Bush’s Play Central Role In Suing Over Fracking Ban
November 9, 2014
Pennsylvania – Court Strikes Measures Favoring Gas Industry – NYTimes.com
December 19, 2013
Pennsylvania – Court Strikes Measures Favoring Gas Industry – NYTimes.com.
Supreme Court declares part of Act 13 unconstitutional
Local zoning victory: State Supreme Court strikes down major parts of oil and gas drilling law
http://www.mcall.com/news/breaking/mc-pa-marcellus-shale-zoning-20131219,0,902680.story
Check out the statements from the Court ruling – should help us everywhere!
For Immediate Release
December 19, 2013
Contacts: Maya van Rossum, the Delaware Riverkeeper, 215-369-1188×102
Tracy Carluccio, Deputy Director, Delaware Riverkeeper Network 215-369-1188×104
Jordan B. Yeager, Counsel for plaintiffs, (o) 267-898-0570, (c) 215-264-1166
Delaware Riverkeeper Network, Municipalities, and Pennsylvania Physician
Prevail in PA Supreme Court on Act 13, Municipal Preemption Law
Gas Industry Takeover Law thrown out by State’s Highest Court
Pittsburgh PA – The PA Supreme Court has ruled Act 13 is unconstitutional on the grounds that it violates the Environmental Rights Amendment to the Pennsylvania Constitution. Notably, the Court stated, ““As the citizens illustrate, development of the natural gas industry in the Commonwealth unquestionably has and will have a lasting, and undeniably detrimental, impact on the quality of these core aspects [life, health, and liberty: surface and ground water, ambient air, etc.] of Pennsylvania’s environment, which are part of the public trust.” Opinion at 117.
Additionally, the Court stated, ““By any responsible account, the exploitation of the Marcellus Shale Formation will produce a detrimental effect on the environment, on the people, their children, and future generations, and potentially on the public purse, perhaps rivaling the environmental effects of coal extraction.” Opinion at 118.
The Decision and concurring opinion can be found at: http://www.delawareriverkeeper.org/resources/Reports/Opinion%20J-127A-D-2012oajc.pdf
http://www.delawareriverkeeper.org/resources/Reports/Concurring%20Opinion%20J-127A-D-2012co.pdf
The Pennsylvania Supreme Court has ruled that Act 13 violates the Pennsylvania Constitution. In doing so, the Court struck down the shale gas industry’s effort to force every municipality in the state to allow gas drilling and related industrial operations in every zoning district. The Court’s decision upholds the ability of local governments to protect their local communities and natural resources through zoning. Chief Justice Castille authored the historic majority opinion. Justices Todd, McCaffrey and Baer joined in the result.
Justices Castille, Todd, and McCaffrey held that the provisions violate Article I, Section 27 of the Pennsylvania Constitution – the Environmental Rights Amendment. Justice Castille stated that “we agree with the citizens that, as an exercise of the police power, Sections 3215(b)(4) and (d), 3303, and 3304 are incompatible with the Commonwealth’s duty as trustee of Pennsylvania’s public natural resources.” In discussing Section 3304’s uniform zoning provisions, Justices Castille, Todd, and McCaffrey agreed that the provisions “sanctioned a direct and harmful degradation of the environmental quality of life in these communities and zoning districts.” They also concluded that the Act forced some citizens to bear “heavier environmental and habitability burdens than others” in violation of Section 27’s mandate that public trust resources be managed for the benefit of all the people.
Justice Baer concurred in finding Act 13 unconstitutionality, agreeing with the Commonwealth Court’s reasoning. Justice Baer stated that the provisions “force municipalities to enact zoning ordinances, which violate the substantive due process rights of their citizenries.” He further noted “Pennsylvania’s extreme diversity” in municipality size and topography and that zoning ordinances must “give consideration to the character of the municipality,” among other factors, which Act 13 did not.
“The Court has vindicated the public’s right to a clean environment and our right to fight for it when it is being trampled on. Today the environment and the people of Pennsylvania have won and special interests and their advocates in Harrisburg have lost. This proves the Constitution still rules, despite the greedy pursuits of the gas and oil industry. With this huge win we will move ahead to further undo the industry’s grip of our state government,” said Maya van Rossum, the Delaware Riverkeeper.
“This is a great historic victory for local democracy, for public health, and for the health of our environment. The shale gas industry overreached, greedily wanting to operate without respecting local concerns and without playing by the same set of rules everyone else has to play by. The Corbett Administration and the General Assembly went along with it and tried to give away our rights to the gas industry. The Supreme Court has made it clear that what they were trying to do violates our state Constitution. It’s a great day for the Constitution and the people of the Commonwealth”, said Jordan Yeager, counsel for the plaintiffs.
“The gas industry tried to take over every inch of every municipality in Pennsylvania for drilling, regardless of the zoning rights of local governments and the residents they represent. The industry and their backers in Harrisburg overreached when they thought they could literally takeover the state, turning it into one big drilling and gas infrastructure site. We fought this law because it was illegal and because it spelled ruin for public health and the environment, even though we, as plaintiffs, didn’t have nearly the resources our powerful and well-funded opponents had. This proves, when you have the law and environmental rights on your side, it’s worth fighting and you can win,” said Tracy Carluccio, Deputy Director, DelawareRiverkeeper Network.
The Pennsylvania Supreme Court also reversed Commonwealth Court’s finding that the Delaware Riverkeeper Network lacked standing in this case. Specifically, the court found that DRN’s members engendered “a substantial and direct interest in the outcome of the litigation premised upon the serious risk of alteration in the physical nature of their respective political subdivisions and the components of their surrounding environment. This interest is not remote.” Opinion at 21-22. Furthermore, the court also found that Maya van Rossum, as the Executive Director of the Delaware Riverkeeper Network, also has standing in her official capacity to represent the membership’s interests.” Opinion at 22. The ruling therefore sets important precedent for what immediate interest or harm environmental organizations and their members need to demonstrate in order to properly establish standing.
Additionally, in a reversal of the findings of the Commonwealth Court, the Pennsylvania Supreme Court found that Dr. Khan satisfies standing requirements. The court noted that “existing jurisprudence permits pre-enforcement review of statutory provisions in cases in which petitioners must choose between equally unappealing options and where the third option, here refusing to provide medical services to a patient, is equally undesirable.” Opinion at 25. In other words, provisions of Act 13 put Dr. Khan in the untenable and objectionable position of choosing between violating Act 13’s confidentiality agreement and “violating his legal and ethical obligations to treat a patient by accepted standards, or not taking a case and refusing a patient medical care.” Id. Therefore, Dr. Khan’s interests were indeed “substantial and direct…not remote,” and conferred standing. Opinion at 26. The Court remanded Dr. Kahn’s case to the Commonwealth Court for further proceedings.
Background:
Seven municipalities, Delaware Riverkeeper Network, and Dr. Mehernosh Khan filed a legal pleading in Commonwealth Court on March 29, 2012 challenging Act 13, also known as HB1950, which was signed into law by Governor Corbett on February 14, 2012. The municipalities are: Township of Robinson, Washington County; Township of Nockamixon, Bucks County; Township of South Fayette, Allegheny County; Peters Township, Washington County; Township of Cecil, Washington County; Mount Pleasant Township, Washington County; and the Borough of Yardley, Bucks County. Act 13 amends the Pennsylvania Oil and Gas Act, preempting municipal zoning of oil and gas development. It also establishes an impact fee on natural gas. The named Appellants are the Commonwealth of Pennsylvania; Pennsylvania Public Utility Commission (“PUC”); Office of the Attorney General of Pennsylvania; and the Pennsylvania Department of Environmental Protection (“DEP”).
The Petitioners argued that Act 13 is an unconstitutional violation of: 1) Article I, Section 1 of the Pennsylvania Constitution; 2) Section 1 of the 14th Amendment to the United States Constitution; 3) Article III, Section 32 of the Pennsylvania Constitution; 4) Article I, Section 27 of the Pennsylvania Constitution; 5) Article III, Section 3 of the Pennsylvania Constitution; 6) Due Process Principles; and 7) The Doctrine of Separation of Powers. The legal challenge was considered essentially important for the Appellees because Act 13 guts local zoning of gas and oil operations and endangers public health, natural resources, communities and the environment.
On July 26, 2012 the Commonwealth Court declared the statewide zoning provisions in Act 13 unconstitutional, null, void and unenforceable. The Court also struck down the provision of the law that required DEP to grant waivers to the setback requirements in Pennsylvania’s Oil and Gas Act. On October 17, 2012 the Pennsylvania Supreme Court heard argument that Pennsylvania’s Act 13 is unconstitutional, unjustly supersedes all local ordinances related to oil and gas operations, extinguishes municipal zoning of these operations, and exposes the public and the environment to pollution and degradation from these activities. Attorneys for the case appeared before the Court, which heard the Commonwealth’s appeal of the Commonwealth Court’s declaration that overturned the municipal preemption provisions and environmental waiver provisions of Act 13.
The Court has been deliberating the case since argument was heard more than a year ago.
Original Petitioners in Legal Challenge
Township of Robinson, Washington County
Township of Nockamixon, Bucks County
Township of South Fayette, Allegheny County
Peters Township, Washington County
Township of Cecil, Washington County
Mount Pleasant Township, Washington County
Borough of Yardley, Bucks County
Delaware Riverkeeper Network and the Delaware Riverkeeper
Dr. Mehernosh Khan
Municipalities represented by Natural Resources Defense Council as Friends of the Court
Wilkins Township, Allegheny County
East Finley Township, Washington County
Tinicum Township, Bucks County
Municipality of Murrysville, Westmoreland County
Municipality of Monroeville, Allegheny County
Borough of Bell Acres, Allegheny County
City of Bethlehem, Northampton and Lehigh Counties
Other Amicus Briefs filed in support of Commonwealth Court decision
Pennsylvania Chapter of the American Planning Association
Pennsylvania State Association of Boroughs
Pennsylvania State Association of Township Supervisors
Pittsburgh City Council
Mountain Watershed Association
Nonprofit organizations represented by Earthjustice as Friends of the Court
Berks Gas Truth
Brockway Area Clean Water Alliance
Clean Air Council
Clean Water Action
Damascus Citizens for Sustainability
Earthworks, Environmental Defense Fund
Gas Drilling Awareness Coalition of Luzerne County PA
Group Against Smog and Pollution
Pennsylvania Division of the Izaak Walton League
League of Women Voters of Pennsylvania
Lehigh Valley Gas Truth, Local Authority Western PA
Marcellus Outreach Butler
Marcellus Protest
PennEnvironment
Responsible Drilling Alliance
Sierra Club
Thomas Merton Center
Westmoreland Marcellus Citizen’s Group
###
Tracy Carluccio
Deputy Director
Delaware Riverkeeper Network
925 Canal St., Suite 3701
Bristol PA 19007
Phone: 215.369.1188 ext 104
Cell: 215.692.2329
Fax: 215.369.1181
To remind us all to Remember the River in every decision we make;
And to hold our elected officials accountable to do the same.
PA Supreme Court Strikes Key Part of Marcellus Law
A Citizen’s Response to Your Forbes Opinion Piece –
September 24, 2012
[NYGCG] A Citizen’s Response to Your Forbes Opinion Piece –
Dear President Skorton and Vice President Altschuler:
I would like to respond to your September 24th opinion piece in Forbes magazine, http://www.forbes.com/sites/collegeprose/2012/09/24/fracking-a-role-for-universities/ for I am a concerned citizen with many family members living in the Finger Lakes region which I have been blessed to call home. As you are also residents of this region, I think you would agree that the rare natural beauty of the lakes – especially now with the lovely fall foliage and the smaller but still-wonderful apple harvest — is an inheritance requiring diligent stewardship and care, even more so at a time when climate change is altering the most hardy of ecosystems.
Cornell, as upstate New York State’s sole land-grant university, has a unique and special responsibility to engage its students and also the public, through extension and outreach, on issues that affect all of us, such as the prospect of unconventional gas drilling and development. I like Michael Whalen’s apt summary of that responsibility: “Cornell’s motto of being ‘an institution where any person can find instruction in any study’ is an elegant restatement of that land-grant mission – the proposition that a land-grant university should be expansive, endlessly adaptable and always relevant to the needs of society.”
I would like to address hydrofracking in the context of local and global energy needs, and ask you to more deeply explore how Cornell can best demonstrate its ability to be “endlessly adaptable and always relevant to needs of society.” In a spirit of respect for your opinion that hydrofracking can be done safely with good partnerships among academic, industry and government, I would like to address some of your statements, in order, with an appreciation of the complexities and realities you are faced with as academic leaders.
1) You stated: “Supporters [of fracking], including the American Petroleum Institute, assert that shale gas is a ‘game changer’ for U.S. energy independence, a boon to economically depressed communities, a source of new jobs, and a cleaner ‘bridge fuel’ that can transition us from coal to renewable energy sources.” Last week John Hofmeister, the founder and CEO of Citizens for Affordable Energy and a former president of Shell Oil Company was quoted by the Yale Daily News saying “natural gas is not a bridge but rather ‘a highway to the future.’” When a former president of Shell makes a case for the long-term prominence of shale gas, the public needs to be informed of the implications of this shift , which extends well beyond the “bridge-to-renewables” viewpoint that was, until recently, espoused by the industry.
2) You say: “We also believe that good public policy must be evidence-based.” Indeed, New York State has numerous physicians, academics, environmentalists, economists, students, and other concerned citizens who are in full agreement here.
3) You further state: “Despite the voluminous reports that have been generated about fracking, there is still a great deal that we do not know. At Cornell, for example, researchers have reached opposite conclusions on whether natural gas from fracking would be better or worse for climate change than burning coal.” It is unfortunate that many landowners in New York State did not have the benefit of such evidence-based information before they committed to signing shale-gas leases they did not wholly understand.
4) You state: “So Cornell’s Ithaca campus, which is located on the edge of the vast Marcellus Shale deposit, has placed a moratorium on fracking on our own land until we have better information about it.” It would follow, then, that Cornell Cooperative Extension ought to have advised and should continue to advise landowners, similarly, to refrain from signing gas leases.
5) You state: “…the [ U.S. Secretary of Energy Advisory Board’s Shale Gas Production] subcommittee, proposed that the responsibility for data collection and monitoring fall to federal, state and local governments and to industry itself—inviting public perceptions that lobbyists will influence policies and that the foxes are guarding the henhouse.” It also should be noted that the Chairman of that subcomittee, Dr. John Deutch, is a director at Cheneire Energy, which in itself perhaps may contribute to a public perception that “the foxes are guarding the henhouse.”
6) You state: “We believe that universities can bring a reputation for independence to these investigations. And many universities are already collaborating with government and industry to promote economic development and the public good.” It ought to be mentioned here that in the particular case of hydraulic fracturing studies, several universities have recently come under fire for industry funding and/or collaboration. It would seem that Cornell can avoid such criticisms by encouraging the University’s talent to lead the way forward to truly sustainable technologies, free of industry-funded “encouragement” to advance one technology over another.
7) You state: “Last month in a Washington Post column New York City Mayor Michael Bloomberg, founder of Bloomberg Philanthropies, and George P. Mitchell, philanthropist and hydrofracking pioneer, offered their foundations’ support to ‘organizations that seek to work with states and industries to develop common-sense regulations that will protect the environment—and ensure that the [fracking] industry can thrive.’ We urge other foundations—and government officials—to enlist universities in the development of evidence-based public policy and safer fracking operations.” The Environmental Defense Fund is accepting $6 million from Mr. Bloomberg, and is committed to the “safer” fracking ideal. However, most environmental groups, like National Sierra Club and NRDC, have very recently become much more critical of fracking, in policy reversals which, in at least one instance, followed directly after severing financial ties to natural-gas interests.
8) You say: “The questions before us are not only whether to frack, but how, where and with what safeguards in place.” Indeed, in New York State, there still remains the question of “whether” to frack: “Gov. Andrew Cuomo has said he will decide whether to allow high-volume hydraulic fracturing, or ‘fracking,’ only after the DEC review that began in 2008 is completed.” (Associated Press)
9) You say: “With natural gas supplies plentiful for now and prices relatively low, we have time to make sound decisions about our shale gas resources.” I would only hope that these sound decisions are made to help people, not multi-national corporations that are working hard to deregulate the industry, defang the EPA, and cynically campaign against entrepreneurial rivals working on renewables.
10) You say: “In creative partnership with government and industry, universities can help make sure we get it right.” Why not say “In creative partnership with government and industry, universities can help make sure we can more quickly move beyond fossil fuels”?
In the spirit of your editorial, I, too, would like to encourage further dialogue and am happy to forward any response that you prepare.
Sincerely,
Lisa Wright
GDACC 
