Pennsylvania

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Pa. Communities Craft Creative Escape Hatch from Drilling Law

Scott Detrow / StateImpact Pennsylvania

The North Star injection well in Youngstown, Ohio.

While the Pennsylvania Supreme Court continues to deliberate the constitutionality of restrictions to local, Marcellus Shale, zoning regulations in the state’s new drilling law, a handful of communities across the Commonwealth are trying a unique approach to keep the industry away. “Community Bill of Rights” ordinances have been adopted by cities as large as Pittsburgh to ban fracking, and as small as Highland Township, Elk County, to prevent an underground wastewater injection well.

About 500 people live in Highland Township, a forested, rural area near the Allegheny National Forest in the northwestern part of the state. In January, Highland Township Supervisors passed the “Highland Township’s Community Rights and Protection from Injection Wells Ordinance,” essentially banning a planned injection well proposed by Seneca Resources. Deep injection wells in Pennsylvania require permits from both state regulators as well as the EPA. The EPA, which has primacy, is currently reviewing Seneca’s proposal but issued a draft permit in December. It’s unclear how this could play out in court, or even which court it would play out in, if it ever gets challenged by Seneca Resources.

The ordinance was drafted with help from the Community Environmental Legal Defense Fund, a small organization from Mercersburg, which has written 15 such ordinances opposing natural gas production throughout the Marcellus Shale region.

“We’re working on a different playing field here,” says CELDF projects director Ben Price. “And it’s necessary to do that. The industry has stacked the deck legislatively.”

The ordinance passed by Highland Township is not a zoning regulation. Instead, it’s written as a piece of civil rights legislation. So, no matter what happens with the Act 13 challenge, it won’t impact the Township’s ban of deep injection wells. But according to an attorney representing Seneca Resources, the ordinance violates both state and federal law. In a letter written by Brian Clark to Highland Township solicitor David Pontzer, Clark says the Township’s ordinance is preempted by state and federal law.

“It is important for you and the Township to recognize that the issue of local intervention in matters subject to federal and state preemption is extremely important to not only Seneca Resources but the entire natural gas industry in Pennsylvania,” wrote Clark in a letter to the township solicitor after learning of the ordinance. “Industry groups are cognizant of the Township’s action and the significance of legal issues involved. Neither Seneca Resources nor the industry will allow this ordinance to stand.”

Seneca Resources has not yet filed a court challenge, and according to the letter, the company has been unsuccessful in its attempts to speak directly to Highland Township supervisors and their attorney.

Ben Price, with CELDF, says none of the anti-fracking community bill of rights ordinances have been challenged. But if they are, the legal defense fund offers to represent the municipalities pro bono. He says the organization has helped write about 140 “community bill of rights” laws over the past 15 years, and only a handful have been challenged. Price says none have gone to federal court.

Seneca Resources applied for a class II underground injection well permit to convert a former shallow gas production well into a disposal well on their property in Highland Township. Seneca owns both the surface and the mineral rights. According to a fact sheet released to residents, the company chose the site because of its proximity to active natural gas wells, thereby reducing truck traffic. It also says more injection wells are planned. The proposal is to inject fracking wastewater from the company’s conventional and Marcellus wells into a porous sandstone formation about 1900 feet below the deepest part of the aquifer. The company released a detailed fact sheet, which describes the precautions they plan to take to protect the aquifer.

If the company does decide to challenge the ordinance, the Community Environmental Legal Defense Fund says it’s ready.

“The industry will probably try to argue that the state has the sole authority to regulate the oil and gas industry,” says Ben Price. “But [the Highland Township ordinance] is not written as a regulatory law.”

Price explains the logic of the community bill of rights this way. Every corporation operates at the behest of the legislature, which issues corporate charters in the name of the state’s residents. The legislature is elected to serve the residents of Pennsylvania. But if a company’s activities pose a threat to the health and safety of a community, the community has not relinquished to lawmakers in Harrisburg, their rights to restrict the actions of the company.

“What we’re doing,” says Price, “is saying we’re not going to play with their cards. We’re going with a different strategy. We’ll make them play with our deck. People have rights [to determine what happens in their communities.]”

A Highland Township Supervisor’s meeting is scheduled for this evening, where the issue is likely to be high on the agenda. One supervisor recently died, and another is facing criminal charges for causing the release of raw sewage into nearby surface water. So, they may also have other things to talk about.

Comments

  • TheProspector

    There is a disconnect here in the form of “Dillon’s Law”, the current theory of government that says that a local government in Pa has only those rights actually given to it by the State. It is impossible for local governments to “relinquish” rights when the State has never expressly given the right to them. That is why local governments could not construct horse troughs for travelers until the State wrote that right into law for local governments. If local governments could not build horse troughs on their own, it is unlikely that they have the right to ban deep injection wells on their own.

    • Brett Jennings

      The state defines what powers the municipalities have, but that is only where you are creating a law based on those powers. The interesting concept of this is that the municipalities are recognizing rights in law, totally different type of law.

  • http://www.facebook.com/people/Stephen-Cleghorn/1279100934 Stephen Cleghorn

    Private landowners can also take action to protect their land (and to protect the natural communities who depend upon their land and water) from fracking. CELDF helped me to enact the first-of-its-kind conservation easement for my 50-acre organic farm that recognizes the rights of Nature as greater than the rights of private property or corporations and thus forbids any activity on my farm, or below its surface, that would do damage to natural communities and ecosystems that comprise the life of my farm. People can read about that on my blog here and can find the full easement posted there as well: http://angerandcourage.wordpress.com/2012/11/12/recognizing-rights-of-nature-through-a-first-in-the-country-deed-easement/

    • http://twitter.com/knappAP Michael S. Knapp

      So I presume you aren’t doing any farming? Farming causes damage to natural ecosystems. I hope you don’t drive a car, or use electricity on your farm Stephen. I hope you haven’t erected any sort of house there, with plastics and other petrochemicals all over the place. You’d be in violation of your own conservation easement and kicked off of your own land. Wouldn’t that be ironic.

      • http://www.facebook.com/people/Stephen-Cleghorn/1279100934 Stephen Cleghorn

        Michael, yes I am farming. Sitting up now at 4 AM waiting for 34 goats to give birth, planning a new season for this farm. Perhaps my short description of the easement made you draw the conclusion that any amount of disruption of nature would be forbidden. That is not the case, in fact is an impossibility. If you read the entire easement you will see that it is talking about destruction of “Nature, its ecosystems and natural communities” and clearly prohibits any activity that could cause irreparable harm to those living systems present on and below this farm. Of course some damage is done to some members of nature in doing farming. I am thinking of the ground birds and field mice and rabbits that go running when I make hay for my goats, which is why I have set aside two acres that do not get hayed until after the birds have raised their young, But that sort of damage is not of a systemic nature such as ruining forever the aquifer below my farm or causing the air over time to be infused for decades with methane and non-methane hydrocarbons (present in a gas field) that could cause damage to the soil, vegetation and animals (including me) that is grave and permanent. Those are highly likely long-term outcomes of fracking for shale gas. And yes, I have cars and tractors. But I also have solar panels and solar thermal collectors on my barn roof that generate about 24 megawatts of energy annually. I have the highest efficiency gas furnace I could buy and thermal windows throughout the farm house. I need lots of hot water for the dairy. I make use of the energy economy we have all built and I cry out vociferously to our leaders that we need to change it (to little avail so far). Meanwhile our governor and you jack up reliance on fossil fuels and the governor reduces the very renewable energy program that helped me do solar installation. My easement is not perfect. We’ll see how it gets interpreted in court. But I do what I can to say we need more energy choices that do far less damage to natural systems and that we need to move as quickly as we can away from the fossil fuels that are causing systemic harm (climate change) to our planet’s environment that supports all life. What do you do, Michael?

        • http://twitter.com/knappAP Michael S. Knapp

          I congratulate you for taking the steps that you have to minimize you impact. And I absolutely respect the extra hard work that you must endure because of it. I always try to buy local and buy organic when I can.

          But let’s paint an honest picture here. I know you are up in Jefferson County. No shortage of conventional wells up there. There’s 14,000 of them here in Armstrong. There’s no systemic degradation of the ecosystems here because of drilling or in Jefferson County. The ruining of the water and air are NOT highly likely long-term outcomes. Were that they case, we we see evidence all around us. This is the oldest producing gas field on the planet, and has been drilled for over 150 years, most of those years with ZERO oversight or regulation, and minimal interest in protecting the environment.

          Compare that to modern drilling, where we have modern science and practices. We use multiple layers of steel and cement to seal off the wellbore. We run bond logs and pressure tests to ensure integrity. We can x-ray welds in pipelines. We have micro-seismic tests, pre-drill water sampling, 3D seismic mapping, and legions of engineers and scientists overseeing it all, and hundreds of state regulators and inspectors watching over their shoulders with a thick book of regulations and the heavy hand of a government org to hand out sizable fines if anyone steps out of line.

          The proof is in the pudding. Is gas drilling perfect? No. Is it as safe as it’s ever been? Absolutely. But you don’t throw the baby out with the bathwater. There are monumental environmental positives that come from harnessing shale gas. I’m all for solar and wind, but they have their own demons as well. We need an “all of the above” solution to our real world energy needs, but I’ve never seen a reasonable, reputable study (yes, even ones from enviro orgs) that didn’t rely on natural gas for at least 20-30% of our energy needs.

          Gas is here to stay. Critical voices are important, I just wish they would focus on making sure that gas is as clean as it can be, rather than trying to shut it down. Right now, and for decades into the future, we have nothing that is cleaner to step in to take its place. Until such a time that we do, we have to be pragmatic.

          • Brett Jennings

            That is why those historic drilling areas are considered spill areas in the 1987 report to congress. I believe Armstrong was part of the 5 county area mentioned.

  • http://www.facebook.com/Lyndee44 Lyndee Romesberg

    We recently learned (earlier this week) that our well water now how a high concentration of acid in it. I have unsuccessfully found any articles on the web concerning any proposed Fracking around my area of south western Pa specifically in or around Rockwood, PA and Garrett, PA that may help us determine why we have a high concentration of acid in our well water. Is there anyone that could help me find this out?

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