Montgomery County (Virginia) Board of Supervisors Meeting in Blacksburg

Linzey: To stop pipeline, force local governments to pick a fight

By Thomas Alan Linzey, Roanoke Times, December 14, 2014

Kudos to The Roanoke Times for telling it like it is (“Friendly advice for pipeline opponents,” — Nov. 23 editorial). In a nutshell: The law protects energy corporations, not pipeline opponents.

It’s been manufactured that way, of course, to make sure that energy corporations are shielded from community efforts to stop them. Corporations use agencies like the Federal Energy Regulatory Commission to provide an additional layer of insulation and control between communities and those corporations “regulated” by the agency; and corporations routinely use state legislatures to roll over trespass and other property laws.

It’s an unwelcome fact, but corporations have privatized our governments. In Virginia, people trying to stop intermodal transportation projects, pipelines, boondoggle smart roads, uranium mines and a slew of other projects are thus forced to fight not only the corporations proposing the projects, but their own state and federal governments.

We end up trying to convince state and federal agencies to deny permits in hearings where communities are lucky if the microphones are even connected; or fighting lengthy battles that aren’t even about whether the project happens or not — only whether more compensation will be paid as it happens.

Virginia wasn’t always this way, of course. With their Massachusetts counterparts, Virginians spearheaded the American Revolution, and were the first people in the country to adopt a declaration of rights in their constitution — the content of which was copied by every other state in the country.

That declaration of rights established that the role of government is to protect our civil and political rights, and that governments are legitimate only if they are controlled by the people who live under them. If they don’t do either, it is our right — indeed, our duty — to replace those governments with ones that will.

Our forebears wouldn’t recognize the system we currently have, which miserably fails both of those tests. Our local governments are forcibly prevented from protecting our civil and political rights due to a variety of accepted legal doctrines — like pre-emption, corporate rights, and the Dillon Rule.

As for the actual people living within each county, while the system “sees” municipal corporations like county governments, it doesn’t “see” the people who live in those municipalities as having any authority whatsoever.

Realizing that, communities in Pennsylvania are now using their local governments to adopt bills of rights that ban pipelines, frack injection wells,and fracking itself. In New Hampshire, communities have joined together to adopt community bills of rights that ban new powerline projects and the pumping of their water by multinational corporations. In New Mexico and California, people acting through their county governments have banned all fracking.

Want to stop the newest pipeline that’s been proposed? Stop fighting under the corporate script that’s been written for you. Turn your back on FERC and the state legislature. Make them irrelevant.

Force the county boards of supervisors to enact a law that bans certain major eminent domain takings unless approved by a referendum of county voters. Force them to enact a law that refuses to recognize parts of the state law legalizing trespass. Force them to enact a law that forces energy corporations to make their case for public necessity at the county level prior to filing eminent domain actions.

Will the corporation and the state argue that the county doesn’t have the power to take these actions? Of course. But without forcing a confrontation between the state and the local, and between the corporation and we the people of each county, silence is considered consent.

Forcing the corporation to sue the community to vindicate corporate rights over the community’s right to decide dispels the persistent myth that we have a democratic system.

Because you don’t have a pipeline problem, Virginia, you have a democracy problem.

Since the corporations have the system locked up, stopping the pipeline inevitably means engaging in this kind of collective municipal civil disobedience; and it will probably also require doing the traditional kind — physically stopping the surveyors and bulldozers in nonviolent actions in community after community.

While that’s happening, it may even mean building a community-based movement to change the Virginia constitution to elevate people’s rights above the rights of corporations. Communities in eight states are doing that now, and a National Community Rights Network had its first meeting in October.

It’s a tall order. But then again, Virginians have risen before to cleanse the system, by building a new one outside of it.  Just ask the 1776 crowd!

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NOTE: Thomas Alan Linzey is the Executive Director and Chief Counsel of the Community Environmental Legal Defense Fund (CELDF), a nonprofit law firm that has provided legal services to over five hundred local governments and community groups across the United States. He was raised in southwestern Virginia and served as the attorney leading legal opposition to the “smart” road near Blacksburg.  See also:  www.celdf.org

>>>Localities are forced to deal with much of the problems associated with fracking, while states and the federal government rake in all the revenues<<<

From an Article by Frank Shafroth, Governing.com (Public Money), September 10, 2014

The shale gas market is an economic boon for the 30-odd states that permit fracking. The severance tax states impose on the process adds up. In 2010, it generated more than $11 billion. The flow of that revenue goes straight into state and federal piggy banks, as does increased corporate income tax revenue from energy companies profiting from fracking.

Localities, however, enjoy no such benefits. Instead, they get stuck with all the fracking problems: noise from blasting, storage of toxic chemicals, degraded water sources and heavy truck traffic, as well as the rising costs of cleaning up the detritus fracking leaves behind. North Dakota counties affected by hydraulic fracturing have reported to the state Department of Mineral Resources’ Oil and Gas Division that traffic, air pollution, jobsite and highway accidents, sexual assaults, bar fights, prostitution and drunk driving have all increased.

In addition, fracking, in many cases, negatively impacts property values, which in turn depresses property tax revenue. For property owners who own the rights to the oil and gas on their land, the effects of drilling can be offset by royalty payments. But localities have no revenue offset if properties lose value.

The financial risks posed by fracking have become significant enough to capture the attention of mortgage bankers and insurers, who appear to be adopting guidelines that forbid mortgage loans or insurance coverage on properties affected by drilling. According to a 2013 survey by business researchers at the University of Denver, persons bidding on homes near fracking locations reduced their offers by as much as 25 percent.

In North Texas, the Wise County Central Appraisal Review Board reduced the appraised value of a family’s home and 10-acre ranchette more than 70 percent. The board agreed to the extraordinary reduction as a result of numerous environmental problems related to fracking just one year after the first drilling rig went up on the property.

While a number of states continue to push to expand fracking, localities have some leverage. They control land use policies, zoning and property rights. Ironically, one of the earliest local-state challenges came from Exxon’s CEO. As a homeowner in an upscale community in Bartonville, Texas, the CEO found himself at odds with a local fracking operation.

He filed suit to block construction of a water tower near his home — a tower that would increase fracking in the area — alleging it would create “a noise nuisance and traffic hazards.”

The dispute in Texas is only the tip of the derrick, as it were. In New York, the state’s highest court upheld the right of two of the Empire State’s local governments to establish zoning laws that keep out fracking companies. The court’s 5-2 decision was based solely on reaffirming the towns’ rights to make their own zoning choices. In its ruling, the majority noted that the towns had engaged in a “reasonable exercise” of their zoning authority, that they had “studied the issue and acted within their home-rule powers in determining that gas drilling would permanently alter and adversely affect the deliberately cultivated small-town character of their communities.”

In Colorado, where the cities of Boulder, Broomfield, Fort Collins and Lafayette have adopted antifracking measures, Gov. John Hickenlooper recently announced the appointment of a task force to develop recommendations that would reduce land use conflicts when oil and gas facilities are located near homes, schools, businesses and recreation areas. He would also ask the Colorado Oil & Gas Conservation Commission to dismiss litigation challenging the city of Longmont’s ban on hydraulic fracturing and call on all parties to withdraw ballot initiatives on the topic. The task force will make recommendations to the legislature and issue majority and minority opinions.

Penna. Supreme Court

PA Supreme Court strikes down major portions of shale-drilling law

Article by Don Hopey, Pittsburgh Post Gazette, 12/20/2013

Pennsylvania Supreme Court declared major provisions of the state’s Marcellus Shale drilling law, Act 13, unconstitutional Thursday, including one that allows gas companies to drill anywhere, overriding local zoning laws.

The court’s decision, on a 4-2 vote, also sent back to Commonwealth Court for review and disposition challenges by a physician to the Act 13 provisions that would have prevented doctors from telling patients about health impacts related to shale gas development, and a constitutional challenge that the law benefits a single industry.

Voting in the majority, which held that “several challenged provisions of Act 13 are unconstitutional,” were Chief Justice Ronald Castille, and Justices Debra McCloskey Todd, Seamus McCaffery and Max Baer. Justices Thomas Saylor and J. Michael Eakin filed dissenting opinions.

Deron Gabriel, commission president in South Fayette, the only Allegheny County municipality to challenge the shale gas law passed in 2012, said the decision validating municipalities’ zoning rights was a victory for all residents of the county and the state.

“Preserving zoning is vital to local planning efforts, in order to keep industrial activity out of residential and commercial areas,” Mr. Gabriel said. “Now we can keep industrial activities away from our school and residences, and there’s been more and more of a push by the industry to locate closer to the residential areas.”

“We got the major thrust of what we were looking for. The drill-everywhere provision was declared unconstitutional and that part of the law was permanently enjoined,” said John Smith, the lead attorney representing South Fayette and the other municipalities that brought the case.

In addition to South Fayette, the municipal plaintiffs included Peters, Mount Pleasant and Robinson townships in Washington County, and Nockamixon and Yardley in Bucks County in Eastern Pennsylvania.

In affirming the municipalities’ standing to bring the Act 13 challenge, which was challenged by the state’s attorneys, Chief Justice Castille wrote in the 162-page majority decision that “[t]he protection of environmental and esthetic interests is an essential aspect of Pennsylvanians’ quality of life and a key part of local government’s role.”

The decision also notes “how remarkable a revolution is worked by this legislation (Act 13) upon the existing zoning regimen in Pennsylvania, including residential zones,” and it questions whether the General Assembly can pass laws inconsistent with the constitutional mandate to protect the environment.

“By any responsible account,” Chief Justice Castille wrote, “the exploitation of the Marcellus Shale Formation will produce a detrimental effect on the environment, on the people, their children, and the future generations, and potentially on the public purse, perhaps rivaling the environmental effects of coal extraction.”

He goes on to say that although the state’s regulatory powers are broad, they are “limited by constitutional demands, including the Environmental Rights Amendment.”

The decision sent shock waves through the shale gas industry, which had sought legislation guaranteeing uniform statewide land use rules, and the Corbett administration and legislators who had championed passage of the oil and gas law changes.

Gov. Tom Corbett, who had supported and signed the legislation into law in February 2012, issued a statement saying he was disappointed by the decision. He maintained that Act 13 improved environmental protections while respecting local government rights.

“I will continue to work with members of the House and Senate to ensure that Pennsylvania’s thriving energy industry grows and provides jobs while balancing the interests of local communities,” Mr. Corbett said.

Rep. Jesse White, D-Cecil, an outspoken opponent of Act 13, hailed the ruling as an affirmation of the state constitution’s guarantee of “clean air and clean water” and the self-governance rights of local communities.

He said “a clear message has been sent to Gov. Corbett and his friends in the energy industry: Our fundamental constitutional principles cannot be auctioned off to wealthy special interests in exchange for campaign dollars. On this day, David has defeated Goliath.”

 Adam Garber, field director with PennEnvironment, a statewide environmental advocacy organization, said the court’s decision shows that the state constitution’s environmental rights provisions have “serious teeth.”

“The Legislature made a huge overreach in trying to take over regulation of gas drilling from local municipalities,” Mr. Garber said. “The court said there are serious health and environmental impacts from gas drilling that the Legislature did not address and that local communities ought to.”