Fracking spurs a municipal mutiny in Pennsylvania

A sign opposing hydraulic fracturing to extract natural gas in Butler County, Pa. Associated Press
A sign opposing hydraulic fracturing to extract natural gas in Butler County, Pa. Associated Press
Posted: May 24, 2012

Not content to leave Pennsylvania communities with any control over gas drilling within their borders, state legislators have stripped municipalities of their zoning authority under Act 13, choosing energy corporations over the people who elected them. This isn’t exactly new ground for the legislature; indeed, taking away communities’ authority to govern themselves is a decades-old pastime in Harrisburg, one that has shifted into high gear over the past 20 years.

The legislature made logging a guaranteed right in all zoning districts back in 1992, giving in to timber interests and eliminating municipalities’ authority to provide for conservation zones.

Shortly thereafter, lawmakers stripped municipalities of their authority to regulate corporate water extraction, the use of genetically modified seeds, and the dumping of urban sewage sludge on farmland. They also required all communities to allow “reasonable” extraction of minerals.

Until recently, however, corporations still had to go to the trouble of suing municipalities if they wanted to overturn local laws. That changed in 2005, when, responding to the growing number of municipalities banning factory farms, the legislature adopted Act 38, the Agriculture, Communities, and Rural Environment Act, known as ACRE. It not only preempted municipal regulation of factory farming; it also gave private agribusiness a public lawyer: the state attorney general.

Under ACRE, instead of bothering to sue municipalities themselves, factory farmers could ask the attorney general to do so for them. Taxpayer-funded state attorneys were thus required to act at the behest of private corporations and against our communities to overturn democratically enacted laws. The state became not only an enactor of corporate-written law, but also a direct enforcer of it.

Using this as a model, Act 13 once again positions the state as corporate enforcer, this time through the Public Utility Commission. Under the law, the PUC can move to nullify any local laws that regulate gas extraction.

Act 13 hastens Pennsylvania’s transition to corporate statehood. Municipalities have been transformed into wholly owned subsidiaries of the legislature, with a status somewhere below that of private corporations.

Given this long history of local preemption, it’s not surprising that turning to the legislature to protect communities from gas drilling and other potentially harmful activities has been fruitless. That war is over, and the oil and gas corporations won.

It’s time we learned from this history and stopped expecting any other outcome from Harrisburg. It’s time for a grassroots revolt aimed at enshrining the right to community self-government in the Pennsylvania Constitution, protecting local authority from the state.

The work begins in our communities, with the adoption of local laws and home-rule charters directly challenging the legal doctrines that subordinate communities to the legislature, as well as the privileges that protect corporations from democracy. More than 100 municipalities across Pennsylvania have begun this journey, elevating the rights of people and communities above the rights of corporations and commerce. These municipalities recognize the need for community rights independent of the legislature and are coming together to form the Pennsylvania Community Rights Network.

Their goal is to convene a people’s constitutional convention that can protect the right to community self-government through the state constitution. It is only through the constitution that the change we need can take place. We have to go over the heads of state legislators and directly to their bosses, the people.

Ben Price is projects director for the Community Environmental Legal Defense Fund in Mercersburg, Pa. He can be reached at benprice@celdf.org.

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