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.


“Legal Defense Fund Prevails Over Warren County Board of Elections”

The Community Environmental Legal Defense Fund
Pennsylvania Community Rights Network
P.O. Box 360 Mercersburg, PA  17236


“Legal Defense Fund Prevails Over Warren County Board of Elections”


September 12, 2011
CONTACT: Ben Price, (717) 254-3233


(Monday, September 12, 2011)  By a unanimous vote, the Warren County Board of Elections today reversed their decision to prevent a petitioned Home Rule Charter Amendment from appearing on the November ballot. The citizens’ group West Side Alliance of Warren City circulated petitions to local citizens in accordance with the Pennsylvania Home Rule Statute to place an amendment to the City Charter on the November 8th ballot, but at their September 6th meeting the County Board of Elections voted not to place the question before city voters.  The proposed amendment would establish a local Bill of Rights and prohibit the extraction of natural gas or the transport, storage or disposal of drilling waste water within Warren City, among other provisions.

On September 8th,the Community Environmental Legal Defense filed a law suit Fund on behalf of  West Side Alliance against the Board of Elections and it members, charging that their action was illegal and beyond their authority, since the Board has only ministerial authority to judge the validity of the petitions and the process, not its content or effect. The following day, the Board advertised a public meeting, held this morning, to reconsider their decision, resulting in a reversal.

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.

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West Homestead Borough Council Unanimously Adopts Community Bill of Rights Ordinance That Bans Gas Drilling

“Our Council feels that we are protecting our community’s right to clean air and water as guaranteed by the Pennsylvania Constitution. We are protecting the health, safety and welfare of our citizens and our right to self govern. We are very comfortable with our decision.”
—Council President Dave Weir
May 10, 2011
CONTACT: Ben Price, (717) 254-3233


(Tuesday, May 10, 2011)  The Borough Council of West Homestead, Pennsylvania,  unanimously adopted an ordinance that enacts a Local Bill of Rights, along with a prohibition on natural gas extraction to protect those rights.  The bill, titled “West Homestead Borough’s Community Protection from Natural Gas Extraction Ordinance;  establishes specific rights of West Homestead residents, including the Right to Water, the Rights of Natural Communities, the Right to a Sustainable Energy Future, and the Right to Community Self-Government.

The Ordinance was drafted in consultation with the Community Environmental Legal Defense Fund.

The key prohibition enacted to protect the rights enumerated states: “It shall be unlawful for any corporation to engage in the extraction of natural gas within West Homestead Borough, with the exception of gas wells installed and operating at the time of enactment of this Ordinance, provided that the extraction of gas from those existing wells does not involve any practice or process not previously used for the extraction of gas from those wells.”

The bill 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.”

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. A similar ordinance was enacted by Licking Township in Clarion County, Pennsylvania and in Mountain Lake Park, Maryland on March 6th of this year.

West Homestead Councilman Joe Baran said “We just don’t know what the effects of this drilling will have over time to our kids.”
Energy corporations have targeted communities in Maryland, West Virginia, Pennsylvania, Ohio and New York, with plans to drill for natural gas in the Marcellus Shale and other formations.  Corporate “land men” have been signing-up property owners to contracts at a steady clip for the past several years, and those leases, along with state laws that severely restrict the power of local governments to stop the drilling, means that wells are likely to be sited throughout the region, unless communities take a stand to protect their rights.

Mayor John Dindak of West Homestead said “This is the right thing to do.  I hope Governor Corbett gives more thought to what is being done.”

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 the State does not have the authority to issue permits to state-chartered corporations to empower them to ‘legally’ violate the rights of the people. We don’t have a gas drilling problem. We have a democracy problem.”

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

Northwestern Pennsylvania Community Rights Network

The Northwestern Pennsylvania Community Rights Network (NWPACRN) is a network of citizens committed to protecting their communities in northwestern Pennsylvania. The Network acknowledges the inherent rights of human and natural communities and recognizes the authority of the people to assert local, community self-government to protect their health, safety, welfare, and environment from corporate assaults like that posed by the development of Marcellus Shale gas. The oil and gas industry has targeted  Pennsylvania for Marcellus Shale gas extraction. This destructive development is destroying the drinking water of the commonwealth, polluting aquatic habitats and aquifers, and permanently altering  the landscape of Pennsylvania.

The Northwestern Pennsylvania Community Rights Network understands that it is time to protect our communities through an aggressive rights-based initiative, which establishes the right to local decision-making on issues with direct local impact. The Network questions the use of “regulation” (adjusting and documenting the rate of destruction) and “mitigation” (putting Band-Aids on amputations), which negotiate away the absolute rights of people, communities and nature.

Pennsylvania Community Rights Network

On Saturday, February 20th, 2010 citizens from more than a dozen Pennsylvania counties met in Chambersburg to initiate plans to convene a Pennsylvania People’s Constitutional Convention made up of delegates from municipalities across the state.

The Community Rights Network Conference brought together men and women who have struggled for years to assert the rights of citizens to protect the health, welfare and environment of their communities, only to be met with a barrage of legislative preemptions and threats of corporate lawsuits. Not one of our 12.5 million Pennsylvanians enjoys the fundamental right to self-government in the communities where they live. In January 2008, attorney general Thomas Corbett’s office declared in Commonwealth Court that “There is no inalienable right to local self-government.”

Pennsylvanians overwhelmingly think he’s wrong, and it’s time for our Constitution to reflect the will of the people. Join the Network, and let’s create a state constitution that puts the rights of the people at the core of law and government…Read More