attempt to protect from fracking as much of the community as possible through the land-use regulatory authority delegated to the Township by the State in the Municipalities Planning Code (MPC). What the Board of Commissioners adopted is an ordinance they cleared as to legality with their municipal Solicitor. They played it safe. They colored inside the lines.

One day later, on November 16, 2010, Pittsburgh City Council adopted a Local Bill of Rights Ordinance that bans corporations from extracting gas anywhere within the City. The Council Members decided not to surrender any part of the City to the frackers, arguing that all residents of the City have equal rights, and the Council Members had each sworn to protect the health, safety and welfare of all of the residents equally. Critics of the Ordinance said it is illegal and unconstitutional because it makes people’s rights trump corporate privileges recognized by the courts, and it challenges state laws that preempt local law-making and everybody knows state laws are superior to local ones. This community rights ordinance has the temerity to recognize the right to local self-government, the rights of natural communities and ecosystems, the right to water, and that corporate privileges are subordinate to the fundamental rights of members of the community.

You couldn’t ask for two more diametrically opposed views of what a local government should do when faced with a community-wide threat to health, safety and welfare.

Nine months later, on August 16, 2011, Range Resources, a Texas-based gas drilling corporation with an LLC in Canonsburg, PA, filed a legal challenge to overturn the South Fayette ordinance on the grounds that it violates the corporation’s constitutional rights, particularly its 5th amendment protections under the U.S. Bill of Rights. Along with seeking civil rights protections for the corporation, the complaint also argues that the corporation is protected from local regulation of corporate actions by the State Legislature’s Oil & Gas Act, and that even the State’s MPC doesn’t let municipalities zone so creatively as to make the rules about where the corporations can frack inconvenient for the beneficiaries of corporate profit.

Neither Range Resources nor any other fracking corporation filed a lawsuit against the City of Pittsburgh, nor against West Homestead, Wilkinsburg, Baldwin, or the other Pennsylvania communities that have adopted Local Bills of Rights and Fracking Bans. Nope, they didn’t sue Mountain Lake Park in Maryland, or the Town of Wales in New York, where Pittsburgh-style Rights-Based ordinances were adopted. Oh, they did sue Morgantown, West Virginia, which didn’t adopt a Local Bill of Rights Fracking Ban. Theirs is just a color-inside-the-lines generic ban that everybody said was legal under state law.

So what’s going on? The legal ordinances get challenged and the radical, illegal and unconstitutional Bill of Rights ordinances are left alone? What gives?

With a corporate challenge to its local law, you might think South Fayette finds itself in the middle of a battle over democratic local self-governance. But by avoiding the core question of who has rights in South Fayette Township (the people, or corporations?), and by  attempting to regulate the location of fracking in a way the State seems to say is legal, rather than banning it on the grounds that fracking is a violation of fundamental rights that belong to everyone, the municipality set up its residents for a fall nine months ago, and hundreds of other municipalities are following the same legal advice: to color inside the lines; work within the system; and don’t rock the boat.

As Mount Pleasant learned a few months ago when it adopted a conditional use zoning ordinance to regulate fracking and then got sued, as South Fayette Township is learning now, and as other municipalities are likely to learn when the dust settles in South Fayette and the Courts again side with corporations over people: the rules and state laws were meant to regulate local self-government, not corporations. The lawyers at Range Resources know this; the courts know this; the legislature in Harrisburg knows this. And a few communities that have adopted community rights ordinances know it too.  Our municipalities have been encouraged to play by the rules that strip their residents of fundamental rights.  Those rights are higher law than the Oil & Gas Act, the MPC and the corporate charters issued by the states in the name of the people to the corporations that presume to lord it over us now.

The fracking industry tried to infiltrate our homes by offering their Friendly Frackasaurus coloring books to our kids. They were sufficiently embarrassed by public ridicule to yank the self-parody of corporate cluelessness, but not enough to stop misinforming the adults with their TV ads and local scare tactics that say we can’t say NO to fracking.

It is time to color outside the lines drawn around our rights by the frackers and by their allies in public office. It is time to challenge the idea that the State can preempt human and civil rights on behalf of their benefactors in the privileged corporate class. Color us done with compromising our rights away by settling for zoning laws that regulate our communities and not the frackers. Color us done with surrendering our rights just to stay inside the lines, and then getting sued anyway. Democracy isn’t a paint-by-the-corporate-numbers kit. It’s a lost art that we need to regain.

Additional Resources