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Pennsylvania Commonwealth Court Holds Provisions of Act 13 Unconstitutional
July 26, 2012 in Uncategorized
In breaking news, the Pennsylvania Commonwealth Court, in a 4-3 opinion, has decided that the recently-enacted Act 13 does not pass constitutional muster. The text of the opinion is posted on Representative Jesse White’s web page.
This is a key decision, and will be scrutinized for its legal arguments about state usurpation of community rights to determine what kind of industrial development will or will not take place in their borders. New York State’s home rule tradition is more robust than PA’s, and precedents relating to mining have been set. Still, this decision will impact NYS by providing yet more precedent.
PA Legislature Pre-empts Communities on Fracking
Pennsylvania Legislature Preempts
Community Decision Making
CELDF Statement on the Legislature’s Passage of
Marcellus Shale Legislation (Act 13 of 2012)
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 or (717) 498-0054, or visit our website at http://www.celdf.org.
EPA probing Washington County shale operations
Federal agency looking for violations in air, water, soil
Monday, February 13, 2012
By Don Hopey, Pittsburgh Post-Gazette
The U.S. Environmental Protection Agency is investigating whether specific Marcellus Shale drilling and compressor station operations in Washington County have caused environmental damage that violates federal regulations.
The federal "multi-media" investigation of air, water and hazardous materials impacts, which the EPA has not previously acknowledged, began in late September when on-site testing was done and is the initial stage of a possible enforcement action or actions.
"In Washington County, EPA has conducted inspections at active industrial operations including well pads and compressor stations," Terri White, an EPA spokeswoman at the agency's Philadelphia regional office, said in an email response to questions last week.
"The EPA is assessing the findings of our air, water and hazardous waste investigations in Washington County," said Bonnie Smith, another EPA spokeswoman in Philadelphia, who noted that the agency will not disclose the names of the facility or facilities where testing has been done until the investigation is complete, and that's expected to take "several more months."
Washington County, just south of Pittsburgh, is a hotbed of Marcellus Shale gas development in southwestern Pennsylvania and has more wells and compressor stations, which pump natural gas through pipelines, than any other county in the region.
According to the latest accounting on the state Department of Environmental Protection's Oil & Gas Reporting website, there are almost 700 drilled Marcellus Shale gas wells in Washington County, and as of the middle of last year 278 of those were producing.
Although the DEP does not track compressor stations by county or region, there are at least 11 in Washington County, seven of those owned by MarkWest-Liberty Midstream & Resources LLC.
Water use and contamination has been a concern as deep gas drilling has rapidly expanded in Pennsylvania.
And emission of air pollutants by compressor stations -- including nitrogen oxides, sulfur dioxide, volatile organic compounds, airborne particulates and carbon monoxide -- are measured in hundreds of tons per year and have the potential to adversely affect the state's air quality.
"Washington County was chosen for multi-media inspections because there is a significant amount of oil and natural gas development occurring there," said Ms. Smith. "While natural gas operators employ various safeguards to minimize the risks inherent to the industry, legitimate concerns have emerged regarding potential environmental impacts."
Although the EPA informed the state of the federal probe, Katy Gresh, a DEP spokeswoman, declined to comment on it or say if the department is participating in it.
Such "multi-media" federal investigations, which assess air, water and land impacts of various operations, are not common in Pennsylvania or other states that enforce their own environmental laws. But they are a long-standing part of the EPA "tool box," Ms. Smith said.
According to the EPA program web page, multi-media investigations can target single facilities, multiple facilities owned by a single company, or geographically based environmental problems in a given area or industry.
The comprehensive enforcement approach was used in 2002 to address emissions problems nationwide from the polyvinyl chloride manufacturing industry.
In Pennsylvania, an EPA multi-media investigation in 2006 of the pharmaceutical manufacturer Merck & Co. in Northumberland and Montgomery counties, found company discharges violated the federal Clean Air Act and Clean Water Act, and resulted in a $1.5 million civil penalty paid last year to settle the charges.
The EPA also has the legal authority to step in to supplement state enforcement, much as it did in Dimock, Susquehanna County, last month, where it is supplying replacement water and testing well water supplies in 60 homes where residents say Marcellus Shale gas drilling has contaminated their water supplies. That testing is not a "multi-media" investigation because it's focused only on water problems, but it is similar due to the federal involvement.
The EPA decided to conduct the Dimock tests after receiving water quality complaints from Dimock residents, and after the DEP allowed Cabot Oil & Gas Corp. to stop supplying replacement water.
Rep. Jesse White, D-Cecil, who has been critical of the new Marcellus legislation approved by the Legislature last week and embraced by the Corbett administration, said he was unaware of the on-going federal investigation. He welcomed it because of what he termed "lackluster" regulation by the DEP.
"There are several areas in the county where there are potential problems that might attract the EPA," Mr. White said. "DEP's regulatory efforts should be motivated by facts, not politics. The EPA isn't snooping around here for nothing."
Range Resources, which owns the vast majority of the wells in Washington County, and MarkWest Energy Partners, which owns most of the compressor stations, could not be reached for comment.
Ms. Smith said the EPA tests done in September in Washington County are not related in any way to the on-going review of drinking water resources that is part of the National Study of Hydraulic Fracturing, which has selected a Washington County location as a case study.
Don Hopey: dhopey@post-gazette.com or 412-263-1983.
First published on February 13, 2012 at 12:09 am
http://www.post-gazette.com/pg/12044/1209896-503-0.stm#ixzz1mMoSpcrL
Watch: Your Town Is Fracked
Pennsylvania Republicans just blasted away local control over oil and gas drilling—potentially jeopardizing residential neighborhoods, watersheds, and even school zones.
Farmer Adron Dell'Osa is packing his house onto a trailer and leaving Pennsylvania. James West
Pennsylvania's fracking front lines have just been redrawn.
At first glance, the sweeping new law signed this month may seem a good deal for local communities. Over the next 15 years, the state is projected to rake in between $190,000 to $355,000 per gas well; 60 percent of that will go back to counties and municipalities, with the rest going to a state-managed fund for infrastructure projects. Proponents in the Republican-controlled Legislature insist that the law levels the playing field for industry, while rewarding counties.
But fracking can be a messy and dangerous business, and locals complain that the law takes control away from citizens who have battled hard for local decision-making.
Watch the video and you'll see a tale of two Pennsylvanias: The first one, recognizable from Josh Fox's documentary Gasland, is Susquehanna County, bordering New York state. It is dotted with wells—the result of minimal local zoning laws. The second Pennsylvania is Dallas Township, where disputes, protests, and citizen engagement have kept most fracking development at bay. For now.
Bird's-eye view puts devastation in perspective
By Josh McAuliffe (STAFF WRITER)
Published: September 10, 2011
The clouds parted and the sun finally emerged after a too-long absence. All in all, the perfect afternoon for a joyride high above the Susquehanna River.
The scenery was less pleasant.
On Friday, Times-Tribune staff members took to the skies in a Piper Archer II plane to get an aerial view of the havoc the Susquehanna unleashed on the towns that line its overrun banks. Flying out of Tech Aviation Flight School at Wilkes-Barre/Scranton International Airport, with pilot Jeremy Morris at the controls, the plane traveled north to Towanda, in Bradford County, then turned around and made its way down to Shickshinny in Luzerne County.
Traveling a few thousand feet above the winding, overloaded river gives a different perspective.
Seeing devastation for mile after unobstructed mile lent perspective to the enormity of the disaster: millions of dollars, or more, in property damage, and untold lives upended.
The lofty vantage point also highlights how close these towns are - even those relatively unscathed by the storm's effects. They are not islands unto themselves, although from above some now resembled islands surrounded by acres of muddy, filthy water.
In Tunkhannock, a day after the river and Tunkhannock Creek unleashed their fury downtown, the water appeared to be receding, although it could still be seen running up to the walls of many of the quaint town's landmarks, including Gay's True Value Hardware.
Farther north, the Procter & Gamble plant in WAshington Twp. loomed just as prominently. From the middle distance, the sprawling property looked to be untouched. That could not be said of the tightly woven collection of houses on the other side of the river.
Nearby, a single vehicle traveled along a rusty metal blue bridge, while a firetruck parked along Route 6 near Laceyville sprayed plumes of water into the air.
And Wyalusing High School? It's now beachfront property.
A steady caravan of cars crossed the Route 6 bridge into downtown Towanda, but the town had plenty of still-submerged pockets. There was no action on the runways at its partially underwater airport.
The plane turned around and headed south.
A waterlogged natural gas drilling well stood out among the lush greenery of the Endless Mountains. It was a good distance from the river, apparently a victim of a runaway creek.
Just as everywhere else, the river swelled throughout Falls Twp., but about the only thing it overwhelmed was forest.
After clearing another of the river's seemingly endless series of bends, the plane headed toward Harding and West Pittston. The two bridges heading into the latter were perilously close to the waves. Neighborhoods looked traversable by boat, while on the other side of the river, the city of Pittston kept relatively dry.
From there, more municipalities resembling the canals of Venice. The Eighth Street Bridge in Wyoming was partially submerged and in visible disrepair. The roof of the Redner's Warehouse Market in Edwardsville was now a deck.
And then, a respite from the damage, thanks to the gleaming white floodwalls along the banks in Wilkes-Barre, holding on for dear life, despite a historic crest.
Shickshinny was a despairing stew of wall-to-wall water, and it was there that the plane turned around and headed back to the airport. We had seen enough for one day.
Contact the writer: jmcauliffe@timesshamrock.com
Marcellus Shale.US
http://www.marcellus-shale.us/
The link above will show you what you can expect to experience if hydrofracking is permitted here in Worcester
2 farmers assail gas drillers at forum
Stillborn and deformed cows, ponds that turned black and poisoned drinking water.
Those are some of the little-reported effects being visited on Pennsylvania in the rush to tap natural gas from the Marcellus Shale, two angry Washington County farmers told about 100 people at a forum in Lancaster city Sunday afternoon.
"This has been nothing but hell for my family and neighbors," said Ron Gulla, whose farm near Hickory was the second Marcellus Shale well drilled in the state.
Gulla spoke to a sympathetic crowd in Southern Market Center at the second forum hosted by Community Action Forum on Marcellus Shale Gas (www.communityactionlancaster.com). Gulla said he initially welcomed Marcellus drilling on his property and signed over his mineral rights in 2002 to Range Resources.
Gulla, who said he once worked in the oil and gas industry, said a well on his property leaked and contaminated his three-acre pond, which went from green to black, killing all the cattails.
The energy company treated his farm like a landfill, he said, building an access road out of mill slag that contained heavy metals.
He sued Range, but "they took me down," Gulla said, adding that his family is losing its farm. "It's a good thing I don't get depressed — but I do get mad, and I'm mad."
He called the state Department of Environmental Protection an inept agency "that should be in prison."
"This whole poker game is fixed," he said.
Referring to calls by some for a state moratorium on a drilling procedure called hydraulic fracturing, or fracking, which breaks up the shale and frees natural gas, Gulla said to applause, "I don't want to hear moratorium. This thing better get stopped.
"We're guinea pigs. We've been guinea pigs. The industry needs to be shut down," he said, holding up a photo of what he said was a stillborn calf whose condition was caused by polluted water.
He said he knows others in western Pennsylvania, where he lives, who have encountered health problems from drinking water from wells he says were contaminated by drilling for natural gas.
Many, he suggested, "are overlooking a lot when they see the checks come in."
Terry Greenwood, another Washington County farmer, said he lost 10 calves — eight of them who were stillborn and another born with a cleft palate — after natural gas wells were drilled on his property. The mineral rights had been sold in 1927, long before he bought the farm.
He said he purchased the farm in 1988, primarily because it had good, clean water.
But in 2007, while a Marcellus Shale well was being drilled, he said water spilling from the well flowed into his pond, which turned the color of tea within two months.
His prize breeding bull is believed to be sterile, and milk production on his farm is down, he said.
His well also went bad, he said, forcing him to pay $800 a year for outside drinking water. The gas company, though saying it had nothing to do with the pond contamination, hauls in a tank of water for his livestock, he said.
The natural gas industry can no longer claim it has never contaminated private wells, said Kathy Martin, another forum speaker.
An Oklahoma native with degrees in petroleum engineering and civil engineering, Martin referred to a much-publicized Duke University study released last week that found high methane gas levels in private water wells located near Marcellus drilling sites in Pennsylvania and New York.
Martin called the findings a "smoking gun" for the Marcellus Shale gas industry.
The fourth speaker, state Rep. Eugene DePasquale, D-York, said the changing mood of both the public and legislators toward drilling for natural gas in the Marcellus Shale is triggering more oversight.
"This happened way too fast, and we simply weren't ready to deal with it," said DePasquale, a former DEP employee, said.
As more accidents occur and there are more revelations, such as polluted and radioactive water being sent to sewage treatment plants, "The public is saying, 'Whoa, whoa, whoa — not so fast,' " he said.
http://www.communityactionlancaster.com/
Carolyn Knapp and Carol French, dairy farmers Bradford County
Presentation at Concerned Citizens of Ulysses (May 2011)
http://www.youtube.com/watch?v=p_2oU3wIyow
A leased landowner is being sued for liability for the death of a worker on a rig on their property.
A leased landowner has a lien against his property because the driller did not pay the chemical company for the chemicals they used in fracking.
Pipelines will leave some of your land, timber, etc. inaccessible for 50 years. (Calculate the lost production value.)
Gas companies won’t share pipelines. Each company runs their own.
There is a bedding and hay shortage. (Industry uses it.)
Farmers have to pay more for milk hauling because haulers are losing drivers.
There are tire shortages for heavy equipment.
Water remediation equipment elec. bill is $300/mo.
Gas drilling companies will force local companies (ex. gravel) out of business and then acquire them cheap.
They do this by not paying on time for the products; company has to sell out because it has no cash flow.
Local companies can’t find workers.
A producing well just means gas brought to the surface; well can be capped and just sit there for years.
Blasting rock for roads and pads can affect water before any drilling is started. The act of drilling releases methane into the groundwater - before the fracking starts
Landmen intentionally pit neighbor against neighbor, and lie to farmers