Posted by Emelyn Lybarger on August 22nd, 2012

Why the Recent Act 13 Decision Won’t Help to Stop Fracking
How Environmental Groups Keep Leading Communities into Dead-Ends


Submitted by:
Community Environmental Legal Defense Fund
P.O. Box 360
Mercersburg, Pennsylvania 17236

Recently, the Commonwealth Court of Pennsylvania struck down key parts of Act 13, the now-infamous Pennsylvania state law that sought to nullify municipal zoning restrictions on natural gas extraction and gas “fracking” across the State.

Newspaper headlines comfortingly trumpeted that local control had been restored. A lawyer for the municipalities that brought the original challenge even proclaimed that the ruling “reaffirmed that gas company profits do not trump the constitutional rights of Pennsylvania residents and property owners.” Environmental groups crooned that the ruling protected communities and the environment.

But as Paul Harvey was fond of saying, “and now for the rest of the story.”

While the Commonwealth Court did rule to limit the reach of Act 13, the decision was not based on the right of communities to stop fracking. Instead, the Court ruled that the State couldn’t use the Act to force gas extraction operations onto land not locally zoned for it, because such coercion would interfere with the rights of neighboring property owners. It was thus a property rights decision, not a community rights one.

While some might argue that that’s a distinction without a difference, they would be wrong. Instead of validating the right of community residents to control harmful activities within their borders, the Court treated the dispute as merely one between two sets of property owners – the corporate owners of the minerals to be extracted, and landowners adjacent to that extraction.

The municipality itself – ostensibly the representative of the people in the community – failed to even register on the Court’s scorecard.

Leaving that aside for the moment, left unsaid in this debate is that zoning for gas extraction isn’t worth the paper it’s written on. Municipal zoning power controls surface use, which means that while a municipality can zone drilling pads into suitable areas, it cannot control what happens under the ground through zoning ordinances. Because fracking operations are drilled horizontally, up to two miles in length from the original vertical drillbore, using even the most restrictive zoning controls still guarantees that the community will be fracked. Thus, the only real thing that zoning provides is a false sense of security that sensitive areas are immune from being fracked.

Regardless, kudos should be given to the municipalities who filed the lawsuit in the first place – after all, Pennsylvania municipalities – unlike in other states – have been almost completely silent as the Pennsylvania legislature has systematically dismantled local control over the past thirty years. And the governmental associations ostensibly representing municipal interests in the legislature – like the Boroughs Association and the State Association of Township Supervisors – have been more interested in not rocking the boat than in confronting a legislature out of control.

And completely out of control the State has been. As a result of three decades’ worth of stripping away local control in favor of State preemptive power, communities are now banned from saying “no” to corporate factory farms, large-scale water withdrawals, dumping of sewage sludge, genetically modified seeds, commercial timbering, and a slew of other harmful corporate projects.

Not surprisingly, when community control conflicts with corporate interests, corporate lobbyists routinely take charge in Harrisburg and help write preemptive laws that  move communities out of the way.

The recent ruling by the Commonwealth Court returns our municipal communities to where they were before Act 13 was adopted. They are to maintain their status as well-worn “creatures” of the State – to be controlled like puppets on a string at the whim of the legislature. But is it a victory for them to return to a time when zoning merely allows them to decide which parts of the municipality to surrender to the frackers? Let’s get real.

If the deck is stacked, you don’t ask for a new hand. You demand a new deck, and if you don’t get one, you leave the table.

Over one hundred municipal governments across Pennsylvania – including the City of Pittsburgh – have begun to do just that. Whether faced with corporate plans for factory farms, sewage sludge dumping, or fracking, those communities have begun to say “no” – not just to those projects, but to the very structure of law that has granted more governing power to corporate decisionmakers than to us.

They are rejecting a structure of law that recognizes the right of corporations to use our legislature to tell us what laws we can pass and when; that recognizes corporations as having the same constitutional “rights” as we do; and which treats our municipal governments as merely administrators of state policies. They are rejecting a legal system that has enslaved our community majorities to corporate minorities; and has transformed our legislature into a handmaiden of those interests.

They understand that structural change only occurs when people and communities stop obeying the laws that unjustly bind them. In doing so, they’ve joined communities in nine other states who have arrived at a common conclusion – that our 1800’s structure of law is all about elevating the rights of property and commerce over community and nature. They have begun to recognize that such a system has made true environmental and economic sustainability impossible, and even, in many cases, illegal.

Those communities are way out in front of the big environmental groups who should be the ones talking about sustainability and local control. Unfortunately, those groups still believe in the regulatory fallacy that says we’re allowed to slow down accelerating environmental destruction, but we are forbidden to stop it. They continue to spend their time and dollars trying to trick the existing system into protecting communities and nature, rather than helping to create a new system.

Their efforts are akin to being an activist in the 1840’s, attempting to regulate the number of daily lashes a slave master could inflict on a slave, while refusing to challenge slavery as a whole. The Abolitionists, after all, didn’t create a Slavery Protection Agency – they worked instead towards a new system of law in which people couldn’t be treated as property.

We need a similar movement – one focused on structural constitutional change which recognizes our right to govern our own communities. It’s happening already across Pennsylvania – with townships and boroughs writing their own local ordinances that read like constitutions. It’s time to stand up, and like our 1776 predecessors, build a new system of government that actually benefits us. It’s not too late.


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