How a Pennsylvania Law Has Elevated the Fracking Battle to a Civil Rights Fight

By Steven Rosenfeld, AlterNet

16 March 12

ut in Pennsylvania, the epicenter of the controversial drilling, the legislature recently stripped all local zoning authority to prevent drilling, overturning the kinds of steps that have frustrated drillers in neighboring states. As a result, a different and riskier strategy is emerging in the battle to keep drilling at bay: local ordinances and organizing elevating the civil rights of communities and nature while limiting the legal rights of corporations.

"What we are doing with our ordinances is challenging the authority of state government to license the corporations to violate rights," said Ben Price, Community Environmental Legal Defense Fund (CELDF) project director. "The courts have never seen that argument before. There has not been a civil rights argument against industrial trumping of local authority, or against the state using licensing statutes to trump local self-governing authority to protect health, safety and welfare."

In Pittsburgh and surrounding suburbs, State College and handful of small towns in New York and Maryland, municipal governments have explicitly asserted their right to a clean environment, to safeguard natural resources, and have stated the civil rights of people are superior to the economic rights of corporations - even if state legislatures or regulatory agencies supervise those industries, such as gas producers.

In Pennsylvania, these local ordinances are among a handful of legal and political lines of defense being drawn against a new state law that has granted extraordinary powers to gas companies and to state regulators. They are part of a strategy to recast this struggle as one that is not just about whether fracking can occur, but rather as a civil rights battle where the key issue is can a community govern itself, its natural resources, and its future.

"It's not a gas extraction problem," said CELDF's Price. "It's a rights denial problem."

The Power of Money

The 500-mile long Marcellus Shale and two other shale deposits in Pennsylvania, West Virginia, western New York and eastern Ohio, are a Saudi Arabia-sized resource, the U.S. Geological Survey has said. According to the gas industry, the deposits are worth billions and could not only meet one-quarter of the nation's natural gas needs by 2020, but also generate jobs and lift impoverished local economies. Even though some financial experts have questioned those projections, Pennsylvania's Republican-led government has embraced gas drilling as if it were a modern gold rush.

However, getting to the gas is not a simple process. The industry uses a technique called hydraulic fracturing, or fracking, in which large volumes of water with toxic chemicals is injected under great pressure into wells and lateral bores to crack the rock and free the gas. The industry has not disclosed what chemicals it uses and claims fracking is safe. But in numerous communities across the country people have seen drinking water polluted, reported earthquake-like tremors and even seen gas escape in their home plumbing.

Last month in Pennsylvania, Republican Gov. Tom Corbett and GOP majorities in both legislative chambers brushed aside skeptics and community activists to adopt what might be the most anti-democratic, anti-environmental, pro-fracking new law in the nation. Act 13 comprehensively rewrote the state's oil and gas laws for the first time since 1984, giving unprecedented power to the gas industry, smothering local political obstacles and streamlining statewide procedures to license and operate the wells.

Fracking opponents saw the pro-drilling reforms coming, but nonetheless were stunned by how much the legislature and governor gave away to one industry.

To start, Act 13 stripped local municipalities of zoning authority to block wells and any related operation - pads, pipelines and processing plants. It imposed a new tax on wells - but only shares those revenues with towns that delete anti-drilling provisions from local zoning codes. It empowers the state's Public Utilities Commission to invalidate zoning codes that might block drilling, and tells the PUC it must act on behalf of "aggrieved" landowners or gas companies. Similarly, Act 13 gives gas companies eminent domain power to take property for drilling operations. And it imposes confidentiality rules for physicians and health professionals who might treat anyone suffering from a drilling-related illness, and says those medical files are not public records.

Act 13 did not pass without opponents - including town officials who not only heard from concerned and well-informed residents at their meetings but also did not want to lose their zoning authority. While the state's Republican political leaders ignored their complaints and pushed it through the legislature, that hubris has enlarged the anti-fracking opposition and added a significant new player: some local governments.

"There are places for them to go," said Steve Karas, Forest Hills Borough Council vice-president, who said some towns welcome the wells - though not his Pittsburgh suburb. "The idea of using a bill to do a statewide 'we will come and do this' whether you changed your zoning ordinance or passed a moratorium. Boy, it's not like if they just went to where people wanted them they couldn't do just fine from a monetarily perspective. They went for the whole deal."

"It is the corporate state," said CELDF's Price, whose group helped Forest Hills craft its community rights ordinance. "We have no representation at the state or federal level. That's why we go to the locals to work. Because the only way we can illustrate what people want is to put that into law and have that challenged."

Fighting Back

The ordinances are one component in an emerging response to Act 13, said Doug Shields, former Pittsburgh City Council president who helped shepherd that city's community rights ordinance - the state's first - in 2010.

There is much in Act 13 that should be challenged in court and declared unconstitutional under many established areas of law, Shields said. But the ordinances create a new legal area that has not yet come before Pennsylvania courts, he said, because they confer civil rights under the Pennsylvania constitution and prior state Supreme Court rulings. Legally speaking, that is different from the dozens of symbolic Town Meeting resolutions passed in nearby Vermont decrying corporate personhood and urging the Congress to propose a federal constitutional amendment to redress controversial U.S. Supreme Court campaign finance decisions. It is also different from the successful strategies used in New York, where lower courts have upheld local zoning ordinances to stop fracking - and the state legislature issued a moratorium to study the issue.

The question in Pennsylvania is not whether there will be litigation to challenge the constitutionality of numerous Act 13 provisions, but which provisions will first be targeted and when will the local community rights ordinances join the legal fight.

"I would expect within the next 20 to 40 days, you will probably see lawsuits filed by municipalities challenging provisions," Shields said, saying that Act 13 has many parts that appear unconstitutional under established areas of law.

"For instance, how is it that a legislative body - be it a Congress, a statehouse, or local town council - is subject to an appointed commission? Constitutionally, that makes no sense at all," he said. "It's the executive, the judiciary and the legislative branches that are the prime branches, not the legislation, the PUC, the executive and the court."

"And then it says the use by right [to drill] is in all zoning areas except residential," Shields continued. "But if you go on to read about the residential where it is allowed, it is a conditional use. If the drilling company finds the [drilling] pad would be better served not 500 feet away, or 1,500 feet away, or whatever it is in local codes, they have a right to appeal to the PUC and it says the PUC shall grant them a variance. Your house doesn't really have any protection despite what it says. That's crazier than our ordinances saying that we have rights and that the federal and state government can't take them away."

And there are other constitutional issues, Shields said, such the unequal power granted by the state to one industry.

"How is that you convey these special rights to this single industry - not U.S. Steel, not Alcoa, not Joe's garage, not Mary's hair salon - just them. Even the federal government, when they build a Social Security office, cannot have a use by right to build anywhere," he said. "The whole world has to abide by Pittsburgh's zoning code except these guys? By conveying them special rights you denigrate the equal rights that we are all entitled to."

Legal Strategies Taking Shape

It is not clear which legal avenue will first challenge Act 13, which takes effect on April 14. Some of the constitutional questions cited by Shields raise more "conventional" issues than limiting corporate personhood and granting civil rights to communities and nature. But courts take cases raising new issues all the time, and fracking opponents say it is inevitable that Pennsylvania's highest courts will face questions about balancing of civil and economic rights.

Indeed, part of the reason the gas industry wanted Act 13 was because the Pennsylvania Supreme Court ruled in 2009 that towns did have zoning authority to discourage drilling, and that authority did not conflict with state oil and gas laws. That unexpected decision - because it held that local zoning was not trumped by statewide gas regulations - opened the door to community rights ordinances. A year later, as Pittsburgh's City Council saw the rapid incursion of the natural gas industry into western Pennsylvania, it became the first of a half-dozen municipalities to respond by asserting its "right to water," "rights of natural communities," "right to self-government" and "people as sovereign."

Pittsburgh's ordinance, like the other Pennsylvania municipalities, also says that "natural gas extraction" companies "shall not have the rights of "persons" afforded by the United States and Pennsylvania Constitutions, nor shall those corporations be afforded the protections of the commerce or contact clauses within the United States Constitution or corresponding sections of the Pennsylvania Constitution."

"Looking back, when you find that your state is in the middle of a 'game-changer' you go, 'Hmm. How do you deal with this," Shields recalled. "And the more I looked at it, it became evident that you really could not stop this juggernaut by way of zoning… What attracted me was it was under a whole different legal theory. It was not based in zoning law. It's based in civil rights. And you reflect that off the constitution of Pennsylvania."

Indeed, in 1972, Section 27 was added to Article One of Pennsylvania Constitution, and reads, "The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania's public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people."

Moreover, Pennsylvania is among a handful of states where citizens can petition the state Supreme Court to hear a case, Shields said, even though he expects the high court to take a case based on some combination of Act 13's constitutional excesses, the new municipal civil rights ordinances, the state constitution's environmental provisions, and the Court's 2009 ruling allowing drilling and local zoning.

Even with all this legal fodder, it is unclear which municipalities will be first to challenge Act 13 and on what basis. Forest Hills' Karas said his borough council would likely join an effort if it were not too costly and led by a non-profit law firm. Efforts to recruit towns were underway, Shields said, but he added that a handful of sympathetic localities were worried about the governor or senior legislators withholding state funds if they sued.

Neither Shields nor Price expect this fight to be settled in court. What they do expect is that political fallout will build as Pennsylvanians see the negative quality of life impacts from drilling - not just checks from leasing their land and a short-term economic boom. They also say GOP leaders will be forced to explain why they have given gas companies new economic rights at the expense of communities' and individuals' civil rights.

"I have never seen an issue that has so many facets," Shields said. "The politicians' talking point is this is a game-changer. My response is, 'Okay, what is the game? What are we changing? You are the moving party. The burden falls on you to explain it."