If Not Now, When? If Not Us, Who? Fracking the Frackers (and the Legislature That Enables Them)

A Call for a New Pennsylvania Constitution That Recognizes the Right to Local Control and
Community Self-Government

By Thomas Linzey, Esq., Executive Director, Community Environmental Legal Defense Fund
Ben Price, Projects Director, Community Environmental Legal Defense Fund

For anyone with even the slimmest understanding of the role that the Pennsylvania legislature has played over the past several decades, the recent votes planned in the House and the Senate – to strip communities of their remaining slim authority to regulate fracking – should come as no surprise. Pick your poison – one version would strip zoning authority away from municipalities over the siting of frack wells, the other would give the Attorney General’s office the power to override any local regulation of fracking.

Flashback to 2005, when the legislature faced a similar choice – this time around corporate factory farms. Townships across the State were passing laws to ban them; in response, agribusiness corporations used the State legislature to adopt a law authorizing the Attorney General to intervene on the side of those corporations. A flurry of lawsuits then followed in which the Attorney General’s office filed suits against municipalities to overturn those local laws, which “interfered” with the siting of corporate factory farms.

Unfortunately, it’s not a new story. Over the past twenty years, as communities have begun to stand up to corporations across Pennsylvania, the State has joined hand-in-hand with those corporations to create laws which override those communities. It’s happened time and time again on issues of the land application of sewage sludge, timber harvesting, anthracite coal stripmining, water withdrawals, and land development. It’s even happened with genetically modified seeds, with the legislature stepping into the fray in 2004 to preempt Pennsylvania communities from controlling GM seeds within their community.

Because when the crunch comes, the State never sides with our communities, but with the corporations seeking to use them. In other words, the State sides with a corporate minority, rather than community majorities.

While people’s memories tend to be fairly short; institutional and corporate memory is much longer. It’s why the same model of dealing with community control over factory farms – by passing legislation enabling the Attorney General’s office to be used by agribusiness corporations to bring municipalities to heel – is now being used in the Senate in an effort to nullify community control over fracking. It’s merely another effort to use the power of the State to leverage corporate control over our municipalities.

In the fracking war, it has become more interesting to examine what’s not being talked about than what is.
In the legislature, no one is making the argument that municipalities should have the power to ban natural gas extraction within their own community. The only ones advancing that concept are the municipalities that have moved forward to adopt local laws that do just that.
Nowhere in the debate is there talk of a right to “local self-government” or “community self-governance.” You could spend the wee hours of the morning parsing through the debates in the House and Senate and you wouldn’t see any of those words used; or any respect paid to the needs of the people who actually live in the communities that will be fracked.

Nor are the municipal associations raising it. Just like in the past, the Townships Association, the Boroughs Association, and the County Commissioners Association are more than willing to sell their own members down the river in an effort to remain relevant as State lobbying groups.
One would think that the major environmental groups in the State would be howling about this state of affairs. You’d be wrong. Counter to their propaganda, groups like PennFuture are running the other way – pushing an agenda of “responsible drilling”. As if you can have fracking and have environmental protection at the same time. Think “Citizens’s” Marcellus Shale Commission (CMSC), which issued a 90 page report conceding by omission in that blizzard of words that Pennsylvanians have no inherent right to govern gas extraction corporations, only to ask for more reasonable regulation of the rate at which the natural environment and our communities are destroyed.

You can lay down a blanket, and spread the pillows, but rape by any other name continues to be rape.

The State agency that issues permits to corporations to allow the legalized rape of our communities recently told the people of Dimock that despite the agency’s conclusion that their drinking water had been destroyed by “fracking,” the corporation responsible would no longer have to supply fresh water to Dimock residents. Promises that centralizing control over gas extraction corporations in the hands of the State will protect our rights ring hollow as incidences like this multiply.

It’s no wonder that Pennsylvania communities and municipalities are made to sit at the back of the bus. Nobody is advocating for them – not their State representatives, not their Department of Environmental Protection, not even their own associations, and not even the environmental groups who know that fracking is an environmental holocaust.

Time after time, year after year, our communities are stripped of one more power until our local elected officials are relegated to little more than filling potholes – putting them more and more at the mercy of a small handful of corporate decisionmakers. Replacing public government with a privatized one.

Where does it stop? It only stops if communities join together to force the State to stop it.

Forget the State legislature – they’re going to do what they’re going to do as the corporate whores that they’ve become. Forget the environmental groups – although we should stop funding them when they screw us with our own dollars. Who needs enemies, with friends like these so-called progressives who seek a place at the table of power, only to begin “negotiations” with proposed terms of surrender? And forget the municipal associations –municipalities should revoke their membership in them in response to their complete and utter failure to actually represent their own constituencies.

It’s time for the people to decide about fracking and stop letting middlemen do their worst, while claiming to know best.

What we need is a grassroots, community-driven movement that permanently separates the corporations from our government. One that proposes such wide-scale necessary change that it would turn the Speaker of the House’s face completely white. One that changes the constitutional framework of the State (our framework), to recognize a right to local self-government that can’t be preempted or stolen by the State on the whim of resource extraction corporations. In short, change the law to let the people themselves decide what happens in their own communities.
Sound immensely difficult? Of course. Can we afford not to do it? We can’t. Unless, of course, we want to continue to watch as community lawmaking authority is negotiated away by corporations and the State.

We don’t have a fracking problem. We have a democracy problem.

A little over a year ago, representatives of over thirty Pennsylvania municipalities came together and collectively issued a document known as the Chambersburg Declaration. It calls for an end to the “corporate state” – which currently guarantees that the law will be used for the benefit of corporate minorities, rather than community majorities. The document calls for a new Pennsylvania Constitution – one that recognizes and protects a right to local self-government beyond the authority of the State to strip.

It means building a movement that goes around the State apparatus. It means occupying our local governments by openly ignoring “illegitimate” laws made by State government. It means joining together to write a 21st century constitution which understands that sustainability is impossible without true community democracy.

And let’s get started by trashing these new fracking laws. Operating hand in hand with the fracking corporations, the legislature will do everything in its power to pry open our lands, our neighborhoods, and our communities for the frackers. The courts are already busy doing piece work for corporations as they challenge ostensibly “legal” zoning ordinances in Western Pennsylvania communities like South Fayette, Mount Pleasant, Cecil, and municipalities around the state.

And the governor has populated agencies and commissions of the state with industry hacks. It’s time to frontally challenge the authority of the State by banning fracking in our communities, and then dare the legislature and the courts to use State power to authorize the fracking corporations to override our rights and our authority to self-govern where we live.

That means following the lead of Pittsburgh and other municipalities on fracking to adopt local Bills of Rights, which ban fracking in those communities as a violation of our rights to clean air, clean water, and self-government. Hopefully, when people see the State acting in all of its perverted and disgusting forms to protect the very corporations benefitting from this state of affairs, we can finally begin the work of restructuring our government so that it actually works for us.

In our communities first, then gathering together to change our Counties (County Constitutions, anyone?), and then combining together to elevate our right to self-government to the highest level within the State Constitution. A right to local self-government that the State legislature can never override.

If not us, then who? And if not now, then when?

The Community Environmental Legal Defense Fund is a nonprofit, public interest law firm that has assisted over a dozen Pennsylvania communities to adopt community bills of rights than ban fracking within those municipalities. Over the past fifteen years, the Legal Defense Fund has assisted over one hundred and thirty communities in six states to elevate community rights over corporate “rights.” For more information, www.celdf.org.


Town of Wales, New York, Adopts Community Rights Ordinance That Bans Fracking

Town of Wales, New York, Adopts Community Rights Ordinance That Bans Fracking

“This local law embodies the will of our residents to protect our natural resources from destruction, so our children and grandchildren can have the quality of life we enjoy.”
– Councilmember Mike Simon

MEDIA RELEASE June 15, 2011
CONTACT: Ben Price, (717) 254-3233

(Tuesday, June 14, 2011) Tuesday, June 14th, the Town of Wales, NY, adopted a community rights ordinance titled “Town of Wales Community Protection of Natural Resources.” The ordinance ( No.3-2011) was enacted as a local law under NYS Municipal Home Rule Act, which recognizes broad police powers under the statute. The ordinance establishes a bill of rights for Wales residents and “recognizes and secures certain civil and political rights of the residents of the Town of Wales to govern themselves and protect themselves from harm to their persons, property and environment.”

The ordinance was drafted in consultation with the Community Environmental Legal Defense Fund  (CELDF) and advocated by the community group Protecting Our Water Rights (POWR).

Two key prohibitions are enacted to protect the rights enumerated. The ordinance bans “any individual or corporation to engage in the extraction of natural gas or oil utilizing in whole or in part the process commonly known as and herein defined as hydraulic fracturing” and also prohibits “any individual or corporation to engage in the extraction of natural gas or oil utilizing in whole or in part the process commonly known as horizontal gas well drilling,” with the exception, in each case, of gas wells installed and operating at the time of enactment of the ordinance.

The ordinance also recognizes the right of the people to a form of government where they live “which recognizes that all power is inherent in the people, that all free governments are founded on the people’s authority and consent, and that neither individuals nor corporate entities and their directors and managers shall enjoy special privileges or powers under the color of state law which purports to make community majorities subordinate to them.”

Prior to the vote, POWR member Susan Everett commented “I hope tonight you will be voting to pass this local law. You have listened to the people and acted responsibly to protect our families and our natural resources for generations, and I speak for many in thanking you.”
Procedural questions on the authority of the board to enact the ordinance were addressed by council member Mike Simon, who said, “I don’t want to wait for any other agencies, federal, state or county to tell us what to do. The more I learn about the harms of fracking, the more I know that we have to act on this…It comes down to the principle of home rule versus state rule.”
The town submitted the proposed law to the Erie County planning board in April and they were to make their recommendation within 30 days. Instead they asked the town submit the law to another state agency before voting on it.
“I think the county is trying to pass this off to the state” commented Rickey Vendetti, Wales town supervisor
The Board voted four ayes and one abstention to vote on the ordinance without submitting it to the state, then the board voted four ayes and one abstention to enact the Community Rights Ordinance.
“This is a truly unique example of government working like it should.  The people of Wales went to their town board members and the board responded to their concerns,” stated Sarah Buckley, founder of POWR.
The ordinance includes a local bill of rights that asserts legal protections for the right to water; the rights of natural communities; the right to local self-government, and the right of the people to enforce and protect these rights through their municipal government.
The bill was modeled after the ordinance adopted on November 16th of last year by the City of Pittsburgh, Pennsylvania, and drafted by the Community Environmental Legal Defense Fund. Similar ordinances have been enacted by Mountain Lake Park, Maryland, West Homestead PA, Licking Township PA, and have been introduced as bills by communities in Pennsylvania, New York, Ohio and West Virginia.
The gas extraction technique known as frackinghas been cited as a threat to surface and ground water throughout the region, and has been blamed for fatal explosions, the contamination of drinking water, local streams, the air and soil. Collateral damage includes lost property value, ingestion of toxins by livestock, drying up of mortgage loans for prospective home buyers, and loss of organic certification for farmers in the affected communities.

Ben Price, Projects Director for the Community Environmental Legal Defense Fund, applauded the Council for taking a stand on behalf of community rights.

“State law preempts municipalities from regulating the industry to protect the community. But residents have the right to decide whether they get fracked. We don’t have a gas drilling problem. We have a democracy problem. Its symptoms are the state’s refusal to recognize the right to local, community self-government, and the issuance of permits to drilling corporations that empower them to violate the rights of the human and natural communities.”

The Community Environmental Legal Defense Fund, headquartered in Chambersburg, has been working with people in Pennsylvania since 1995 to assert their fundamental rights to democratic local self-governance, and to enact laws which end destructive and rights-denying corporate action aided and abetted by state and federal governments.

Pittsburgh Bans Natural Gas Drilling

Adopts first-in-the-nation ordinance –
elevates the right of the community to decide, not corporations

November 16, 2010

CONTACT: Ben Price, (717) 254-3233

PITTSBURGH:  Today, the Pittsburgh City Council unanimously adopted an ordinance banning corporations from conducting natural gas drilling in the city.
The ordinance was drafted by the Community Environmental Legal Defense Fund (CELDF) at the invitation of Councilman Bill Peduto, and was introduced by Councilman Doug Shields.

Pittsburgh’s first-in-the-nation ordinance confronts the threat of Marcellus Shale drilling – an activity permitted by the state which allows corporations to site drilling activities over the wishes of a community.

Energy corporations are setting up shop in communities across Pennsylvania, to drill for natural gas in the Marcellus Shale formation.  The gas extraction technique known as “fracking” has been cited as a threat to surface and groundwater, and has been blamed for fatal explosions, the contamination of drinking water, local rivers, and streams.  Collateral damage includes lost property value, ingestion of toxins by livestock, drying up of mortgage loans for prospective home buyers, and threatened loss of organic certification for farmers in affected communities.

Councilman Shields stated, “This ordinance recognizes and secures expanded civil rights for the people of Pittsburgh, and it prohibits activities which would violate those rights.  It protects the authority of the people of Pittsburgh to pass this ordinance by undoing corporate privileges that place the rights of the people of Pittsburgh at the mercy of gas corporations.”

Shields added, “With this vote we are asserting the right of the city to make critical decisions to protect our health, safety, and welfare.  We are not a colony of the state and will not sit quietly by as our city gets drilled.  We encourage communities across the region to take this step and join with us to elevate the rights of communities and people over corporations.”

CELDF’s Ben Price, who is engaging with communities across the state seeking to protect themselves from drilling, said, “Communities are coming to recognize that our state laws and government are not in place to protect their interests, but rather the interests of private corporations.”

Price applauded the city for taking a stand on behalf of community rights. “Some will say that the municipality doesn’t have the authority to ban this noxious practice associated with gas drilling.  The only way that’s true is if the state has the authority to strip the residents of their rights, and it doesn’t.”

Under the ordinance, corporations that violate the ordinance or that seek to drill in the city will not be afforded “personhood” rights under the U.S. or Pennsylvania Constitution, nor will they be afforded protections under the Commerce Clause or Contracts Clause under the federal or state constitution.

In addition, the ordinance recognizes the legally enforceable Rights of Nature to exist and flourish.  Residents of the city shall possess legal standing to enforce those rights on behalf of natural communities and ecosystems.

The Community Environmental Legal Defense Fund, located in Chambersburg, Pennsylvania, has been working with people in Pennsylvania since 1995 to assert their fundamental rights to democratic local self-governance, and to enact laws which end destructive and rights-denying corporate action aided and abetted by state and federal governments.

Source: http://www.celdf.org/press-release–pittsburgh-bans-natural-gas-drilling


Will Introduce

“Pittsburgh’s Community Protection from Natural Gas Extraction Ordinance”

(Monday, August 16, 2010 – Pittsburgh, PA) City Councilman Doug Shields will hold a press conference on Tuesday, August 17th at 11:00 AM where he is expected to announce his intention to introduce legislation that will ban corporations from drilling for natural gas within the city.

Drafted by the Community Environmental Legal Defense Fund, the “Pittsburgh’s Community Protection from Natural Gas Extraction Ordinance” would make it unlawful for any corporation to engage in drilling in the city.

“Many people think that this is only about gas drilling.  It’s not – it’s about our authority as a municipal community to say “no” to corporations that will cause damage to our community.  It’s about our right to local self-government.”

Ben Price, Projects Director for the Community Environmental Legal Defense Fund, will attend the press conference and be available to take questions.  The press conference will take place in the City Council Conference Room.


Connie Sukernek
510 City-County Building
Pittsburgh, PA  15219

Ben Price, Projects Director
Community Environmental Legal Defense Fund
P.O. Box 2016
Chambersburg, PA  17201