In Pennsylvania—a central target for natural gas drilling and the controversial drilling practice known as horizontal hydraulic fracturing, or "fracking"—local communities don’t have the legal authority to keep unwanted drilling from happening.
As fracking's impacts on water safety make headlines and public resistance to drilling grows, some towns have tried to use land use zoning to keep drilling companies out—but they can’t use zoning laws to stop an activity the state has declared legal. (At best, they can zone where the corporations site their drill pads. But since drilling is not vertical but horizontal, there’s no way to contain its impact on a community’s water and environment.)
Taking local control
One small community in western Pennsylvania wanted more say over what happens within its borders. Licking Township, population 500, chose to defy state law with its own local ordinance, banning corporations from dumping fracking wastewater within its borders. Licking sits atop the Marcellus Shale, a geological formation that contains large and mostly untapped natural gas reserves. On Oct. 12, 2010, the Licking Township Board of Supervisors voted unanimously to ban corporations from dumping fracking wastewater within the township.
"When it comes to land use issues and the preservation of important resources, the local community is best suited to set priorities as they feel impacts most acutely," said Mik Robertson, chairman of the Licking Township Supervisors.
Pennsylvania's preferential laws for drilling companies are not unique. For years, the drilling industry has worked closely with government to pave the way for widespread drilling, eliminating regulatory barriers that may stand in its way. The so-called “Halliburton Loophole” was inserted into the federal Safe Drinking Water Act to exempt companies drilling for natural gas, including those drilling in the Marcellus Shale (which extends from New York to West Virginia) from having to comply. Corporations have also been exempted from a host of other laws and regulations, and states have enacted laws pre-empting municipalities from taking steps to reign in the industry.
The residents of Licking felt that they should be the ones to decide what happens in their township. "People have the right to determine what is suitable for their community, as they are most directly affected by intended or unintended consequences of resource extraction,” said Robertson.
The dangers of fracking
The residents of Licking aren't alone in their concerns about fracking. Across the Appalachian highlands, residents worried about the health effects of fracking have been calling on their elected officials to protect them. In New York, a citizen movement convinced the state Senate to place a 9-month moratorium on the practice while its safety is evaluated. However, the moratorium is only temporary and has not been voted into state law.
Fracking involves pumping water laced with sand and a cocktail of chemicals underground to fracture the shale rock and release the natural gas. In the process, thousands of gallons of toxic wastewater are produced and can contaminate waterways and drinking water. Natural gas wells are often driven through aquifers.
The impacts from drilling can include exploding wells, groundwater contamination, and fish kills. Recently, the Pennsylvania Department of Agriculture quarantined cattle believed to have drunk from a frack wastewater spill. Their milk was no longer considered safe to drink.
A new study by researchers at the University of Buffalo found that fracking also releases uranium trapped in the rock, raising additional health concerns.
Collateral damage includes lost property value, drying up of mortgage loans for prospective home buyers, and the threatened loss of organic certification for farmers. And it’s not only rural communities feeling the pressure. In Pittsburgh and Buffalo (both of which straddle the Marcellus), gas extraction corporations have quietly signed leases with landowners to drill under the surface.
A new direction
Drafted with the help of Community Environmental Legal Defense Fund (CELDF), the “Licking Township Community Water Rights and Self-Government Ordinance” is the first of its kind in the nation.
The City of Pittsburgh is also considering a CELDF-drafted ordinance, which is scheduled for a vote on November 16. With an expected veto-proof majority of City Council members in favor, that ordinance would impose an outright ban on gas drilling by corporations within city limits. Communities across the Marcellus Shale region, including Lehman Township in eastern Pennsylvania, are also considering CELDF ordinances that would ban corporations from drilling or from extracting water to use in drilling.
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In addition to banning corporate disposal of frack wastewater, Licking Township’s ordinance asserts the right to local self-government and the community’s right to a healthy environment and to clean water. In adopting the ordinance, Licking joins more than a dozen other communities in legally recognizing the rights of nature and subordinating corporate constitutional rights to the rights of human and natural communities.
By recognizing the rights of nature, Licking is effectively protecting ecosystems and natural communities within the township from efforts by corporations to drill there—or by higher levels of governments to authorize that drilling. Residents of the community are empowered by the ordinance to enforce those rights on behalf of threatened ecosystems.
By prohibiting the introduction of frack wastewater into the Township’s environment, Licking’s new law effectively blocks hydro-fracturing. Critics of the ordinance claim that, by denying corporations that violate its prohibitions the civil rights protections conferred on them by the courts, the ordinance goes too far.
Robertson responds to these charges, saying, “People have rights, like the gifts of nature. People have rights to property. Property does not have rights. Corporations are property."
Corporations may sue to overturn the ordinance, with the argument that it violates their corporate constitutional rights. Such a lawsuit would finally raise imperative questions about whose rights trump whose: Do the court-endowed privileges of corporations override the inalienable rights of the people and ecosystems of Licking Township, nullifying their claim to have a legal right to their health, safety, and welfare? Or does the community have the right to make critical decisions to protect its well-being—and that of the ecosystems upon which it depends?
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