Pennsylvania court strikes down the provisions of Act 13 that gutted local land protections. In a 4-3 opinion, the PA Commonwealth Court sided with the people and local communities of Pennsylvania by striking down large portions of Act 13 – a law passed in February at Chesapeakes’s behest which severely restricted the ability of local communities to use their home rule powers to protect housing and water wells from shale gas industrialization.
The Pennsylvania Commonwealth Court issued a 4-3 decision striking down the heart of Act 13–the provisions that preempted municipal land use ordinances. http://www.pacourts.us/OpPosting/Cwealth/out/284MD12_7-26-12.pdf.
The Commonwealth Court voted 4-3 that 58 Pa Code Section 3304 and the provisions enforcing it violate substantive due process protections in the Pennsylvania and US Constitutions. The provisions restricted the authority of local governments to apply land use laws to gas wells. This is a major victory for municipalities. Here is the court’s ruling.
Home rule applies to gas wells in New York, in Pennsylvania, and the rest of the USA.
The Pa. bill was based on a model bill designed by the Kock Brothers to gut local zoning authority.
27 July 12
On July 26, the Pennsylvania Supreme Court ruled PA Act 13 unconstitutional. The bill would have stripped away local zoning laws, eliminated the legal concept of a Home Rule Charter, limited private property rights, and in the process, completely disempowered town, city, municipal and county governments, particularly when it comes to shale gas development.
The Court ruled that Act 13 “…violates substantive due process because it does not protect the interests of neighboring property owners from harm, alters the character of neighborhoods and makes irrational classifications – irrational because it requires municipalities to allow all zones, drilling operations and impoundments, gas compressor stations, storage and use of explosives in all zoning districts, and applies industrial criteria to restrictions on height of structures, screening and fencing, lighting and noise.”
“It’s absolutely crushing of local self-government,” Ben Price, project director for the Community Environmental Legal Defense Fund (CELDF), told Rosenfeld. “It’s a complete capitulation of the rights of the people and their right to self-government. They are handing it over to the industry to let them govern us. It is the corporate state. That is how we look at it.”
Where could the idea for such a bill come from in the first place? Rosenfeld pointed to the oil and gas industry in his piece.
That’s half of the answer. Pennsylvania is the epicenter of the ongoing fracking boom in the United States, and by and large, is a state seemingly bought off by the oil and gas industry.
The other half of the question left unanswered, though, is who do oil and gas industry lobbyists feed anti-democratic, state-level legislation to?
The answer, in a word: ALEC.
PA Act 13, Originally an ALEC Model Bill
The American Legislative Exchange Council (ALEC) is in the midst of hosting its 39th Annual Meeting this week in Salt Lake City, Utah. ALEC is appropriately described as an ideologically conservative, Republican Party-centric “corporate bill mill” by the Center for Media and Democracy, the overseer of the ALEC Exposed project. 98 percent of ALEC’s funding comes from corporations, according to CMD**.
ALEC’s meetings bring together corporate lobbyists and state legislators to schmooze, and then vote on what it calls “model bills.” Lobbyists have a “voice and a vote in shaping policy,” CMD explains. They have de facto veto power over whether their prospective bills become “models” that will be distributed to the offices of politicians in statehouses nationwide.
A close examination suggests that an ALEC model bill is quite similar to the recently overturned Act 13.
It is likely modeled after and inspired by an ALEC bill titled, “An Act Granting the Authority of Rural Counties to Transition to Decentralized Land Use Regulation.” This Act was passed by ALEC’s Energy, Environment, and Agriculture Task Force at its Annual Meeting in August 2010 in San Diego, CA.
The model bill opens by saying that “…the planning and zoning authority granted to rural counties may encourage land use regulation which is overly centralized, intrusive and politicized.” The model bill‘s central purpose is to “grant rural counties the legal authority to abandon their planning and zoning authority in order to transition to decentralized land use regulation…”
The key legal substance of the bill reads, “The local law shall require the county to repeal or modify any land use restriction stemming from the county’s exercise of its planning or zoning authority, which prohibits or conditionally restricts the peaceful or highest and best uses of private property…”
In short, like Act 13, this ALEC model bill turns local democractic protections on their head. Act 13, to be fair, is a far meatier bill, running 174 pages in length. What likely happened: Pennsylvania legislators and the oil and gas industry lobbyists they serve took the key concepts found in ALEC’s bill, ran with them, and made an even more extreme and specific piece of legislation to strip away Pennsylvania citizens’ rights.
There were many shale gas industry lobbyists and those affiliated with like-minded think-tanks in the house for the Dec. 2010 San Diego Energy, Environment, and Agriculture Task Force Meeting where this prospective ALEC model bill became an official ALEC model bill. They included Daren Bakst of the John Locke Foundation (heavily funded by the Kochs), Russel Harding of the Mackinac Center for Public Policy (also heavily funded by the Koch Family Fortune), Kathleen Hartnett White of the Texas Public Policy Foundation (again, heavily funded by the Kochs), Mike McGraw of Occidental Petroleum, and Todd Myers of the Washington Policy Center (a think tank that sits under the umbrella of the Koch Foundation-funded State Policy Network).
Pa. Oil and gas law’s zoning portion ruled unconstitutionalEllen M. Gilmer, E&E reporter
Published: Friday, July 27, 2012
Pennsylvania’s landmark oil and gas law suffered a blow yesterday as judges struck down a key section that limited local governments’ ability to regulate industry activity.
A meaty section of the five-month-old Act 13 prohibited any local restrictions that would disrupt the “reasonable development of oil and gas resources” in the state. This would trump established zoning plans that separate residential, commercial and industrial activity and would force towns to allow gas-related operations in every zone.
Seven municipalities, along with environmentalists, township officials and a doctor, filed suit against the state in March, claiming the law was an encroachment on the rights of local governments. Pennsylvania Commonwealth Court yesterday decided in their favor, ruling that the zoning section was unconstitutional and immediately void.
The section, titled “Uniformity of local ordinances,” requires towns to violate their own zoning plans by not protecting the interests of property owners, wrote Judge Dan Pellegrini in the majority opinion. Three other judges joined him in the opinion, and three dissented.
“If the Commonwealth-proffered reasons are sufficient, then the Legislature could make similar findings requiring coal portals, tipples, washing plants, limestone and coal strip mines, steel mills, industrial chicken farms, rendering plants and fireworks plants in residential zones for a variety of police power reasons advancing those interests in their development,” Pellegrini wrote. “It would allow the proverbial ‘pig in the parlor instead of the barnyard.'”
The decision prompted dismay from state officials, who will likely appeal to the state Supreme Court. A motion to appeal must be filed within 30 days of the ruling.
“Act 13 is clearly constitutional and received significant input and ultimate support from Pennsylvania’s local government associations and their legal counsel,” said Eric Shirk, spokesman for Gov. Tom Corbett (R), in an email to EnergyWire. “We will vigorously defend this law, which better protects the environment, provides revenue to local communities and regulatory certainty to both landowners and job creators.”
The voided section also stipulated that municipalities could not restrict the gas industry any more than they would other industrial or construction activity, and local governments would also have to allow unlimited operation hours for wells, truck traffic and related facilities. Critics called the provisions an overstep.
“The Court has recognized that the Pennsylvania legislature and Governor Corbett went too far,” said Jordan Yeager, attorney for plaintiffs Delaware Riverkeeper Network, Nockamixon Township and Yardley Borough, in a statement. “This is a great victory for the people of Pennsylvania, for local democracy, for property rights, for our public health, and for the clean water supplies on which we all depend.”
Backers of the law maintain that Pennsylvania needs standard regulatory conditions across township and county lines in order to attract the revenue-generating gas industry, which has swept through the state in recent years to drill in the high-yielding Marcellus Shale. Most operators use hydraulic fracturing and horizontal drilling — techniques whose rapid uptick nationwide has been a cause for concern among skeptics who say safety practices and regulations are not keeping pace. But industry cautions that rules should not be so varied and burdensome that they discourage development.
“Lack of uniformity has long been an Achilles’ heel for Pennsylvania and must be resolved if the Commonwealth is to remain a leader in responsible American natural gas development and reap the associated economic, environmental and national security benefits,” said Marcellus Shale Coalition President Kathryn Klaber in a statement.
Critics have countered that gas companies and other Act 13 backers should have worked collaboratively with towns to create more palatable legislation.
Industry representatives point out that most Marcellus Shale municipalities wasted no time accepting Act 13’s impact fee — a charge on drillers that trickles into local coffers. Marcellus Shale Coalition spokesman Travis Windle sees that as an endorsement for the broader bill.
But Tracy Carluccio, deputy director of the Delaware Riverkeeper Network, a party to the legal challenge, argued that local governments’ acceptance of the impact fee was merely “self-preservation to keep up with the cost” of increased drilling activity that weighs heavily on roads and other infrastructure.
The local governments involved in the case were Robinson, Cecil, Mount Pleasant and Peters townships in Washington County; South Fayette Township in Allegheny County; and Nockamixon Township and the Borough of Yardley in Bucks County. Sixty-seven local governments passed resolutions or sent letters in support of the plaintiffs (EnergyWire, July 24).
The Pennsylvania State Association of Township Supervisors raised questions during debate over Act 13 but never opposed it.Setback waivers thrown outThe Commonwealth Court also voided another section of the law that allowed the state Department of Environmental Protection to grant waivers for environmental safeguards related to well location. The language allowed drillers to forgo listed setback distances so long as DEP approved a company plan for water protection.
Environmentalists were outraged over the waiver clause, calling it a loophole that would allow companies to drill wells right next to wetlands, streams and public water sources.
“The enhanced environmental protections were largely ephemeral because they could be waived at any time by the Department of Environmental Protection,” said George Jugovic Jr., president of the citizens group PennFuture, which has been critical of Act 13 since its passage in February. “And so [the ruling] was an important victory.”
The court ruled that the setback waiver was unconstitutional because it gives the state agency discretion over policy reserved for legislators.
The judges did not tackle the issue of chemical disclosure raised in the lawsuit. Mehernosh Khan, a physician in gas-rich Allegheny County, was party to the challenge on the grounds that Act 13 restricts health workers’ ability to obtain and share relevant medical information regarding chemicals by allowing companies to keep trade secrets.
Khan argued that medical issues related to gas drilling were likely in his area, and he would be unable to effectively diagnose patients without being able to consult with others about the chemicals used in hydraulic fracturing. The court ruled that Khan did not have standing in the lawsuit because his grievances were only hypothetical.
Jugovic said if the ruling stands on appeal, his organization will continue to advocate for chemical disclosure reform.
Court throws out state zoning for Marcellus Shale drilling
July 26, 2012 10:47 amBy Laura Olson / Pittsburgh Post-GazetteHARRISBURG — A Commonwealth court panel this morning threw out Pennsylvania’s attempt to establish statewide zoning for Marcellus Shale drilling.The court ruled that the state cannot take away zoning control away from local municipalities as it tried to do when the Legislature passed Act 13 in February.That law, signed by Gov. Tom Corbett in February, enacted a sweeping set of changes for how the oil and gas drilling industry operates within Pennsylvania, including creating an impact fee and, most controversially, dictating what municipalities can and cannot include in their zoning standards for gas drilling.A lawsuit was filed in March, challenging the zoning provision primarily, arguing that the new law prevented local officials from protecting the health and safety of their residents.An order attached to this morning’s filing declares the zoning provision null and void. A separate provision that allows state environmental officials to waive setback requirements for gas wells also is overturned.The majority opinion states that requiring municipalities to change their zoning rules in a way that would conflict with their development plans “violates substantive due process because it does not protect the interests of neighboring property owners from harm, alters the character of neighborhoods and makes irrational classifications — irrational because it requires municipalities to allow all zones, drilling operations and impoundments, gas compressor stations, storage and use of explosives in all zoning districts, and applies industrial criteria to restrictions on height of structures, screening and fencing, lighting and noise.”“If a municipality cannot constitutionally include allowing oil and gas operations, it is no more constitutional just because the Commonwealth requires that it be done,” the opinion states.A dissent was released from three members of the court panel — Judges Kevin Brobson, Robert Simpson and Anne Covey — arguing that the municipalities challenging the law failed to make their constitutional claim.The ruling comes a little more than three months after another state appellate judge granted a 120-day injunction to prevent the zoning section of the law from going into effect in mid-April.Seven municipalities — including the southwestern towns of Cecil, Peters, South Fayette, Mount Pleasant and Robinson, plus two towns in Bucks County — filed the lawsuit, along with a Monroeville doctor and environmental activists from the Delaware Riverkeeper Network.
Canonsburg attorney John Smith, one of several attorneys representing the municipalities in the lawsuit, argued during a June en banc hearing that allowing drilling activities in areas the state proscribed would make it difficult for local governments to protect their residents and that the statute allows the drilling industry privileges in permitting and land use that others do not have.