Township loses battle against gas firms over drilling
October 3, 2010 4:15 AM
Taylorstown resident Thomas Westfall points to a pipeline buried under a strip of farmland.
By Rich Lord Pittsburgh Post-Gazette
When Washington County's Blaine Township -- population 597 -- decided to take on the fossil fuel industry four years ago, its leaders called on a group that wants to nix corporate rights and shift power from Washington and Harrisburg to township boards and city councils.
That group, the Community Environmental Legal Defense Fund, accompanied Blaine officials on an odyssey that ended last year with twin smackdowns in court and at the polls. Undaunted, CELDF is now behind legislation, introduced on Sept. 7 in Pittsburgh City Council by Doug Shields, to ban Marcellus Shale gas drilling in the city.
The proposed ordinance CELDF is backing in Pittsburgh -- like bills it promoted in Blaine and elsewhere -- is more than a tweak to the municipal code. It's a challenge to the status quo, proposing the end of all "special privileges or powers" of corporations, and warning of "action to separate the municipality from the other levels of government" if local will is quashed by state or federal authorities.
Gas drilling in city neighborhoods would be but a symptom of a malady, said CELDF Projects Director Ben Price.
"The disease that needs to be cured," he said, "is the denial of rights to self-government on the local level."
What CELDF lacks, according to critics, is a track record of court victories.
CELDF's proposed Pittsburgh ordinance is "on the face of it, unconstitutional," said Councilman Patrick Dowd, who has written his own legislation to sharply restrict -- but not ban -- drilling in Pittsburgh. He said that if the city passes only a CELDF-inspired ordinance, and companies sue and overturn it, that "could expose us to [having] no law" as drilling spreads.
Coal to gas
Blaine's 11.8 square miles of hilly farms and gamelands roll west from tiny Taylorstown, which resident Thomas Westfall calls "a very strange place."
"We don't have any police protection," said Mr. Westfall, a retired insurance agent who was a member of a commission that last year proposed home rule for the township.
"When we go to bed, we leave our houses unlocked ... Nobody gets too involved with their neighbors."
Neighbors fretted, though, in 2006, after Penn Ridge Coal revealed plans for mining there. Residents feared mine subsidence. Township supervisors reached out to CELDF, a 15-year-old nonprofit organization based in the Central Pennsylvania town of Chambersburg.
CELDF's annual budget hovers around $600,000 and is funded almost entirely by grants. A recent donor -- RSF Social Finance, which gives to environmental and educational groups -- lauded the group for helping communities to "tackle the challenging issues of corporate abuse" and supporting "the rights of nature."
Blaine solicitor Dennis Makel said supervisors attended one of CELDF's "democracy schools," at which the organization teaches activists and officials about its approach to local rights. Supervisors "thought, based on those [democracy school] presentations, that they would prevail," said Mr. Makel.
In October 2006, the supervisors passed a CELDF-inspired Corporate Rights Ordinance, "refusing to recognize the purported constitutional rights of corporations," and stripping them, within Blaine, of "the privileges, powers and protections" they've gained through court interpretations of the constitution. The supervisors followed 18 months later with the Disclosure Ordinance, demanding detailed reports from any corporation doing business in the township, and banning firms that have committed "consistent violations of the law." In July 2008, the township banned mining by corporations.
The ordinances also said that federal or state regulators could be held liable, potentially including punitive damages, if their decisions deprived "any Blaine Township resident, natural community, or ecosystem, of any rights" conferred by the township. Efforts by other governments to pre-empt the ordinances could spur "other measures that expand local control," including "separation."
"Jefferson Davis tried this with some states in the South," said Mr. Dowd. "I don't see separation as a solution."
"It's not our position, it's not mine or the organization's position, that [localities] should" leave their county, state or nation, said Mr. Price. The language referring to "separation," he said, is meant to address this question: "What rights do you have if your rights are stripped?"
CELDF "wrote everything" in Blaine's ordinances, said Mr. Makel, who as its solicitor in 2006 advised the township supervisors not to adopt the regulations proposed by the organization. Two of the three Blaine supervisors of that time, both of whom are no longer in office, could not be reached for comment. The third, Jim McElhaney, who remains in office, declined to be interviewed.
Penn Ridge Coal, and then gas driller Range Resources, sued the township, and the cases went to Chief U.S. District Judge Donetta W. Ambrose. Blaine's insurance company even filed a complaint against the township, arguing that it had no duty to defend its client in the matter. CELDF Executive Director Thomas Linzey, an attorney, handled the defense, charging expenses only.
Judge Ambrose, in two decisions, effectively wiped out large parts of the ordinances, finding that Blaine "does not have the legal authority to annul constitutional rights conferred upon corporations by the United States Supreme Court." She also ruled that the township's restrictions on Range Resources ran afoul of the state Oil and Gas Act.
Blaine officials and CELDF tried a new tack, crafting a proposed home rule charter that would have unshackled them from the strictures of the state's Second Class Township Code. Written by an elected, eight-person study commission made up of residents and advised by CELDF, it made pollution a form of trespassing and banned mining and farming by corporations.
"All citizens will have their inalienable and fundamental rights restored for their lands, ecosystems, natural communities and water sources," the charter held.
CELDF "helped us draft the language, provided the legalese," said Fred C. Cramer, who chaired the home rule study commission. "I thought they did a fine job."
The organization billed the township for its expenses only, totaling $3,682.
After the proposal was mailed to voters, opposition "came out of the woodwork," said Mr. Westfall.
Some landowners "thought it was too restrictive of the gas industry," said Mr. Cramer.
The charter lost last November, with 52 votes for and 208 against.
In Washington County, the politics of fossil fuels have changed, said District Judge Ethan Ward of neighboring Donegal. That township also had adopted CELDF-backed ordinances against mining, but repealed them to settle a lawsuit.
Judge Ward is a member of a committee representing 300 property owners that is trying to negotiate lease terms with drilling companies. He said residents backed rules written to stop coal mining companies, which long ago bought mineral rights, and thus don't pay surface owners. But sentiment shifted against those same rules when they stood in the way of gas companies willing to pay lease fees and royalties to get at the gas trapped in the Marcellus Shale bed a mile underground.
A year after Penn Ridge Coal and Range Resources defeated Blaine in court, the township hasn't yet been undermined. Nor are there permits for gas wells there.
But drilling companies have inked leases with some residents. A gas pipeline project has churned the earth in a 75-foot-wide strip across Blaine's farms. The state Department of Environmental Protection has issued 11 gas well permits this year in Donegal, and 10 in adjacent Independence.
"We're right in the middle of the Marcellus gas thing," said Mr. Westfall. "You can't go out on the road anymore without getting run over by a big truck."
Restrict or ban
The appearance in Lincoln Place and Lawrenceville of agents seeking to lease land for potential gas drilling set off a race to legislate in city council.
Mr. Dowd in June proposed a series of safety requirements, plus zoning rules that would limit such activity to large plots of industrial land more than 1,000 feet from homes, schools, churches.
"I care deeply about the health and safety issues associated with Marcellus Shale [drilling]," Mr. Dowd said. Under his proposal -- which is in effect temporarily while it awaits planning commission and council votes -- companies "can't put a drill in the ground until [they've] satisfied the needs and desires of public safety officials."
Mr. Shields said that wasn't enough, and worked with CELDF to craft an outright ban. It would bar corporations from extracting the shale gas below the city, and it aims to invalidate any state or federal permit that says otherwise. It will be the subject of a special council meeting set for Oct. 18 at 1 p.m.
"Here's a city that, up until, say, the '50s was the world center of the steel industry, and it was also known for the quality of life issues that were the downside of that," said Mr. Price. Residents "don't want to see the city industrialized again with drilling in neighborhood parks and cemeteries and back yards."
Some in the gas industry said such statements are scare tactics.
"There is not one drilling company, anywhere, that has any desire to drill in the city of Pittsburgh," said Matt Pitzarella, spokesman for Range Resources. The few-score Pittsburgh properties that gas firms have under contract were either leased mistakenly, or are parts of multiparcel leases that were written to secure drilling rights on land outside of the city, he said.
Mr. Pitzarella said dense city development and the difficulty of building pipelines through suburban and urban land makes it unlikely that any company would drill there soon.
"It would be incredibly expensive to do it, and it would be very difficult," he said.
A Chesapeake Energy spokesman said that firm has leases in the city but has "no immediate plans to seek permits to drill in the city."
Mr. Pitzarella said Cecil's drilling ordinance is a good model. It allows drilling in any zoning district, but demands sound walls, low-impact lighting, flagmen where drilling is close to school bus stops, and other protections.
"Ninety-nine percent of [municipalities], all they want is some degree of control over the activity," he said. He said there may be broader motives at play in the city.
"The same people that push for a ban in the city of Pittsburgh are also calling for a statewide moratorium" on shale gas development, he said.
CELDF doesn't hide its motives.
"The question of corporate rights versus human civil rights," said Mr. Price, "is not a question that has gone to the U.S. Supreme Court, and it should. It needs to."
He can't promise a court victory should Pittsburgh pass an ordinance including some of the same language used in Blaine's stricken rules.
"There isn't a guarantee that the judge is going to slap his forehead, and say, 'How could we have been so wrong for so long?' " he said. But at one time in America, he said, "human rights of a slave were inferior to the property rights of the slaveowner.
"That doesn't get changed by people not challenging it."