Drilling ban to appear on Borough ballot

By Lucy Bryan Green

When residents of the State College Borough take to the polls on Nov. 8, they will join several other Pennsylvania communities, including Warren and Peters Township, in casting ballots that have the potential to make history and spark controversy.

The citizens of these towns will, for the first time ever, issue popular votes on amendments to their town charters that include environmental bills of rights and bans on natural gas drilling.

These referendums are the fruit of a growing grassroots movement in which communities are asserting their right to self-government, in particular, the right to protect their natural resources. But the possibility that these measures violate Pennsylvania’s Oil and Gas Act has drawn opposition from drilling companies, state officials and local politicians.

The birth of a movement

In November 2010, Pittsburgh became the first city in Pennsylvania to ban natural gas drilling. Numerous municipalities have followed its lead by passing anti-drilling ordinances, including West Homestead, Wilkinsburg and Baldwin.

Braden Crooks, a Virginia native, said he first became interested in the issue of drilling for natural gas in Pennsylvania’s Marcellus Shale as a Penn State senior. A landscape architecture major, Crooks ran a campaign for renewable energy as a member of the student environmentalist club Eco-Action.

Earlier this year, Crooks said that Eco-Action approached Ben Price, Projects Director of the Community Environmental Legal Defense Fund (CELDF), the non-profit, public interest law firm that drafted Pittsburgh’s ban on natural gas drilling.

Price agreed to draft a bill modeled after the Pittsburgh ban, Crooks explained. The resulting State College Borough Bill of Rights (SCBBR) asserts residents’ rights to water, clean air, peaceful enjoyment of home, a sustainable energy future and self-government.

It also state that “Natural communities and ecosystems… possess inalienable and fundamental rights to exist and flourish within the State College Borough.”

Based on these assertions, it prohibits the extraction of natural gas and the storage or transportation of “frack” water within the borough; and it outlaws “the creation of fossil fuel, nuclear or other non-sustainable energy production” within its borough limits.

Finally, it declares that corporations in violation of these prohibitions “shall not have the rights of ‘persons’ afforded by the United States and Pennsylvania constitutions.”

This spring, Crooks presented the bill to the Environmental Coalition of Centre County, a coalition of environmental groups and elected officials.

“They liked the idea but in the end decided that it wouldn’t work out if we tried to go for a Borough Council vote,” Crooks said. “That sort of put a snag in what was going on.”

Then, soon after he graduated, Crooks attended a CELDF conference in Pittsburgh.

“That’s when I got the idea to put it on the ballot as an amendment,” he said. “So at that point we realized I had to start something more official, get an organization of people to petition, eventually move into a campaign.”

In 1973, the Borough of State College adopted a home rule charter, which means it is governed by a mayor and elected council. Home rule emphasizes local control over municipal affairs, and it gives residents the power to petition for and vote on amendments to the charter (the community’s governing document).

Crooks said he decided to stay in State College and put off seeking a full-time job so he could dedicate himself to getting a referendum on the November ballot.

On July 2, he held an official kick-off of the “Groundswell” movement in Sidney Friedman Park and began collecting signatures for the petition to allow State College residents to vote on the measure.

Crooks said that he and Groundswell supporters went door to door, “saying basically that we think we have the right to make decisions at the local level… that we should have clean water and that we should have a clean environment, and it’s our responsibility to steward that.”

“I was surprised by just how many people liked the idea—old, young, conservative, liberal,” Crooks said. “Even people who don’t see [drilling for natural gas] as a bad thing… this idea still resonated with them.”

Groundswell supporters collected 1,000 signatures on the petition—250 more than the required number—before the deadline, according to Crooks.

Since then, Mayor Elizabeth Goreham, Borough Councilman Peter Morris, the Environmental Coalition of Centre County, Penn State’s Eco-Action and the Sierra Club Moshannon Group have all endorsed the referendum.

Goreham, who identified herself as an environmentalist, said she supports the SCBBR for civil reasons—primarily because the amendment articulates citizens’ rights to preserve their natural resources—and that she hopes it will pass in November.

“I really applaud our town—I think we’re on the right road,” Goreham said. “This is a great opportunity for our citizens to become more aware and to speak out and say that we want to keep the beautiful environment that we have.”

Opposition from within

Elected officials in Warren and Peters Townships, where community members are seeking to add similar amendments to their home rule charters, have expressed concern that the measure will expose them to lawsuits.

In Warren, located north of Allegheny National Forest, a citizens group called South Side Alliance of Warren City worked with CELDF to create a community bill of rights and fracking ban and collected the required number of signatures to have it appear on the November ballot.

However, on Sept. 6, the Warren County Board of Elections voted to deny the petition after City Solicitor Andrew Stapleford argued that the amendment “seemed to contradict the applicable law in this area,” according to The Times Observer.

At issue is the matter of jurisdiction over natural gas drilling. Pennsylvania’s Oil and Gas Act (OGA) gives regulatory authority over “oil and gas well operations” to the Department of Environmental Protection (DEP) and preempts local regulation of those activities.

However, the 2009 court case Huntley & Huntley v. Oakmont Borough affirmed the right of municipalities to limit gas drilling and wells in certain zoning districts in accordance with community development objectives authorized by the Municipalities Planning Code (MPC).

The OGA does not preempt “using zoning or subdivision and land development ordinance to guide growth and development that results from the gas boom and to protect community assets,” according to the Pennsylvania Department of Community and Economic Development’s website.

George Asimos, a real estate lawyer at the mid-Atlantic law firm Saul Ewing, explained in a blog post that the OGA gives the DEP the power to regulate the operational aspects of drilling, whereas the MPC gives municipalities the power to regulate the locational aspects of drilling.

For instance, the proposed State College amendment couldn’t legitimately prohibit the transportation of frack water, he said, because that is an operational restriction. It could, however, use zoning ordinances to ban hydraulic fracturing in locations where drilling would interfere with the designated land use.

Asimos said the State College amendment and others like it face several major legal hurtles.

“All municipal governments are subject to state authority,” Asimos explained. “You have to go through the Municipalities Planning Code to adopt a law or ordinance, and if you don’t, it could be void from the moment it is adopted.”

Moreover, Asimos said that courts tend to disfavor “outright exclusions of legitimate land uses,” and that an absolute ban of natural gas drilling would be highly unlikely to survive a court challenge.

He added that municipalities that deprive citizens of the right to extract resources from their land might be obligated to compensate them for those resources in accordance with the eminent domain clauses of the Fifth Amendment of the U.S. Constitution.

“Anyone with a real gas interest… is not just going to sit idly by and say, ‘I can’t get my gas out of the ground,’ ” Asimos said.

Peters Township officials referenced some of these possibilities when they filed suit against the Washington County Board of Elections Sept. 13. The board had approved a referendum drafted by CELDF and circulated by activist group Peters Township Marcellus Shale Awareness after 2,433 township residents signed the petition to have it appear on the ballot.

However, Township Solicitor William Johnson argued that the charter amendment would violate the OGA and expose the town legally and financially, the Pittsburgh Tribune-Review reported.

On Sept. 28, a judge dismissed the suit, writing that the township would not face “immediate harm caused by the presence of the measure on the ballot.”

Similarly, the Warren County Board of Elections reversed its decision to block Warren’s home rule charter amendment after CELDF filed suit on behalf of the South Side Alliance.

CELDF charged that the board of elections’ “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.”

Crooks suggested that one reason Groundswell has not faced similar opposition from elected officials in State College is that there is not an imminent threat of drilling in the borough, so drilling companies are less likely to sue State College than Warren or Peters Township.

Although there is no Marcellus Shale under State College, the borough is located over Utica Shale, which Crooks said lies deeper but holds more gas and is currently being investigated by drilling companies.

“Our solicitor most likely would say if someone raised a legal objection to this [amendment] that we wouldn’t fight back,” said Courtney Hayden, a former Environmental AmeriCorps member who now serves as communications and grants coordinator for the borough.

Hayden, who attended the CELDF conference with Crooks this summer, said that as a municipal employee, she initially felt skepticism about adding the SCBBR to the charter.

“For me, this idea seemed like trying to work outside of the system, and I like to work within the system as much as I can” she said. “[But] it became apparent [over the course of the conference] that we couldn’t work within the current system to protect the rights of local citizens.”

Hayden said her experience working for the Indiana Department of Environmental Management has also influenced her position. During her time there, an internal assessment revealed that it would take the department three years to do what they were tasked to do in a single year.

“I highly doubt the DEP’s ability to fully regulate natural gas drilling, from just a staff perspective,” she said.

Hayden said Crooks likely could have gotten the Borough Council to pass the SCBBR as an ordinance, but she’s glad that it ended on the ballot instead.

“I felt that it had to come from the people,” she said. “I wanted them to get the chance to make their statement.”

Rush Township weighs approaches

Much like Groundswell, a group of concerned residents in Centre County’s Rush Township have come together to lobby for a community bill of rights and drilling ban.

Rush Township is already home to a drilling pad, which Anadarko built in Moshannon State Forest but have not yet begun hydro-fracturing. There’s also an inactive drill off on Dale Road near state Route 350.

Phillipsburg resident Mary Ann Williams said that she and other township residents have been very worried about above or below ground contamination of water sources due to drilling.

“This isn’t like a WalMart or a landfill, even,” Williams said. “This is something that injects chemicals into the water supply.”

Williams said she started “Rush for Clean Water” (RFCW) after hearing CELDF’s Ben Price speak at a meeting in Ridgeway.

He drafted an ordinance similar to State College’s amendment, but because Rush Township is not governed by a home rule charter, it can only be adopted by the three elected supervisors, rather than a popular vote.

Members of RFCW presented the ordinance to the township supervisors in August. Williams said that supporters expected the supervisors to vote on whether or not to advertise the ordinance at the September meeting, but the officials told them, “We need some time to look it over and talk to our solicitor.”

At an Oct. 13 meeting, the supervisors came forward with their own ordinance—an amendment to the existing Subdivision and Land Development Ordinance prepared by Township Solicitor David Mason.

Using zoning authority granted by the MPC, the ordinance would prohibit drilling in “zones of contribution” to sources of public drinking water—both above and below ground.

Township Supervisor Michael Savage said that the supervisors had the ordinance drafted because Mason advised him that the RFCW ordinance would not stand up legally.

“The ordinance that we’re drafting has a much better chance of being upheld, and more specifically I think it will do what we want it to do—which is to protect water supplies,” Savage said.

He pointed out that the township is the largest in the commonwealth, at 149 square miles. It not only has lakes and streams, he said, but major underground aquifers that provide drinking water to neighboring communities of Houtzdale and Cooper and Pennsylvania American Water, which supplies water to 2 million Pennsylvanians in 380 communities.

“We’re not just concerned with protecting the water supply for our citizens, but the water supply for citizens in other jurisdictions,” Savage said.

Williams said she and others at RFCW perceive the township’s ordinance as “appeasement.”

“It’s like trying to fix your boat that has a hole in it, when you’re not plugging the dike—you’re not stopping the flood,” she said. “Don’t you think the best protection for your water sources is to prevent something from happening at all?”

Williams said RFCW member Rob Bailey sent out 1,800 surveys to Rush Township residents. Of the 500 returned, the majority of respondents said they approved of the community bill of rights and drilling ban.

At their October meeting, the township Supervisors voted (2-1) to advertise both ordinances to the public. After public hearings on the ordinances, they will issue their final votes on the ordinances.

Mike Savage, who voted to advertise both ordinances, said that though he’s unlikely to approve RFCW’s ordinance, he is “always in favor or more voices being heard.”

Williams said she does not expect the RFCW ordinance to pass.

“But if the supervisors will not act to protect the community… Rush Township residents could run a home rule charter campaign,” she said. “Home rule is so much more democratic than three supervisors, three men, who don’t represent the majority of people.”

In defense of community rights

CELDF has offered to provide free legal defense to the communities whose referendums and ordinances it drafted if a drilling company files suit against them, according to Ben Price.

Price said he believes the State College referendum and Rush Township ordinance are legally defensible on multiple grounds.

“Which law is illegitimate—the state law that licenses state-chartered corporations to violate the rights of Pennsylvanians in their communities or the local municipal law that asserts the rights of community members, that exercises municipalities’ police powers to protect those rights?” Price said. “And if the answer of the courts is ‘well, not the people living there,’ then we have a situation similar to what the abolitionists fought against and the women’s suffragists fought against. We have an illegitimate law that needs to be changed.”

Price also pointed out an irony he has noticed: many communities that have “color[ed] inside the lines” by passing anti-drilling zoning ordinances in accordance with the Municipalities Planning Code have been sued by drilling companies, while not one community that has “colore[ed] outside of the lines” by passing a drilling ban has been sued.

He said that municipalities that take the risk-averse advice of their solicitors send this message: “We acknowledge we don’t have the authority to ban the corporations from harming us.”

In a recent opinion piece published by CELDF, Price cited the example of South Fayette Township, a suburb of Pittsburgh.

In November 2010, the Fayette’s Zoning Board approved an ordinance drafted by township officials that prohibited the “surface drilling in the community’s neighborhoods, parks, farms and school zones,” according to the Pittsburgh Post-Gazette.

This August, Range Resources—the Texas-based drilling corporation that has 1.2 million acres in Marcellus Shale leaseholds, according to its website—filed suit against Fayette Township.

Price said Range Resources wanted to overturn the ordinance “on the grounds that it violates the corporation’s constitutional rights, particularly its 5th amendment protections under the U.S. Bill of Rights” and that its activities are protected by the OGA.

On Oct. 12, Range Resources filed another suit against Washington County’s Cecil Township, which passed an ordinance in February establishing a 2,000-foot drilling “buffer zone” around schools and a 500-foot “buffer zone” around residential developments.

The corporation charged the township supervisors with “procedural errors,” including giving insufficient notice of zoning map changes to landowners and not adequately advertising the changes, according to Washington’s Observer-Reporter.

Price said that municipalities that “work within the system” attempting not to “rock the boat,” essentially invite legal challenges.

“It’s like putting blood in the water,” Price said. “The sharks come. [These communities] don’t have the confidence to stand up for their rights—they’re just used to being told they can’t have what they want.”

On the other hand, communities that adopt what may be perceived as “radical, illegal and unconstitutional Bill of Rights ordinances” tend to be left alone, he said, because it “creates a PR nightmare for the industry.”

Crooks elaborated on this point, explaining that State College’s doesn’t simply ban drilling, it strategically explains why residents have the right to ban it. He added that in order for drilling companies to challenge outright bans like the one in State College, they would have to challenge the idea that people have rights.

“They don’t want to have to make this argument: ‘No we think these people don’t have the right to say this, but we have the right to frack,’ ” Crooks said.

Industry officials give a different account of how they decide which communities to file suit against. Matt Pitzarella, Range Resources director of public affairs, told the Pittsburgh Post-Gazette that there’s “just not the immediate drilling plans” in other communities like there are in South Fayette.

Real estate lawyer George Asimos expressed frustration with CELDF’s analysis of the situation.

“CELDF would do the citizens of Pennsylvania a service if they would stop propagating their inaccurate statements about the law,” he said. “I have done zoning in… hundreds of counties, and there isn’t anyone who believes that these outright bans will survive. If they’re adopted in places where gas is being prevented from extraction, there’s almost certainly going to be a challenge.”

Merging movements

Grassroots organizers like Braden Crooks, founder of Groundswell, don’t think a court challenge to one of CELDF’s ordinances or amendments would tarnish the movement. In fact, it could energize it.

“[Natural gas corporations] are going to say this law is illegitimate,” he said. “What matters is public opinion in the long term.”

He explained that America has a long tradition of public opinion changing unjust laws—from prohibitions against women voting to Jim Crowe laws.

“We can’t just throw up our hands and say, ‘It can never change,’ ” Crooks said.

Crooks said he feels hopeful that the State College Community Bill of Rights will pass on Nov. 8, especially since locals seem galvanized by the growing Occupy Wall Street movement.

“Groundswell has so much to do with that [movement],” Crooks said. “Because one of the things this does… is remove corporate rights. [The natural gas] industry has got Pennsylvania on lockdown. What we’re trying to do is say, ‘Well, corporations shouldn’t be first before communities. Communities before corporations every time.’ ”

Crooks emphasized how important it is for State College residents to vote on this issue, as it lends legitimacy to a national movement.

“It’s important to have as much buy-in as possible from the community,” he said. “That’s the beginning for Groundswell. We think this should be passed everywhere…and we’re already promoting this idea on a large scale.”