Pennsylvania: examples of oil and gas drilling gone wrong, but an opportunity to get it right

Amy Mall, Senior Policy Analyst,

Natural Resources Defense Council,

Boulder, Colorado

Posted August 3, 2009 in Health and the Environment

Pennsylvania. My dad was born and raised there. He also retired there, to a magnificent landscape just south of Lake Nockamixon among the rolling green hills, old stone houses, and bucolic countryside of the serene Delaware River Valley.

North of the lake is the Township of Nockamixon. Earlier this year the Township endorsed federal legislation to repeal the hydraulic fracturing exemption in the Safe Drinking Water Act. The Township cited many reasons, including the importance of water to the community as well as its downstream neighbors and the fundamental precept that it is more effective to protect water by preventing contamination than by cleaning it up after the fact. The Township of Nockamixon also passed rules for natural gas drilling that, among other things, require that all drilling and production be at least 600 feet from residences or buildings used for public assembly and require natural gas producers to submit water quality tests for local approval. Too much to ask? The Township was sued by industry over these rules.

Why does Nockamixon feel the need to take action to protect its water and its citizens?

Pennsylvania has over 70,000 oil and gas wells and, unfortunately, has too many examples of the environmental harms caused by oil and gas production operations. I've listed some incidents below:

In Bradford Township, seven water wells on one street--Hedgehog Lane--were contaminated earlier this year. The state has prohibited additional drilling in the area at this time but is allowing fracturing to go forward. In a letter to their town supervisors, over 30 residents of Hedgehog Lane asked for: new water supplies because over ten homes have contaminated water; air pollution controls due to "caustic" and unhealthy air that keeps residents inside their homes; noise controls to protect them from the constant compressor noise that keeps residents from sleeping at night; enforcement of safety regulations against hazardous roadway conditions, road damage, speeding trucks, tanks without placards and pits without barriers; and property tax reductions to in some small way help compensate for dramatic decreases in property values. The letter signers are not opposed to drilling, not even in their own neighborhood. They wrote: "We do not want to be difficult or take advantage of anybody; we only want what is fair. Please restore our neighborhood to what it was before this drilling occurred. Hedgehog is a big hill and allows enough room for drilling and people's homes." Their requests have not yet been honored.

In the summer of 2008, contamination of a drinking water well used by two families in Gibbs Hill occurred after hydraulic fracturing of a nearby natural gas well. One resident, a nurse, smelled strong fumes and experienced burning in her lungs and sinuses after showering. Her fiancé drank water and felt immediate burning in his mouth. The Pennsylvania Department of Environmental Protection (PADEP) found that pressure in the gas well had exceeded the pressure in the surrounding fresh groundwater system and that there had been unpermitted discharge of hydraulic fracturing fluids, but has not yet issued any final order or enforcement action.

In Dimock Township, a residential drinking water well exploded without warning near a new gas well in January, 2008. At least three other water wells have been contaminated. This case is still being investigated. Dimock has also been the site of two large diesel fuel spills in recent years, as well as torn pit liners and other leaks. In McNett Township , a leaking gas well has contaminated family water supplies as well as two tributaries to Lycoming Creek. In Kushequa, gas drilling is blamed for several explosions in the community water well in September 2007. In Hickory, Ronald Gulla reports that his family farm has been ruined and his fish pond polluted. He has not gotten any help from government agencies. Last year, inadequately treated drilling wastewater contributed to a water quality emergency in the Monongahela River, prompting PADEP to issue a bottled water advisory for 325,000 water customers.

A recent article also discusses accidents in Bridgeville, Vandergrift and, most tragically, Corsica, where three people were killed in a house explosion caused by methane migration from a nearby natural gas well.

On a positive note, the Pennsylvania DEP recently issued a cease and desist order to U.S. Energy Development Corporation, prohibiting new drilling but letting it continue to operate existing wells--after 302 violations over two years.

Pennsylvania-a beautiful state. It can update its oil and gas production rules and strengthen its enforcement activities to catch up with industry expansion and technological advancements. Pennsylvania has a long history of encouraging companies to innovate and adopt new technologies through its Ben Franklin Partnership, which has served as a model for other states. Pennsylvania can now be a model for other states dealing with oil and gas operations by showing the rest of the country how to protect communities, health, and our environment while also stimulating a cleaner and greener oil and gas production industry.

DEMAND ACCOUNTABILITY!

A DEMOCRATIC ROLE MODEL: Blaine Township's Corporate Rights Ordinance

An Ordinance by the Second Class Township of Blaine Township, Washington County, Pennsylvania, Eliminating Legal Powers and Privileges from Corporations Doing Business Within Blaine Township to
Vindicate the Right to Democratic Self-Governance

Ordinance No. _______ of 2006


Section 1. Name. The name of this Ordinance shall be the “Blaine Township Democratic Self-Government and Local Control Ordinance.”


Section 2. Authority. This Ordinance is adopted and enacted pursuant to the inherent authority of the residents of Blaine Township to self-government, and to authority granted to Blaine Township by all relevant state and federal Constitutions and laws, including, but not limited to, the following:

The Declaration of Independence, which declares that the people of Blaine Township are born with “certain unalienable rights” and that governments are instituted among people to secure those rights;

The Pennsylvania Constitution, Article 1, Section 2, which declares that “all power is inherent in the people and all free governments are instituted for their peace, safety, and happiness;”

The Pennsylvania Constitution, Article 1, Section 26, which declares that “neither the Commonwealth nor any political subdivision thereof shall deny to any person the enjoyment of any civil right;”

The provisions of The Second Class Township Code, as codified at 53 P.S. § 65101 et seq., which authorizes the Board of Supervisors of Blaine Township to provide for the protection and preservation of natural and human resources, to promote, protect, and facilitate public health, safety, and general welfare, and to preserve and protect farmland, woodland, and the recreational uses of land within the Township;

The provisions of The Second Class Township Code, Article XV, as codified at 53 P.S. § 66506, which authorizes the Board of Supervisors of Blaine Township to enact ordinances necessary for the proper management, care, and control of the township and its finances and the maintenance of peace, good government, health, and welfare of the township and its citizens, trade, commerce, and manufacturers;

The provisions of The Second Class Township Code, Article XV, as codified at 53 P.S. § 66527, which empowers the Board of Supervisors of Blaine Township to adopt ordinances to secure the safety of persons or property within the township; and

The provisions of The Second Class Township Code, Article XV, as codified at 53 P.S. § 66529, which empowers the Board of Supervisors of Blaine Township to prohibit nuisances on private and public property and the carrying on of any offensive manufacture or business.


Section 3. Findings and General Purpose. The Blaine Township Board of Supervisors recognizes that:

(1) A corporation is a legal fiction created and operated by the express permission of the people of Blaine Township as citizens of the Commonwealth of Pennsylvania;

(2) Interpretation of the U.S. Constitution by unelected Supreme Court justices to include corporations in the term “persons” has long denied the peoples’ exercise of rights by endowing corporations with constitutional privileges intended solely to protect the citizens of the United States or natural persons within its borders. Enforcement of those corporate “rights” by courts and governments has long wrought havoc on the peoples’ democratic process;

(3) Interpretation of the U.S. Constitution by Supreme Court justices to afford corporations the protections of the Commerce Clause (Article I, §8 of the Constitution of the United States) and the Contracts Clause (Article I, §10 of the Constitution of the United States) has prevented communities and governments from securing the health, safety, welfare, and rights of citizens and natural persons;

(4) This illegitimate judicial bestowal of civil and political rights upon corporations prevents the administration of laws within Blaine Township and usurps basic human and constitutional rights guaranteed to the people of Blaine Township;

(5) The illegitimate judicial designation of corporations as “persons” and the bestowal of constitutional rights upon corporations empowers corporations to sue municipal governments for adopting laws that violate corporate “rights”;

(6) The illegitimate judicial designation of corporations as “persons” requires that municipal governments recognize corporations as legitimate participants in public hearings, zoning hearing board appeals, and other governmental matters in Blaine Township;

(7) The illegitimate judicial designation of corporations as “persons” gives corporations First Amendment rights and unfettered access to elections. Those powers enable corporations to deny outright peoples’ First Amendment rights to debate and establish public policy on important issues;

(8) Buttressed by those constitutional rights, corporate wealth enables corporations – and the few who run corporations - to wield the coercive force of law to overpower citizens and communities, thus denying the peoples’ exercise of their constitutional rights;

(9) Democracy means government by the majority, with citizen rights secured to all. Only citizens of Blaine Township should be able to participate in the democratic process in Blaine Township and enjoy a republican form of government therein;

(10) Usurpation of the democratic process by corporations – and the few who run them - denies the rights of human persons to participate in their democracy in Blaine Township and enjoy a republican form of government therein;

(11) The ability of citizens of Blaine Township to adopt laws to protect the health, safety, and welfare of township residents has been denied by the wielding of constitutional “rights” by corporations. The ability of the Blaine Township Board of Supervisors to guarantee to residents a republican form of governance has been, and will be, denied by the wielding of constitutional “rights” by corporations.


Section 4. Specific Purpose. The specific purpose of this Ordinance is to guarantee to the residents of Blaine Township their right to a republican form of governance by refusing to recognize the purported constitutional rights of corporations. By doing so, the Board of Supervisors seeks to remedy current and future harms that corporations have caused - and will continue to cause - to the people of Blaine Township by the exercise of such “rights.”


Section 5. Statement of Law. Corporations shall not be considered to be “persons” protected by the Constitution of the United States or the Constitution of the Commonwealth of Pennsylvania within the Second Class Township of Blaine, Washington County, Pennsylvania.


Section 6. Statement of Law. Within Blaine Township, corporations shall not be “persons” under the United States or Pennsylvania Constitutions, or under the laws of the United States, Pennsylvania, or Blaine Township, and so shall not have the rights of persons under those constitutions and laws. In addition, within the Township of Blaine, no corporation shall be afforded the privileges, powers, and protections of the Contracts Clause or Commerce Clause of the United States Constitution, or of similar provisions from the Pennsylvania Constitution.


Section 7. People’s Right to Self-Governance and Right of Separation. The foundation for the making and adoption of this law is the people’s fundamental and inalienable right to govern themselves, and thereby secure our rights to life, liberty, property, and pursuit of happiness. Any attempts to use county, state, or federal levels of government – judicial, legislative, or executive - to preempt, amend, alter, or overturn this Ordinance or parts of this Ordinance, or to intimidate the people of Blaine Township or their elected officials, shall require the Board of Supervisors of Blaine Township to hold public meetings that explore the adoption of other measures that expand local control and the ability of residents to protect their fundamental and inalienable right to self-government. Such consideration may include actions to separate the municipality from the other levels of government used to preempt, amend, alter, or overturn the provisions of this Ordinance or other levels of government used to intimidate the people of Blaine Township or their elected officials.


Section 8. Severability. The provisions of this Ordinance are severable. If any court of competent jurisdiction decides that any section, clause, sentence, part, or provision of this Ordinance is illegal, invalid, or unconstitutional, such decision shall not affect, impair, or invalidate any of the remaining sections, clauses, sentences, parts, or provisions of the Ordinance. The Board of Supervisors of Blaine Township hereby declares that in the event of such a decision, and the determination that the court’s ruling is legitimate, it would have enacted this Ordinance even without the section, clause, sentence, part, or provision that the court decides is illegal, invalid, or unconstitutional.


Section 9. Effective Date. This Ordinance shall take effect five days after enactment by the Board of Supervisors of Blaine Township.


Section 10. Repealer. All inconsistent provisions of prior Ordinances adopted by the Township of Blaine are hereby repealed, but only to the extent necessary to remedy the inconsistency.



ENACTED AND ORDAINED this ___ day of __________, 2006, by the Board of Supervisors of Blaine Township, Washington County.


By:

______________________________

_______________________________

_______________________________



Attest:

____________________________

http://www.celdf.org/Ordinances/BlaineTownshipCorporateRightsOrdinance/tabid/386/Default.aspx

DEMAND ACCOUNTABILITY!

Pennsylvania Town Fights Big Coal on Mining Rights

A small Pennsylvania town is trying to ban coal mining in a battle being played out across the state as rural communities try to assert control over mining, gas drilling and other businesses. Blaine Township, a community of 600 about 40 miles (65 km) southwest of Pittsburgh, hopes to trigger a legal battle that could determine the rights of municipalities throughout the United States to control corporate activity.

by Jon Hurdle
Published by Reuters, June 15, 2009

TAYLORSTOWN, Pennsylvania – A small Pennsylvania town is trying to ban coal mining in a battle being played out across the state as rural communities try to assert control over mining, gas drilling and other businesses.

Attilia Shumaker, an environmental activist, stands on the porch of an abandoned house that she said was abandoned because coal mining caused the land beneath it to shift, cracking the house’s foundation and basement in Blaine Township, Pennsylvania. Picture taken May 12, 2009. (REUTERS/Jon Hurdle)

Some legal experts say the township is highly unlikely to win that fight. For now the dispute is in federal district court, where major energy companies have sued the township over three ordinances that would ban coal mining and require companies in any business to disclose their activities to local officials.

Penn Ridge Coal LLC, a unit of Alliance Resource Partners, and Allegheny Pittsburgh Coal Co., a unit of Allegheny Energy, say Blaine’s laws violate their corporate rights.

The companies say the ordinances would prevent them from mining 10.6 million tons of recoverable coal beneath the township — enough to supply electricity for 2 million people for a year.

The township has gone further than any of the 120 U.S. municipalities — most of them in Pennsylvania — that have passed ordinances to curb corporate activity such as factory farming or spreading sewage sludge, said its lawyer, Tom Linzey of the Community Environmental Legal Defense Fund.

Of three townships sued by corporations over their ordinances, only Blaine has refused to back down, Linzey said.

Elsewhere in Pennsylvania, towns are resisting efforts by energy companies to extract natural gas from the massive Marcellus Shale formation amid fears that toxic chemicals used in drilling are contaminating ground water and endangering human health.

CREEKS DIVERTED

In Blaine, residents are seeking to prevent coal mining — which they expect to begin there in 2011 — because they fear it will ruin their houses and disrupt water supplies, as they say it has in surrounding areas.

They want to block longwall mining, a technique that rips tons of coal from underground without putting anything in its place, causing the land above to sag. The practice, which has been used in coal-rich southwest Pennsylvania since the 1970s, has cracked the walls, roofs and basements of homes and opened fissures in the land, diverting or draining creeks and ponds.

In neighboring Morris Township, Tammy Bowman pointed to a pile of broken wood and concrete — all that’s left of an outbuilding she said was destroyed by shifting ground from mining beneath her 19th century farmhouse.

“It just started to drop and drop,” she said. “It got so bad, you couldn’t even walk in the door.”

One section of her house is held up with mechanical jacks.

Near the village of Graysville, the 62-acre (25-hectare) Duke Lake, once used for fishing and boating, now sits empty after the shifting ground opened a crack in its retaining wall, environmentalists say.

Blaine’s three ordinances, passed in 2006, 2007 and 2008, also assert that communities have a right under the U.S. Constitution to control business within their boundaries and that corporations do not have constitutional rights as “persons” to sue municipalities for passing laws that would hurt corporate interests.

“This illegitimate bestowal of civil and political rights upon corporations prevents the administration of laws within Blaine Township and usurps basic human and constitutional rights guaranteed to the people of Blaine Township,” says the township’s Corporate Rights Ordinance of 2006.

To implement the ordinances, township supervisors are now campaigning for “home rule,” a legal code that transfers some powers from state to local control and is commonly used to raise taxes or increase the number of supervisors on a board.

ESTABLISHING HOME RULE

Blaine supervisors want to use home rule to establish what they say is the township’s constitutional right to control corporate activity. Voters on May 19 approved a plan to set up a commission to study the proposal and recommend whether to adopt it.

A third lawsuit has been brought by Range Resources, a natural gas company, asking the court to invalidate Blaine’s demand that corporations disclose their activities.

Penn Ridge Coal and Allegheny Pittsburgh Coal are asking U.S. Judge Donetta Ambrose of the Western District of Pennsylvania to declare Blaine’s ordinances invalid and unenforceable.

In April, Judge Ambrose denied the township’s motion to dismiss the case. She is expected to rule late this year.

Linzey predicted the case will eventually go to the U.S. Supreme Court because it pits energy companies who want to exploit one of America’s richest coal seams against residents who are determined to resist what they see as rapacious mining.

He conceded the court is unlikely to overturn more than 100 years of established law that gives corporations rights as “persons” under the constitution, but he said the expected outcome would become a springboard for a popular campaign for a constitutional amendment to strip corporations of those rights.

Blaine’s supervisors said they want to establish a principle of local self-government that will inspire other communities.

“Who dictates how we are going to live here?” asked Board spokesman Michael Vacca. “Should it not be us?”

(Editing by Daniel Trotta and Cynthia Osterman)

© 2009 Reuter

DEMAND ACCOUNTABILITY!