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.
