Fracking, home rule and sports related development all rolled into one

In 2010 the City of Pittsburgh became the first municipality to ban fracking within its city limits. Gas companies had acquired subsurface mineral rights and had been poised to begin drilling throughout the city including under parks and cemeteries. The ordinance, which was drafted by the Community Environmental Legal Defense Fund (CELDF), takes the somewhat novel approach of enacting a bill of rights not only for the residents of Pittsburgh but also for “natural communities and ecosystems”. It goes beyond even that by stripping corporations of their “personhood” status under the Pennsylvania and U.S. Constitutions. The ordinance, which was passed unanimously, became effective despite the mayor’s refusal to sign the measure. It is worth nothing that Pittsburgh sits at the epicenter of the Marcellus Shale gas drilling frenzy.

Two years later numerous communities have enacted tracking bans though in most cases by way of zoning actions not the kind of rights-based ordinance that Pittsburgh and a few other communities have enacted. Recently the Pennsylvania Legislature adopted Act 13 which strips local governments of the authority to regulate or prohibit any gas drilling or related activities through zoning. This legislation was aimed at overturning a 2009 Pennsylvania Supreme Court opinion which held that local zoning could regulate gas drilling and such efforts were not in conflict with the state’s oil and gas laws.

Seven Pennsylvania municipalities have filed action to overturn the law, and Pittsburgh’s City Council has voted unanimously to support that┬álegal challenge. A lower court has already issued a preliminary injunction delaying the implementation of Act 13 and at least for the moment leaving in place local fracking bans.

Back in Pittsburgh some developers are raising concerns about the possible impact of that city’s ban on downtown office development. The concern is that major energy and gas drilling companies will be reluctant to lease office space in a city that officially opposes their core business. Apparently, the mayor has tried to no avail to get the City Council to reconsider its ban. The Penguins’ 3 million square foot mixed-use project is one of those ┬áthat is potentially affected.

Since the Marcellus Shale formation does not extend into Vermont, I was only dimly aware of the controversy swirling around fracking in states to our west. However, since starting to follow the coverage of the issue, it is clear to me this is a matter of great significance not only in terms of exploiting a new, domestic source of energy but in terms of environmental protection and local versus state land use regulation.

 

 

 

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