EXPOSED: PA Act 13 Overturned!
Originally an ALEC Model Bill
http://www.nationofchange.org/exposed-pennsylvania-act-13-overturned-supreme-court-originally-alec-model-bill-1343483456
Pennsylvania Supreme Court ruled
PA Act 13 unconstitutional. The bill would have stripped away local zoning laws, eliminated the legal concept of a
Home Rule Charter, limited private property rights, and in the process, completely disempowered town, city, municipal and county governments, particularly when it comes to shale gas development.
The Court
ruled that Act 13 "…violates substantive due process because it does not protect the interests of neighboring property owners from harm, alters the character of neighborhoods and makes irrational classifications – irrational because it requires municipalities to allow all zones, drilling operations and impoundments, gas compressor stations, storage and use of explosives in all zoning districts, and applies industrial criteria to restrictions on height of structures, screening and fencing, lighting and noise."
"It’s absolutely crushing of local self-government," Ben Price, project director for the
Community Environmental Legal Defense Fund (CELDF),
told Rosenfeld. "It’s a complete capitulation of the rights of the people and their right to self-government. They are handing it over to the industry to let them govern us. It is the corporate state. That is how we look at it."
The other half of the question left unanswered, though, is who do oil and gas industry lobbyists feed anti-democratic, state-level legislation to?
The answer, in a word: ALEC.
PA Act 13, Originally an ALEC Model Bill
ALEC's meetings bring together corporate lobbyists and state legislators to schmooze, and then vote on what it calls "
model bills." Lobbyists have a "
voice and a vote in shaping policy," CMD explains. They have de facto veto power over whether their prospective bills become "models" that will be distributed to the offices of politicians in statehouses nationwide.
A close examination suggests that an ALEC model bill is quite similar to the recently overturned Act 13.
The
model bill opens by saying that "…the planning and zoning authority granted to rural counties may encourage land use regulation which is overly centralized, intrusive and politicized." The
model bill's central purpose is to "grant rural counties the legal authority to abandon their planning and zoning authority in order to transition to decentralized land use regulation…"
The key legal substance of the bill
reads, "The local law shall require the county to repeal or modify any land use restriction stemming from the county’s exercise of its planning or zoning authority, which prohibits or conditionally restricts the peaceful or highest and best uses of private property…"
In short, like Act 13, this ALEC model bill turns local democratic protections on their head. Act 13, to be fair, is a far meatier bill, running
174 pages in length. What likely happened: Pennsylvania legislators and the oil and gas industry lobbyists they serve took the key concepts found in ALEC's bill, ran with them, and made an even more extreme and specific piece of legislation to strip away Pennsylvania citizens' rights.
A Model That's Been Passed and Proposed Elsewhere
Ohio HB 278
Long before the ALEC model bill was enacted in 2010, Ohio passed a similar bill in 2004,
HB 278, which gives exclusive well-permitting, zoning, and regulatory authority to the Ohio Department of Natural Resources (ODNR). Ohio is home to the
Utica Shale basin.
Mirroring ALEC's model, HB 278
gives the "…Division of Mineral Resources Management in the Department of Natural Resources…exclusive authority to regulate the permitting, location, and spacing of oil and gas wells in the state.."
Could it be that the ALEC model bill was actually inspired by HB 278? It's very possible, based on recent history.
Idaho HB 464
Key language from HB 464
reads,
It is declared to be in the public interest…to provide for uniformity and consistency in the regulation of the production of oil and gas throughout the state of Idaho…[,] to authorize and to provide for the operations and development of oil and gas properties in such a manner that a greater ultimate recovery of oil and gas may be obtained. (Snip)
It is the intent of the legislature to occupy the field of the regulation of oil and gas exploration and production with the limited exception of the exercise of planning and zoning authority granted cities and counties…
The Democratic Party State Senate Minority Office was outraged about the bill's passage.
"[HB] 464 establishes Idaho law governing oil and gas exploration and development including limits to local control over the location of wells, drilling processes, water rights and the injection of waste materials into the ground,"
reads a press release by the Idaho State Senate Minority Office. "[HB 464] preempts local land-use planning statute dating back to 1975. Counties will have little input in the permitting process whereby well sites are selected (or restricted) and no role in planning and zoning."
Sound familiar? Like PA Act 13 and the ALEC model? It should.
Full-scale fracking has yet to take place
in Idaho, though the race is on, with Idahoans
signing more and more leases with each passing day. Thanks to gas industry lobbyists' use of ALEC's model bill process, the industry will have far fewer hurdles to clear in the state when the race begins.
Colorado SB 88
The Democratic Party-controlled Colorado State Senate
struck down an ALEC copycat bill,
SB 88, in February 2012.
The Bill Summary portion of SB 88
explains the bill concisely, mirroring, once again, PA Act 13 and the ALEC Model Bill: "…the Colorado oil and gas conservation commission has exclusive jurisdiction to regulate oil and gas operations, and local regulation of oil and gas operations is preempted by state law."
Colorado sits atop the
Niobrara Shale basin.
Like Pennsylvania, it has seen many cities successfully move to ban fracking, making the goal of a bill of this nature all the more obvious.
“From Colorado Springs to Boulder County, cities and counties across Colorado have passed measures against fracking,” Sam Schabacker of Food and Water Watch
told the Colorado Independent at the time SB 88 was struck down. “This bill is an attempt by the oil and gas industry to strip local governments of what little power they have to protect their citizens and water resources from the harms posed by fracking.”
“I don’t know where it goes from here. I suspect there is a happy medium and there is a compromise that can be reached,” Democratic Party State Senate President Brandon Shaffer
told the Independent. “I also suspect next year additional legislation will come forward on both sides of the spectrum. Ultimately I think the determination will be made based on the composition of each of the chambers. If the Democrats are in control of the House and Senate, there will be more emphasis on local control.”
Texas HB 3105 and SB 875
SB 875's key operative paragraph
explains,
[Entities] subject to an administrative, civil, or criminal action brought under this chapter for nuisance or trespass arising from greenhouse gas emissions [have] an affirmative defense to that action if the person's actions that resulted in the alleged nuisance or trespass were authorized by a rule, permit, order, license, certificate, registration, approval, or other form of authorization issued by the commission or the federal government or an agency of the federal government…
The
ALEC model bill calls for a transition from centralized power by local governments to individual property rights under the
common law of private nuisance, a civil suit that allows those whose private property has been damaged to file a legal complaint with proper authorities. Now, under the dictates of SB 875, even these rights have been eviscerated.
Perhaps Texas exemplifies a realization of the oil and gas industries' ideal world: legal rights for no one except themselves.
"This [bill allows] the willful trespass onto private property of chemicals and or nuisances, thus destroying the peaceful enjoyment of private property, which someone may have put their life savings into,"
Calvin Tillman, former Mayor of Dish, Texas and
one of the stars of Josh Fox's Academy Award-nominated documentary film, "
Gasland," wrote in a
letter. "Therefore, private citizens would have no protection for their private property if this amendment was added."
HB 3105's
key language, meanwhile, makes the following illicit (emphases mine):
…the adoption or issuance of an ordinance, rule, regulatory requirement, resolution, policy, guideline, or similar measure…by a municipality that..has effect in the extraterritorial jurisdiction of the municipality, excluding annexation, and that enacts or enforces an ordinance, rule, regulation, or plan that does not impose identical requirements or restrictions in the entire extraterritorial jurisdiction of the municipality…or damages, destroys, impairs, or prohibits development of a mineral interest…
This bill, unlike SB 875,
never passed, though if it did, it would do basically the same thing as PA Act 13 and the ALEC model. If it ever does pass, however, it would mean that Texans would have literally no legal standing to sue the oil and gas industry for wrongdoing in their state.
ALEC's Bifurcated Attack: Erode Local Democracy, Strip Federal Regs,
Coming full circle, though PA Act 13 was struck down, for now, as constitutional, that doesn't necessarily mean ALEC copycat versions like it won't start popping up in other statehouses nationwide.
Sleep on this for awhile. There's more to come.
Part two of DeSmog's investigation on ALEC's dirty energy agenda will show that, along with pushing for the erosion of local democracy as we know it today, ALEC has also succeeded in promulgating legislation that would eliminate Environmental Protection Agency (EPA) power to regulate greenhouse gas emissions - another Big Business giveaway of epic proportions.
If anything is clear, it's this: statehouses have become a favorite clearinghouse for polluters to install the "
Corporate Playbook" in place of democracy.
"DEP Secretary Michael Krancer has ties to Montgomery County, and makes his home in Bryn Mawr... Lt. GovernorJames “Jim” Cawley has political and professional ties to Bucks County"
Add Dave Sanko, director of the PA State Assn of Township Supervisors, (PSATS), he also has close ties to both of these counties. At PSATS' recent annual meeting members approved 2 resolutions supporting towns' rights to restrict fracking. Sanko was mum on this during the recent exemption debate.
Add Butler county as an area suffering "harmful and dangerous results" from fracking. Butler's even further from the exempted counties than Tioga & Bradford...
I don't know what a leaking mercaptan tank smells like, but I do know what crap smells like & this weekend's slithering in H-burg smells like crap. Nice, right on cusp of our nation's most important holiday, the 4th of July, Independence Day, with liberty and JUSTICE for all. Stay classy H-burg.
Then I noticed the marble statues with bare breasts supporting the pillars of the house. A room full of corrupt, small minded legislative ‘boobs’ being supported by the ‘boobs’ who pay their salary with tax dollars. It sort of put the electorate-legislature relationship into perspective.
There was a time in this country, when we didn't stop to think is we could 'win' a battle. We stood up and fought for what was right knowing that we could lose, but took on the fight because it was simply the right thing to do.
As Ben Franklin once said when deciding to stand up to England: “Gentlemen, one thing is certain. We will hang together, or we will surely hang separately.” In other words, win or lose, we must fight.
There was a time when we made laws based on what is right, what is moral, and what is just. Now, we establish laws based on what is profitable, and politically acceptable, then the people who are negatively affected suffer needlessly while others approach our elected officials with ‘hat in hand and bend in knee’ and beg for justice. How pathetic is that? Haven’t we figured out that there will be no justice until we demand it?
SB 1263 is not just ‘bad legislation’. It’s immoral, and an insult to every Pennsylvanian living in a county that is having Act 13 shoved down our throats.
Some of us attempt to ‘speak truth to power’. The problem is ‘power’ doesn’t care so they’re not even listening. So, maybe it’s time we turn and face the people and try to ‘speak truth to apathy and stupid‘.
Maybe I'm too idealistic about these things. If I am, so be it. But I still believe that anything worth having is worth fighting for, and if we're not willing to fight to defend what we claim to value, then perhaps we don't deserve it.
I've no doubt that some will be angered by this rambling. Some may even be offended. My hope is that many more will be inspired to step out of their twitter/facebook comfort zones, and their home, and start becoming seriously and actively involved in defending our civil and constitutional rights. After all, it is our duty and obligation as American citizens to stand up and resist tyranny and oppression, even when it stems from our own government.
So, how many people needed be harmed... how many lives need to be ruined... how many unjust laws will be forced upon us... how many violations against our health, safety, property, and the environment will be enough to get people to wake up? Someone give us a number.
There has to come a point when we decide we're not going to be led about like sheeple anymore.
For what it's worth, that's my two cents.