If you listen to oil and gas companies, many of our legislators in Harrisburg and our Governor, shale drilling is a huge boon for the state, attracting jobs and money we badly need, and those anti-drilling “fracktivists” demonstrating about the environmental hazards are just nuts, anti-job. Besides, there’s no evidence that fracking is dangerous. Now there’s even a billboard and website sponsored by the Pennsylvania Independent Oil and Gas Association (PIOGA) that accuses environmental interests of spreading “slime”:
The slime peddlers come in the form of community activists, national environmental groups, academics and biased public-interest organizations. For years they have deliberately implemented a deceiving and negative campaign about oil and natural gas development to paint a more favorable picture of expensive, inefficient renewable energy.
There are efforts to systematically look at the fracking industry, such as the Post-Gazette’s ongoing Pipeline coverage. But the real terms of the debate on the fracking issue have been set by the gas companies themselves. By sticking to a simple “misinformed tree-huggers vs. innocent, job-creating gas companies” script, they’re distracting citizens from what’s really going on environmentally. But just as important, they’re distracting citizens from the legal rights they’re losing. And these are laws that threaten to take all choice and protection away from the people who must live with the consequences of this industry.
Laws Don’t Apply to This Industry
To date, gas drillers are exempt from 7 of the major federal regulations that normally apply to other industries—including the Clean Water and Safe Drinking Water Act. The fracking industry has argued that they cannot report what is actually in their fracking fluid, because to do so might affect their business.
A full list:
- The Clean Water Act and Safe Drinking Water Act,
- the Resource Conservation and Recovery Act, which exempts fracking from federal regulations pertaining to hazardous waste;
- the Superfund law, which requires that polluters remediate for carcinogens like benzene released into the environment, except if they come from oil or gas;
- the Comprehensive Environmental Response, Compensation, and Liability Act;
- the Resource Conservation and Recovery Act;
- the National Environmental Policy Act; and
- the Toxic Release Inventory under the Emergency Planning and Community Right-to-Know Act.
(adapted from SourceWatch.org)
If you think you are being protected by our nation’s laws, think again. The gas extraction industry doesn’t have to play by these rules.
Senate Bill 367—University of Frack
Another example that seems almost ridiculous: fracking on state campuses. Even the oil and gas companies themselves are forced to admit that violations in drilling operations are rampant, that “brine”–or used fracking water laced with toxic chemicals, radioactive particles and heavy with salt—does sometimes leak, spill or offgas from its containment ponds, and that sometimes, just sometimes, drilling pads explode into stories-high flames. What parent could want to send their children to these campuses?
But SB 367, or the Indigenous Mineral Resource Development Act, is now law. Passed quietly by the state Senate, it allows universities to keep a share of the proceeds from any drilling or mining on their lands, rather than passing it all on to the state, even allowing a small percentage to offset student tuition.
Sen. Don White, R-Indiana, the bill’s sponsor, called it “a new opportunity to generate revenue, helping students, supporting Pennsylvania’s environmental protection efforts and boosting our state economy through the creation of new jobs.”
But one of the biggest reasons why state schools are short of revenue is that their state funding has been cut, by the same people who passed SB 367. It’s a nice Catch-22. Although these schools did theoretically have the right to frack on campus before, there was no incentive to, as none of the money stayed with the school. But after creating the problem, now Corbett’s administration steps in and offers a deal with the devil: frack your campus and we’ll let you keep some of the money.
HB 2224: Parks for Sale!
Although many state residents are unaware, it was already legal to frack in state forests and gamelands. More than 700,000 acres of our forests have already been leased for drilling. But there is no bill before the PA legislature (yet) on fracking in our state parks.
Many environmental watch groups see evidence that Gov. Corbett and his administration are setting the stage for just such a piece of legislation—see the removal of Director of the Bureau of State Parks, John Norbeck, in October, and the previous departure of Dr. Paulette Viola from the Conservation and Natural Resources Advisory Council.
The bill, which remains under consideration at press time, would allow local officials to sell public parkland with no court review and little opportunity for locals to object.
But House Bill 2224 can be viewed not only as part of the Corbett administration’s Fire Sale approach to generating revenue for the state (sell off all the Commonwealth’s assets to the highest bidder for short-term gain, long-term loss) but also as a larger effort by the state to force their private enterprise agenda via shock and awe tactics. A demoralized citizenry who has seen their parks sold, their schools defunded, and their university campuses covered in flaming drilling pads might not remember that the state constitution gives them the right to oppose these laws.
Act 13: Shut Up and Drill
The Commonwealth’s constitution is exactly what’s at stake in Act 13, which was originally passed February 14, 2012. Steve Hvozdovich, Marcellus Shale Policy Associate at Clean Water Action, points out that the Act was introduced without fanfare. “They were trying to sneak it under people’s noses,” he said. “It was a move by Corbett to pay back some strong supporters from the industry.” He added that the Act was bipartisan, supported by Harrisburg Republicans and Democrats.
The Act may have roots in similar legislation modeled by the now-infamous American Legislative Exchange Council, or ALEC (the same people who brought us exciting new laws limiting union rights, voters’ rights and inspiring anti-immigration policy nationwide), but it was, Hvozdovich said, “a piece of legislation that was written by the industry.”
Act 13’s main effect is to completely disempower city, municipal and county governments from passing any zoning laws that might affect the Shale Gas industry, and only that industry.
On July 26, 2012, the Commonwealth court sided with the communities who opposed it, and ruled the Act unconstitutional, saying 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.”
But the ruling was challenged by the state itself, and is currently being reviewed by the state Supreme Court. At press time, it is not known when it will rule. As with the recent return of the Voter ID law, the judges on the Court are evenly split (3 Republicans, 3 Democrats) and a split decision would mean the lower court’s ruling would remain in force.
Former Pittsburgh City Council President and noted anti-fracking advocate Doug Shields says there’s a good chance that the Supreme Court will side with the lower court anyway. “I don’t see the Supreme Court deciding differently,” he said.
The crux of the matter, he feels, not only on Act 13 but with any issue in which the state tries to make new rulings on resources that rights belong to the people of Pennsylvania, is what the state Constitution guarantees.
“People say, ‘We can’t fight the state.’ But who is the state? We are. We have this idea that the government is this big foreign occupying army. But if you’re not happy about it, look in the mirror,” he said.
He adds that PA’s constitution states clearly that “all power is inherent in the people,” and that it guarantees citizens “an inalienable and indefeasible right to alter, reform or abolish their government in such manner as they may think proper.”
Then there’s Section 27 of the Constitution, which deals with Natural Resources and the Public Estate. Shields points out that it guarantees us the right to “clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment.”
“It states that our natural resources are ‘the common property of all the people.’ Many of the laws being passed are in violation of the state constitution. And I’ve not seen any media coverage of this,” he said.
“’The people’ doesn’t just include driller, or the local county government that needs the impact fee payment, or the guy at the trucking company. It also includes the guy who wants to take his family to the state park without watching for frack trucks,” he added.
Whatever the Supreme Court decides on Act 13, Shields points out that little will change.
“You’re still getting drilled. The ruling won’t stop that.”
