First, we pause to say "Hallelujah!" Key portions of Pennsylvania's Act 13 were overturned Thursday, 12.19.13: "Act 13 is the legislation that allowed the state government to supersede local control and mandate local ordinance changes to accommodate natural gas extraction in the state."
But what deserves a double scoop of "Hallelujah!" is the reasoning behind Republican Chief Justice Castille's delivery of the 4-2 decision:
“Act 13’s primary stated purpose is not to effectuate the constitutional obligation to protect and preserve Pennsylvania’s natural environment,” the majority decision read. “Rather, the purpose of the statute is to provide a maximally favorable environment for industry operators to exploit Pennsylvania’s oil and natural gas resources, including those in the Marcellus Shale Formation.”
In other words, Act 13 clearly violates Article 1, Sec. 27, or the Environmental Rights Amendment of the state’s Constitution:
The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania’s public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.
The reaffirmation of the Environmental Rights Amendment, however, not only empowers local governments with respect to drilling, it also must be seen as an opportunity to empower and reinvigorate the growing movement to put a halt to every other piece of frack-happy industry favoring legislation--including Republican House Representative Jeff Pyle's Endangered Species Coordination Act, (HB 1576/SB 1047) :
The legislation has four main elements: 1) standardizes a state process for listing of threatened or endangered species by formalizing existing resource agency authority via rulemaking; 2) consolidates the listings into a centralized database managed by the Department of Conservation and Natural Resources; 3) grants access to information in the database to planners required to consider the impacts that a project could have or to those involved in conservationist efforts; and 4) protects sensitive data by prohibiting the disclosure of the information to anyone not involved in a development or conservation project. Another benefit of this legislation is that it places the decisions of the Pennsylvania Fish and Boat Commission and Pennsylvania Game Commission under the review of Independent Regulatory Review Commission. As Pennsylvania’s last two remaining extra-governmental promulgated rule making bodies, the right of our concerned citizens to exercise due process in appealing a decision would, for the first time, have a forum to do so with the IRRC. The legislation does not, however, address or direct any establishment of seasons, bag limits, et al. (http://www.legis.state.pa.us//cfdocs/Legis/CSM/showMemoPublic.cfm?chamber=H&SPick=20130&cosponId=12965).
But here are the plainly spelled out consequences if HB 1576 passes:
Severely restrict the ability of state agencies to designate any species as threatened or endangered unless those species are first listed under the federal Endangered Species Act. Part of the goal of state conservation efforts is to prevent species declines in regions and to head off a federal listing in the first place.
Severely restricts the ability of the Pennsylvania Fish & Boat Commission (PFBC) to designate a wild trout stream.
Bring any action by the Pennsylvania Game Commission and the PFBC to designate threatened or endangered species, or a wild trout stream in the case of the PFBC, under the Regulatory Review Act. This action would result in significant delay for species listings and stream designations, and politicize decisions that should be made on the basis of sound science.
Remove within two years of the effective date of the bill all species now listed as threatened or endangered at the state level in Pennsylvania, unless the agency is able to re-designate the species under the severe and difficult restrictions imposed by the act. (http://pfsessiondaze.blogspot.com/2013/08/house-hearing-scheduled-on-bill.html)
In other words, decisions about what counts as an endangered species would depend no longer on scientific evidence and expertise, but on political expediency.
The Endangered Species Coordination Act has much in common with Act 13, but at bottom what they share most intimately is the wholesale trouncing of the Environmental Rights Amendment in favor of, as Chief Judge Castille put it, "a maximally favorable environment for industry operators to exploit Pennsylvania’s oil and natural gas resources" at the cost of the human communities and the ecology of the Commonwealth.
The connection to the specifics of HB 1576 are simple: endangered species of animal and vegetation inhabit--just as their less endangered fellows--the ecologies underneath which lay the Marcellus Shale. Getting to the gas requires the disruption and destruction of that ecology. The critters, flora and fauna are in the way. Insuring a "maximally favorable environment" for drilling therefore requires getting them out of the way, and if they're endangered, well, that could mean their extinction. Too bad. There's money to be made.
The trouble, of course, is that there is no loss of one species of critter or vegetation without potentially affecting the entirety of a particular ecosystem (consider, for example, relationships of predator/prey, parasite, symbiosis, fertilization, etc). Hence, any piece of legislation that so clearly threatens to endanger species already endangered also threatens the ecosystems upon which that species depends--and that clearly violates the Environmental Rights Amendment.
End of story.
It's stunning, in fact, that anyone would append their name to so bald a violation--yet, when it's the gas industry or their own parasites, "bald" seems to be the order of the day:
Since the entirely fake hearings conducted Summer 2013--hearings that allowed for no public comment-- a letter signed by 25 industries, each of whom would directly or indirectly benefit from the elimination of protections for the state's endangered species, was posted in support of HB 1576. Here's just a sample
George Ellis
President
PA Coal Alliance
Terrance J. Fitzpatrick
President and CEO
Energy Association of Pennsylvania
Lou D’Amico
President and Executive Director
PA Independent Oil &Gas Association
Stephanie Catarino Wissman
Executive Director
Associated Petroleum Industries of PA
Kevin Shivers
Executive Director
National Federation of Independent Businesses
Jacob Smeltz
President
Electric Power Generation Association
David Taylor
Executive Director
Pennsylvania Manufacturers Association
John M. Becker
Executive Director
American Concrete Pavement Association
Pennsylvania Chapter
Duane Feagley
Executive Director
PA Anthracite Council
Now, we might imagine each of these folks waking up today to the overturning of Act 13 and experiencing an epiphany about the significance of clean air and water--but I doubt it. In fact, what I predict is that they'll double down in the effort to get SB 1576 passed ASAP as a rearguard defense against the people of the Commonwealth--but in favor of the industry that fills their pockets.
Clues to the strength of my prediction were on display at the Empire Beauty School hearing in Pottsville, 8.26.13:
Consider the comments of William J. Parulis of the PA Anthracite Council and owner of WJP Engineers (www.wjpengineers.com/index.php/about-us/william-j-parulis/) who argued that environmental restoration efforts made by the coal industry were actually impeded by the onerous requirements imposed by an endangered species act that actually protected endangered species. In effect, he argued, protecting endangered species was bad for the environment! This is, of course, just another way of saying that environmental protections--including protections for endangered species--are bad for the industrialized extraction industry.
Seriously.
But if we think that Parulis' logic is contorted, we might consider Rep. Pyle's. As reported by Sean Kitchen of Raging Chicken Press (8.27.13):
Representative Pyle claimed that he authored the bill because of a government shakedown against his school district during a renovation project that affected the habitat of the Indiana bat. The school district paid $61,800 to the Indiana Bat Fund and the donation was 0.1 percent of the total budgeted project. At the same time of these events, John Stilley’s – Representative Pyle’s largest campaign contributor – company, Amerikohl Mining, filed a lawsuit against the Pennsylvania Game Commission and the United States Fish and Wildlife Services for a $316,000 donation to the Indiana Bat Fund. (http://www.ragingchickenpress.org/2013/08/27/breaking-oil-and-gas-industry-writes-letter-in-support-of-endangered-species-destruction-act/).
In other words, Rep. Pyle's motives are, by his own admission, retributive and explicitly consistent with his "largest campaign contributor" Amerikohl Mining.
But Rep. Pyle is not alone in his penchant for graft and corruption.
Here is the list of PA state senators who co-sponsored HB 1576/SB 1047, and the campaign donations they received from the gas industry:
Brubaker $7,900.00
Kasunic $33,500.00
Waugh $3,750.00
Yudichak $6,025.00
Erickson $5,900.00
Rafferty $5,350.00
D. White $94,150.00
Hutchinson $16,350.00
Fontana $3,100.00
Scarnati $359,145.72
Mensch $3,000.00
Gordner $3,800.00
Tartaglione ----
Brewster ----
TOTAL = $522,520.72 in direct gas industry campaign contributions.
Here is the list of PA house supporters:
Pyle $48,961.68
Gergely $13,900.00
Kaufman $1,950.00
Jay Costa $21,850.00
Bloom $648.00
Helm $1,050.00
Harhai $19,800.00
Rapp $3,650.00
Goodman $500.00
Cutler $900.00
Gibbons $3,350.00
Marshall $2,800.00
Harris $1,920.00
Reed $137,532.33 (the winner in the house)
Pickett $7,050.00
Everett $3,590.00
Keller $2,150.00
Swanger $600.00
Knowles $450.00
Metcalfe $40,850.00
Dunbar $4,400.00
Sonney $550.00
Grove $950.00
Krieger $7,450.00
Reese $1,800.00
Stevenson $13,850.00
Neuman $7,800.00
Sankey ----
Causer $7,500.00
Saccone $4,000.00
Rock ----
Godshall $11,000.00
Tobash $250.00
Murt ----
Brown $4,500.00
Paul Costa $4,150.00
Davis ----
Burns $470.00
Daley $7,150.00
English ----
Tallman $250.00
Baker $11,200.00
Barrar $1,200.00
Christiana $7,250.00
Ellis $35,150.00
Evankovich $5,600.00
Kortz $2,850.00
James ----
Kula $1,475.00
Major $6,800.00
Metzgar $1,000.00
Moul ----
Mustio $9,175.00
Oberlander $3,525.00
Toohil $375.00
Snyder ----
Pashinski $1,775.00
Readshaw $4,350.00
Roae ----
Saylor $11,250.00.
TOTAL = $489,022.01 in direct gas industry campaign contributions. That does not include campaign contributions from the coal industry, the factory farm industry, the commercial construction, or any of the ancillary industries that are connected to these industries, or by industry lobbyists and representatives under their own names.
The thing is, this is all pretty predictable.
What's more troubling--and must, I think, keep us from thinking that the overturning of Act 13 is cause for celebrating more than a day is this: despite the fact that the Pennsylvania Game Commission and the Pennsylvania Fish and Boat Commission both joined Rep Greg Vitali in opposing SB 1576, the latter's director John Arway nonetheless concedes to the gas industry the essential violation of the Environmental Rights Amendment of the Pennsylvania Constitution:
Arway continued, "As I told the committees in September, we are not the obstacle to development that some have claimed us to be. It takes our staff an average of 30 days to complete Pennsylvania Natural Diversity Inventory (PNDI) reviews in general, with Marcellus reviews averaging less than 20 days and PennDOT reviews averaging less than 15 days. In addition, it is significant to note that of the 16,600 PNDI searches in 2012, only 124, or less than 1 percent, resulted in surveys being requested by our agency. We take our responsibility of advising business, individuals, and other agencies seriously, and we know that the best way to do our jobs is by being as cooperative and timely as possible. "Indeed, our commitment to work with industry is not new. As part of the Natural Heritage Partnership, our staff have been carefully working to develop mapping areas that show the habitat needs of rare species with the ultimate goal of getting the information into the hands of developers early in their decision-making process so they can plan their projects better - saving everyone time and money while protecting the species we are entrusted to conserve." (http://www.timesobserver.com/page/content.detail/id/567830/Endangered-species-bill-contentious.html).
This is pro-frack double speak if ever there was. While, on the one hand, Arway insists that the science should govern decision-making about what to classify as an endangered species, on the other, he insists that fracking can be done safely. State Rep. Rick Mirabito, D-Lycoming, makes the point explicitly, pointing out that "the legislation flies in the face of the legislature's constitutional requirement to protect the environment" (http://www.timesobserver.com/page/content.detail/id/567830/Endangered-species-bill-contentious.html).
"We have an obligation to protect the environment," Mirabito said. "It's not a choice; it's an obligation. It's a civil right for the people of Pennsylvania."
The very idea that fracking can be conducted without serious and potentially devastating consequences for sensitive ecologies flies directly in the face of the science which shows to the contrary--particularly given the long term effects for ecologies, including their compliment of species, of climate change.
Mr. Arway cannot not know this. Therefore, the only conclusion to be drawn is that he's opted for what I have called the concession rhetoric of the "middle ground":
The truth can be counted on to lay somewhere in “the middle,” where “the middle” is invariably some “compromise” between opposing factions, and where “everyone” can feel good that their interests have been met more or less in that “middle.” This “truth” via consensus can then be promoted as “reasonable,” and “just” and anyone who seeks to counter it with opposing facts or a challenge to its reasoning can be cast as irrational, an extremist—even a terrorist if they persist in pointing out evidence contrary to “the middle ground” or to the “consensus” alleged in its defense. (http://thewrenchphilosleft.blogspot.com/2013/10/sustainable-shale-development-middle.html).
The trouble with this form of reasoning, I argued, is that
truth is entirely independent of the interests of any party. Truth doesn’t care whether folks get their way. Truth is not the product of consensus. Truth is what is supported by an objective evaluation of the facts where the facts have been presented honestly—without exaggeration, cherry-picking, or other distortion—and where evaluation steers clear of fallacious, biased, or interested “reasoning.” Truth does not present itself to us for approval. When the facts do not support what we want to believe, we should change our minds—even if it’s hard. And that’s it.
So as we rightly and raucously celebrate the reaffirmation of the rights of Pennsylvanians to breathe clean air, drink clean water, and enjoy the state's immense ecological beauty, let's also reaffirm our commitment to insist that our representatives abide the Constitution, and that those appointed to be stewards of the environment do their jobs.
Or--better--let's offer very loud and very public memory to this fact:
While the Pennsylvania Supreme Court did make the right call this time, legislation in clear violation of human rights and the rights of ecosystems themselves becomes law far too often. That Act 13, HB 1576, and so many other frack-friendly bills even get out of committee (even get out of the gas-fueled heads of their writers) provides clear evidence that the law itself is drafted for the benefit not of the people, but for the industry. As The Community Environmental Legal Defense Fund (CELDF) shows, the history of property and rights in the United States is one which consistently empowers corporations at the expense of communities and individuals.
So, with this in mind, let's get ready for a new year--a 2014 dedicated to re-empowering communities consistent with the right to an environment--to a planet-- not merely sustainable--but the one our grandchildren will leave behind as the most beautiful in the universe.
Wendy Lynne Lee
Shale Justice
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